Delhi District Court
State vs . Vinod Kumar on 20 December, 2019
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTHWEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Vinod Kumar
FIR No. 1118/2004
PS : Uttam Nagar
U/s 7 of the Essential Commodities Act
Date of Institution : 11.04.2005
Date of reserving of order : 03.12.2019
Date of Judgment : 20.12.2019
JUDGMENT
1. Serial No. of the case : 8696/2019
2. Name of the Complainant : Amod Bharthwal
Vigilance
Food & Supply Department,
K Block, Vikas Bhawan
ITO, Delhi
3. Date of commission of offence : Between October to November
2004
4. Name of accused person : (1) Vinod Kumar
S/o Sh. Ram Sewak Yadav
R/o F4, Dwarka Puri,
Vinay Enclave, Delhi
(2) Ram Lal (since expired)
S/o Sh. Nathu Ram
R/o 574575, J.J. Colony,
Hasthsal, Uttam Nagar, Delhi
State Vs. Vinod Kumar etc.
FIR No.1118/2004 P.S. Uttam Nagar
Judgment dated 20.12.2019 Page No. 1 of 8
5. Offence charged : U/s 7 of Essential
Commodities Act, 1955
6. Plea of accused : Not guilty
7. Final Order : Accused no.1 Vinod Kumar is
Acquitted & Proceedings
against Accused no.2 have
abated in terms of order dated
14.08.2014.
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted alongwith one Ram Lal Proprietor of M/s Friends Kerosene Oil Depot for committing offence punishable under Section 7 of Essential Commodities Act, 1955 for violation of provision of Delhi Kerosene Oil (Export & Price) Control Order, 1962 i.e. for diverting 413 liters of kerosene oil in unauthorized channels for personal gain.
2. It has been alleged by the prosecution that the accused have issued 413 liters of kerosene oil against 24 blue cards during October November 2004 against cash memos despite the fact that aforesaid blue cards during the aforesaid period were deposited with the Vigilance Branch of the office of Commissioner, Food Supplies and Consumer Affairs Govt. Of NCT of Delhi and has thus violated the provisions of Delhi Kerosene Oil (Export & Price) Control Order, 1962. An FIR was thus registered at PS Uttam Nagar against the accused who was allegedly the salesman and the co accused who was the proprietor of aforesaid Kerosene Oil Depot. During investigation, State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 2 of 8 IO had collected the requisite documents from the complainant Mr. Amod Barthwal, Inspector Vigilance from the office of Commissioner, Food Supplies and Consumer Affairs Govt. Of NCT of Delhi.
3. Thereafter, the present chargesheet was filed for offence punishable under Sections 7 of Essential Commodities Act, 1955 for violation of provision of Delhi Kerosene Oil (Export & Price) Control Order, 1962. Cognizance of offence was taken and accused were summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
4. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 7 of Essential Commodities Act, 1955 for violation of provision of Delhi Kerosene Oil (Export & Price) Control Order, 1962 was framed against both accused on 15.10.2008, to which they had pleaded not guilty and claimed trial.
5. Prosecution has examined five witnesses in support of its case.
6. Duty officer PS Uttam Nagar HC Seema was examined as PW1 and she has proved the FIR Ex. PW1/A and endorsement regarding registration of FIR made by her on the rukka as Ex. PW1/B.
7. IO Inspector Arun Kumar was examined as PW2 who has proved the seizure memo of the 33 blue cards, statement of accused Vinod, copy of authorization of M/s Friends KOD, licence no.2826/84, recovery memo dated 02.12.2004 and the record as per State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 3 of 8 recovery memo as Ex.PW2/A. He has also proved rukka on the complaint already Ex. PW1/B and the site plan Ex. PW2/B. He has proved the arrest memos and personal search memos of both the accused from Ex. PW2/C to Ex. PW2/F and disclosure statement of both accused as Ex. PW2/G and Ex. PW2/H. 33 original ration cards were also duly identified by him during his evidence and the same are Ex. PW2/1 to Ex. PW2/33. He has also identified two stock registers recovered by Inspector Amod Bharthwal and same are Ex. PW2/34 and Ex. PW2/35. Two sales registers and seven cash registers were also identified by him as Ex. PW2/36 to Ex. PW2/44.
8. Complainant Sh. Amod Bharthwal was examined as PW3 and he has reiterated the averments made in his complaint which is already Ex.PW3/B regarding receipt of a complaint by him against M/s Friends KOD alongwith 33 original blue cards which are Ex.PW 2/1 to Ex.PW2/33, out of which 31 were found valid by him. He has deposed that he alongwith PW5 Inspector Lalit Mittal has visited the KOD on 02.12.2004 and recovered the record of the shop from accused Vinod vide memo Ex.PW3/A who was the salesman of M/s Friends KOD and on scrutiny of record found the release of 413 liters of kerosene oil against 24 cards to unauthorized channel for personal gain by the employee/owner of the alleged shop. He has identified all the documents seized by him including the blue cards.
