Delhi District Court
State vs Virender Kohli on 4 October, 2013
State vs Virender Kohli
FIR No. 485/06 PS Kirti Nagar
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN
MAGISTRATE08,WEST DISTRICT, DELHI
STATE VS. Virender Kohli
FIR NO: 485/06
P. S. Kirti Nagar
U/s 7 E.C. Act
Unique ID No. 02401RO127822008
JUDGMENT
Sl. No. of the case : 103/2(18.05.10)
Date of its institution : 29.01.2008
Name of the complainant : Insp. Naveen Kumar,
Enforcement Branch, Food
and Supply Department.
Date of Commission of offence : 04.10.2006
Name of the accused : Virender Kohli s/o Sh.
Darshan Lal, r/o6/44 A
Ramesh Nagar, Delhi
Properitor of M/S Punjab
Sweets at L78, Kirti Nagar,
Delhi
Offence complained of : 7 of Essential Commodities
Act.
Plea of accused : Pleaded not guilty
Case reserved for orders : 17.09.2013
Date of judgment : 04.10.2013
Final Order : Convicted
State vs Virender Kohli
FIR No. 485/06 PS Kirti Nagar
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the aforesaid accused upon the police report filed by P.S. Kirti Nagar, U/s 7 of Essential Commodities Act .
2. The prosecution story is that on 04.10.06 at about 5 PM at L78, Punjab Sweets, Kirti Nagar the accused was found in possession of domestic gas cylinder no, 4722I, 644235, 231507 and 180031 of Indane Company used for commercial activities in his sweet shop..
3. After completing the formalities, the investigation was carried out by police station Kirti Nagar and a chargesheet was filed against the accused. Charge was framed against the accused Virender Kohli on 02.02.2011
4. In order to prove its case, prosecution has examined ten witnesses.
5. PW1, Inspector Naveen Kumar from Food and Supply. He deposed that he alongwith A.K.Singh and O.P.Saini visited the business premises at M/S Punjab Sweet at L78, Kirti Nagar and on 04.10.06 inspected the premises in the presence of the accused. During inspection, they found four domestic LPG cylinders were being used for commercial activities. He further deposed that they seized all the four cylinders and prepared a recovery memo same is Ex. PW1/A bears his signatures at point A. He further deposed that the cylinders were released on superdari to M/S PC Gas Service, State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar H90, Kirti Nagar same is Ex. PW1/B. He further deposed that he made a written complaint to Anti Hoarding Cell and same is Ex. PW1/C bears his signatures at point A. He further deposed that on 06.10.06 he joined the investigation and handed over Ex. PW1/C, Ex.PW1/A, Ex. PW1/B, statement of accused Ex. PW1/D , all were taken into possession through seizure memo Ex. PW1/E bears his signatures at point X. He further stated that he handed over the deployment slip and same is Ex. PW1/F bears his signatures at point X. During chief examination, superdar has brought the two LPG cylinder bearing no. 644235 and same was correctly identified by the witness. Superdar has also brought the FIR no. 15/08 regarding theft of two LPG cylinders no. 47221 and 180031 alongwith the untrace report and the fourth cylinder has not been brought by the superdar.
6. PW2 Ramesh Kumar is the superdar of the case property. He deposed that on 04.10.06 he went at the shop of accused M/s Punjab Sweets and obtained four gas cylinder on superdari. He was also cross examined by the ld. defence counsel wherein he stated that he went at the shop of accused at about 7/7:30 pm and returned back to the godown at 7:45/8 PM. He further stated that the inventory mentioned in the seizure memo was already prepared by the Food and supply inspector and he signed the same only.
7. PW3 HC Abhay Singh is the duty officer and has State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar proved the registration of FIR Ex. PW3/A.
8. Pw4 Insp. Anand kumar and PW5 Insp. O.P.Saini who were posted as Inspectors in the Enforcement branch of department of Food supplies and consumer affairs had proved that on 04.10.06 he alongwith Insp. Naveen Kumar Singh and Ins. O.P.Saini went to M/s Punjab Sweets , L78 Kirti Nagar at around 5 PM and found that the accused who was owner of the shop was using domestic LPG cylinder of Indane Company for the preparation of Sweets and other eatings. He proved the statement of accused as Ex. PW1/D and seizure memo of cylinders as Ex. PW1/A.