9. HC Kallu Singh was examined as PW4 who was accompanying the IO SI Arun Kumar on 09.12.2004 to the office of PW3 and had got the FIR registered by taking the Rukka to the police State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 4 of 8 station. He has also proved the arrest, personal search and the seizure memo through which the IO had taken possession of all the documents.
10. Inspector Lalit Mital who had allegedly accompanied PW3 to M/s Friends KOD on 02.12.2004 and witnessed the seizure of record vide seizure memo Ex.PW3/A has been examined as PW5.
11. None of the aforesaid witnesses were cross examined by accused despite opportunity except PW5. Thereafter, the PE was closed vide order dated 27.07.2017.
12. It is significant to note that during pendency of the proceedings accused Ram Lal had expired and hence, proceedings against him were abated in terms of order dated 14.08.2014.
13. Statement of accused Vinod Kumar u/s 313 CrPC was thereafter recorded on 16.08.2017 wherein accused has claimed himself to be innocent and stated that he has been falsely implicated in the present case. Accused has chosen not to lead any evidence in his defence and hence, the matter was adjourned for final arguments.
14. Final arguments on behalf of State as well as accused were thereafter heard on 03.12.2019.
15. It is submitted by Ld.APP for State that the prosecution has been able to prove his case by way of uncontroverted testimony of PW1 to PW5 and hence, the accused Vinod Kumar should be convicted for the offence 7 of the Essential Commodities Act, 1955.
16. On the other hand, according to counsel for accused, prosecution has failed to lead even an iota of evidence against the State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 5 of 8 accused Vinod Kumar, much less, has the prosecution been able to prove its case against the accused beyond reasonable doubts. It is submitted by counsel for accused that even as per the case of prosecution, the accused was merely a salesman and hence, there was no occasion for him to divert the kerosene oil into unauthorized channels for personal gain. She has thus prayed for acquittal of the accused.
17. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record.
18. In a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. It is for the prosecution to travel the entire distance from may have to must have. If the story of the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. In the case in hand, even as per the case of prosecution, the accused Vinod Kumar was merely a salesman in M/s Friends KOD and it was accused Ram Lal who was the proprietor of the said firm. In terms of charge dated 15.10.2008, the accused has been charged for diverting 413 liters of kerosene oil into unauthorized channels for personal gain in violation of the provisions of Delhi Kerosene Oil (Export & Price) Control Order, 1962. The prosecution has been able to prove by way of uncontroverted testimonies of PW3 and PW5, which is duly corroborated by the stock registers Ex.PW2/34 and Ex.PW2/35, sales registers Ex.PW2/36 and Ex.PW2/37, cash State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 6 of 8 memos Ex.PW2/38 to Ex.PW2/44 and blue cards Ex.PW2/1 to Ex.PW2/33, that there was a diversion of 413 liters of kerosene oil into unauthorized channels against 24 blue cards which in original were lying in the Vigilance Department of Commissioner of Food Supply and Consumer Affairs. However, there is not even an iota of evidence on record that the said diversion had been done by the accused Vinod Kumar much less the same was done for his personal gain, in as much as, admittedly, accused Vinod Kumar was merely a salesman in the M/s Friends KOD and it was the accused Ram Lal who was the proprietor of the aforesaid firm. The prosecution has failed to prove that any of the cash memos Ex.PW2/38 to Ex.PW 2/44 were either in the handwriting or under the signatures of accused Vinod Kumar. It is significant to note that admittedly the stock and sales registers were got updated by PW3 from accused Vinod Kumar in his presence on 02.12.2004.
20. No doubt, as per the provisions of Section 7 of Essential Commodities Act, any person and not merely the proprietor, agent, retailer or licensee, whoever contravenes the provisions of any order u/s 3 of the Essential Commodities Act, is liable for punishment and hence, even a salesman if found violating the order promulgated u/s 3 of the aforesaid Act, is liable for punishment. However, the onus to prove the violation on the part of such salesman is upon the prosecution which the prosecution has failed to discharge in the present case.
21. In view of the aforesaid discussion, in my considered State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 7 of 8 opinion, prosecution has failed to prove the charge u/s 7 of the Essential Commodities Act, 1955 as framed against the accused on 15.10.2008 by leading any evidence, much less, beyond reasonable doubts. The accused Vinod Kumar is thus liable to be acquitted and is hereby acquitted of the charge u/s 7 of Essential Commodities Act, 1955. Personal Bond and Surety bond of the accused are cancelled. Surety as per surety bond dated 19.11.2013 is discharged. Endorsement, if any stands cancelled.
18. Accused has already furnished personal bond and surety bond in sum of Rs.30,000/ in terms of Section 437A Cr.P.C. on 18.12.2019. The same have already been accepted and shall remain in force for a period of six months from today.
19. Ordered Accordingly.
Pronounced in the open court on this 20th December 2019 This judgment consists of 8 signed pages.
(ARUN KUMAR GARG) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Vinod Kumar etc. FIR No.1118/2004 P.S. Uttam Nagar Judgment dated 20.12.2019 Page No. 8 of 8