9. PW6 Naveen Sharma has placed on record LPG control order 2000 Ex. PW6/A.
10. PW9 Insp. Arun Kumar has proved that he has received the complaint Ex. PW1/C alongwith all relevant documents. He seized them vide memo Ex. PW1/E. He has also made an endorsement on the complaint Ex. PW10/A and the rukka was handed over to Ct. Devender Kumar for registration of FIR. He went at the spot and prepared the site plan Ex. PW10/E. He also proved his application for disposal of case property made to the District Collector for disposal.
11. PW7 and PW8 SI S.P.Singh and Ct. Devender proved the investigation and arrest of the accused.
12. This is the overall prosecution's evidence in this case.
State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar
13. After the prosecution's evidence was closed, accused was examined u/s 313 Cr.PC wherein all incriminating evidence were put to the accused which he denied and had lead defence evidence. The accused has lead four defence witnesses. The accused has replied that the domestic cylinders seized were of use of his domestic household and he has only kept in the shop for the safety purpose because he did not want to keep them in his house.
14. I have heard Ld. Counsel for both the parties and perused the records of the case. It has been argued by Ld. APP for the State that prosecution is able to prove the case beyond reasonable doubt and therefore the accused be convicted.
15. On the other hand, it has been argued by defence counsel Sh. Ram Jeevan that the accused has been falsely implicated in this case. No public witness was made to join the investigation . The inspectors who deposed in the court did not have any authority of search and seizure nor such authority has been proved on record. It is also argued that the utensils which were used for preparation eatables were not seized during investigation. It is also argued that the complete case property has not been proved during evidence. It is also argued that there are contradictions in the testimony of witnesses. Therefore, leniency should be shown towards the accused.
State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar
16. Having dealt with the submissions advanced by both the parties, I proceed to adjudicate upon the most important question involved in the present case: Whether the accused is guilty of the offence with which he is charged or not.
17. Before coming to the factual issues let me discuss the legal aspects involved in this case. Section 3 of the Essential Commodities Act, 1955, empowers the Central Government to control production, supply, distribution thereof and trade and commerce therein, by order, if they are of the opinion that it is necessary or expedient so to do for maintaining or increasing supply of any essential commodities or for securing their equitable distribution and availability at fair price etc. Liquefied Petroleum gas (Regulation of Supply and Distribution) Order, 2000, was passed by the Central Government in exercise of the power conferred by Section 3 of the Essential Commodities Act, 1955. Clause 7 of Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000, provides prohibitions in respect of possession, supply or sale of liquefied petroleum gas equipments. Subclause 1(c) provides that :No person shall possess filled or empty cylinder, gas cylinder valve or pressure regulator, unless he is a distributor or a consumer.
Consumer is defined in clause 2(b) of the aforesaid order as :(b) 'Consumer' means a registered person, firm, company, institution, association of persons, cooperative State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar society or organisation, who has been granted liquefied petroleum gas connection or supply, either in bulk or in cylinder, by a distributor or a Government oil company or a parallel marketeer.
Clause 2(e) defines ' distributor' as 'distributor' means a person, firm, association of persons, company, institution, organisation or a cooperative society appointed by a Government Oil Company or parallel marketeer and engaged in the business of purchase, sale, or storage for sale of liquefied petroleum gas in cylinders to consumers on the basis of an agreement with a Government Oil Company or a parallel marketeer, as the case may be.
18. Now coming to the factual aspect. The case of prosecution is that the accused is the owner of a sweet shop namely Punjab Sweets at L78, Kirti Nagar, New Delhi who was using domestic LPG cylinders for commercial purpose. Therefore the point of determination is whether the accused Virender Kohli being the proprietor M/s Punjab Sweets was found unauthorisedly and illegally possessing and using for commercial purpose four domestic LPG cylinders, and thereby violated the provisions of Liquefied Petroleum Gas (Regulation of Supply and Distribution) order, 2000. On 4/10/2006, a raid was conducted by Inspectors of Enforcement branch of department of Food and supply and consumer affairs. The State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar accused was found using four LPG domestic cylinders for commercial purpose, the cylinders were of Indane Company. As per complaint Ex. PW1/C, one cylinder was less filled, the two were partly filled and the last one was fully filled. All the three witnesses namely Insp. Naveen Kumar, A.K.Singh and O.P. Saini have duly proved that accused was using domestic LPG cylinders for commercial activities. There is nothing in their cross examination which can impeach their credit or which can make their testimony unreliable. These witnesses have duly proved the day and time on which they went on the shop of the accused. They had proved the relevant documents on which the FIR was registered and the seizure memo through which the domestic cylinders were seized. There is no suggestion in the cross examination of these witnesses or their explanation in the examination of accused persons u/s 313 Cr.PC regarding any motive of false implication on behalf of complainant. It is not the case of the accused that he was not present at the spot of incident nor he plead any kind of alibi in this case. The testimony of the witnesses does not appears to be embellished or embroidered in respect of the offence committed. There is not much delay in the registration of FIR. The delay of 2 days can be attributed to the nature of case in which a decision making is involved for registration of a case as the complainant is govt. servant. In the present case, therefore the occurrence of the offence is proved by the witnesses against the accused and there State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar is no good reason to discard their testimonies which are found to be consistent and reliable and also inspires confidence. Testimonies of all the witnesses are corroborated with each other in material particulars.
19. Now, let me first decide as to whether the items shown in Ex. PW1/A ie. seizure list, in respect of four domestic LPG cylinder were seized from the possession of the accused. I have already discussed about evidence the recovery of cylinders from the accused. The defence could not make out any justifiable reason to disbelieve the evidence of three public officers of the Food & Civil Supplies Department. The defence also failed to prove existence of any enmity of these witnesses with the accused in order to satisfy the Court that they might had falsely or with ulterior motive or for any previous grudge, implicated the accused in this case and has falsely stated that the items mentioned in seizure memo were seized from the accused. Therefore, I do not find any reason to disbelieve the evidence of prosecution witnesses in respect of seizure of the items mentioned in seizure memo from the possession of the accused. From the above evidence on record there is no second/ alternate option before this Court than to believe and believe strongly without any iota of doubt/ suspicion that on the date of occurrence, four empty LPG domestic cylinders were seized from the possession of the accused.
20. Now, let me discuss as to whether the accused is a State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar distributor or a consumer as already discussed above. To be a consumer the person, firm, company etc. has to be granted L.P.G. Connection or supply either in bulk or in cylinder by a distributor or a Government Oil Company or a parallel marketeer. Similarly, to be a distributor a person firm etc. has to be appointed by Government Oil Company or parallel marketeer etc. as distributor.
21. P.W.1, Inspector Naveen Kumar the Supply Inspector, in his evidence has stated that before making Ex. PW1/A, the seizure list, he had asked the accused to show valid documents of the domestic LPG cylinder, but he failed to show any document to that effect.
22. Before discussing further on this point, it is important to refer Section 14 of Essential Commodities Act, which reads as under :
23. "14. Burden of proof in certain cases - Whenever a person is prosecuted for contravening any order made u/s 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permission, licence or other document, the burden of proving that he has such authority, permit, licence or other documents shall be on him."
24. As already decided above, that the prosecution has been able to prove that the accused was in possession of the seized items as shown in ExPW1/A and as such the burden State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar lies upon the accused as per section 14 of the Essential Commodities Act that he was having lawful authority, permit, licence or other documents in order to possess the same. It is very much surprising that in spite of giving chance to the accused to adduce evidence, he has failed to discharge his burden of proof as per section 14 of the Essential Commodities Act. Similar is the provision in section 106 of the Evidence Act which provides that when any fact is specially within the knowledge of any person, the burden to prove that fact is upon him. In view of the aforesaid legal position the accused was duty bound to discharge the burden to prove that he was a consumer or a distributor to possess such seized filled gas cylinders in his commercial place. But the accused has failed to discharge such burden while admitting the possession of such seized gas cylinder and regulator. Therefore, the possession of seized gas cylinders by the accused is found illegal and violative of Clause 7(c) of the Order,2000. No other view is plausible from the facts of the case.
25. Accordingly, it is held that the prosecution is able to establish the fact that the accused person on the fateful day was found in possession of Therefore, I am of the opinion that the accused have failed to discharge his burden to prove that he was the lawful possessor of the seized items. The accused has failed to prove that he is are a consumer or distributor of State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar domestic gas connections. In fact the accused is only able to prove a commercial gas connection in his name and not a domestic connection.
26. Now I deal with the defences raised by ld. defence counsel one by one.
27. The first defence is that no independent public witness was joined at the time of inspection of the shop and seizure of the cylinders. In the facts and circumstances of the present case, I do not think that it could be a decisive factor to acquit the accused. It has been a matter of common experience that the public persons are not interested to be made witnesses in criminal cases when they have no concern or interest in the outcome of the case. In the current days of deteriorating law and order situation currently prevalent in the society, strict compliance of the rules regulating search and seizure demands a rational approach. Very few local witnesses have the courage to depose against their powerful neighbours or habitual miscreants obviously for fear of life and honour. In almost all cases local or public witnesses come to the court to say that they signed blank papers on the asking of the law enforcing agency and they did not see the recovery of incriminating articles. A rigid view on the rules of search and seizure should not be blown to far, else we may be strayed in wilderness. In the absence of any special reason evidence of investigation related officials may be safely acted upon. There is no warrant of law to hold that the evidence State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar of members of law enforcement agencies must have corroboration from other sources. Hon'ble Supreme Court and Hon'ble High Courts has in number of cases held that the police witnesses are competent witnesses and the a case of prosecution should not be thrown out only because the public witnesses are not joined in the investigation and examined during the trial.
28. Hon'ble Supreme Court of India in Appabhai v.
State of Gujarat ( AIR 1988 SC 696) has been pleased to observe: "It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the busstand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensible when a crime is committed even in their presence. They withdraw both from the victim and the vigilant. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate but it is there, everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigation agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum or the prosecution version and search for the nugget of truth with due regard to probability if any, suggested by the accused."
29. In the case titled as Jawahar vs State Hon'ble Delhi High Court observed "As far as non association of public State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are :
the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
30. Therefore the aforesaid judgments clearly and categorically lays down a rule that the conviction can be based on the testimonies of police witnesses provided that they are State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar reliable and trustworthy and in the present cases already discussed there is nothing on record to discredit the testimonies of police witnesses.
31. Next defence of the ld. counsel is that the witnesses who went to the shop of the accused have not proved their written authorization of their search and seizure. As far as their defence is concerned the aforesaid order makes it clear that any official from the Central or State govt. nor below the rank of Inspector duly authorized by General/special order by Central or State Government can and search any place and seized stocks of LPG gas. This order makes it clear that search and seizure was conducted by the inspectors of the enforcement branch of the department of food and supply. The act they have done was done under official discharge of their duty. Exception 1 to section 91 of the Indian Evidence Act provides that when a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Despite not having an evidentiary requirement of proving this document, the authorization is placed on record which is mark A.
32. Next defence of the ld. defence counsel is that the complete case property has not been proved in the court as per the seizure memo. It is true that during evidence only two cylinders were brought on record which matched the seizure State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar memo but despite that it makes no difference because the accused has admitted that four domestic cylinders were lying in his shop at the time of search and seizure and his only defence is they were put there for safety purposes as he do not want to keep them in his house. The other two cylinders were not produced in the court because those two cylinders were stolen and an FIR was also registered in FIR no.15/08 and therefore there non production was sufficiently explained.
33. The other defence stated by ld. defence counsel is that the photographs of inspection has not been placed on record and that the witness who weighed the cylinders has not been examined on that there are contradictions of time in the statement of PW2 and other witnesses. I do not think these grounds are so material that it falsifies the case of prosecution. A case has to be decided on the basis of the facts which has been proved and cannot disbelieved only for the reason that some evidence which could have been brought on record have not been so brought unless they are so material to destroy the case of the prosecution. As far the weight of the cylinders is concerned, it is clear in view of the aforesaid order that even unauthorised possession of empty LPG cylinders will attract the penal provisions. The alleged contradictions between the testimony of the witnesses regarding time of inspection is minor and can be overlooked.
34. In view of the above oral and documentary evidence on State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar record, this Court has come to the conclusion that the prosecution has been able to establish the case against the accused beyond all reasonable doubts and he is found guilty of violating the clause 7(i)(c) of the Liquified Petroleum Gas (Regulation of Supply and Distribution) Order 2000 and thereby committing the offence u/s 7 of Essential Commodities act. The offence has become more grave because the accused was not doing this act due to any kind of necessity or compulsion but for the greed of making more profit because he has proved in defence evidence that he was having a commercial connection.
Announced in the open court On this 4th October, 2013 (Samar Vishal) Metropolitan Magistrate08, WEST, Tis Hazari Delhi State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE08,WEST DISTRICT, DELHI STATE VS. Virender Kohli FIR NO: 485/06 P. S. Kirti Nagar U/s 7 EC Act Order on Sentence Present: Ld. APP for State.
The convict present on bail with Counsel Sh. Ram Jeevan.
I have heard Ld. APP for State and Ld. defence counsel.
It is submitted by ld. APP for the state that the offence with which the accused is charged is punishable with minimum imprisonment of three months which may extend upto seven years and is also punishable with fine.
Ld. APP for the State has submitted that substantive punishment be given to the accused as he has committed the offence knowing and understanding its implications quite well. It is also submitted by Ld. APP for state that there is no limit of fine which may be imposed on the accused and there is no bar upon the court to award a sentence upto Rs 10000/ in view of section 12 of the EC Act 1955.
Ld. defence counsel has argued that accused is first offender and sole bread earner of his family and keeping in mind his young age, be released on probation.
State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar To this Ld. APP has replied that the accused is a previous convict and has been convicted by this court recently and therefore his case be not considered for probation.
I considered the submissions advanced by both the sides. The important question after the conviction of the accused is the adequacy of sentence. Once a person is tried for commission of an offence and found guilty by the court, it is the duty of the court to impose on him such sentence as is prescribed by law. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The main aim of punishment in judicial thought, however, is the protection of society. The accused has committed t he offence in the present case not under any compulsion but simply out of greed to earn more profits and for commercial purpose. Rule of law can only be maintained is each and every citizen of the country obeys the law as it is . Commercial use of domestic cylinders is a grave concern in our society and due to this the consumers of domestic cylinders faces various problems including the scarcity of domestic LPG cylinders.
The offence for which the accused is convicted is section 7 of Essential Commodities Act 1955 which is punishable with imprisonment which may extend upto seven years and with fine. The minimum punishment is provided under the Act which is three months which can be reduced for adequate and special reason.
State vs Virender Kohli FIR No. 485/06 PS Kirti Nagar However I do not find any special and adequate reason to reduce the sentence of the accused for less then three months . Considering the overall facts and circumstances of the case, the convict is punished with rigorous imprisonment for three months and with a fine of Rs 10,000. Fine paid. Copy of this judgment and order be given to him free of cost immediately under due acknowledgment. It is also made clear that the sentence in this case shall run concurrently with previous sentence of the accused, if any by any court, under section 427 Cr.P.C. Benefit of section 428 Cr.P.C if any be also given to the convict although the convict states that he never remained in custody in this case. Counsel for accused has moved an application that accused be released on bail U/s 389 Cr.PC for filing appeal. The application is allowed and the accused is released on bail for a period of 30 days for preferring appeal against the judgment of this Court subject to furnishing personal bond in the sum of Rs.10,000/ and one surety in the like amount. Sentence shall remain suspended for a period of 30 days. Bail bond furnished and accepted till next date of hearing.
Convict is directed to place on record the order, if any, of the suspension of sentence by Ld. Appellate Court on next date of hearing. Put up on 20.11.2013.
Announced in the open court On this 21st October, 2013 (Samar Vishal) Metropolitan Magistrate08, WEST, Tis Hazari Delhi