Delhi District Court
State vs . Satish Kumar & Anr. on 5 February, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.233/07
PS Timarpur
State Vs. Satish Kumar & Anr.
U/s 7/10/55 E.C. Act
CNR No. DLCT-02-000640/2018
CIS No.296963/16
JUDGMENT
(a) Sr. No. of the Case 296963/16 (b) Date of offence 11.04.2007 (c) Complainant Inspector Rakesh Gupta
(d) Accused 1. Satish Kumar S/o. Sh. Ramesh Chand, R/o. D-
2. Satya Vihar, Burari, Delhi.
2. Smt. Vijaya Kumar W/o. Rajesh Kumar, R/o.
House No. 194, Kamaal Pur, Gali No. 6, Burari, Delhi.
(e) Offence 7 of Essential Commodities Act (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 02.02.2008 (i) Date when judgment was 05.02.2020 reserved (j) Date of judgment 05.02.2020 FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 1 of 19 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused persons Satish Kumar and Vijaya Kumari for the offence U/s 7 of Essential Commodities Act.
2. It is the case of the prosecution that on 11.04.2007, at FPS No. 9097, at A-13, Main 25 Foota Road, Nathu Pura, Delhi, accused Vijaya Kumari being the FPS license no. 9097 in association with Satish Kumar were found having misappropriated 2.49 qtl. of rice for APL category, and 3 KG of flour in violation with the PDS (Control) Order 2001 and Delhi Specified Articles (Regulation of Distribution) Order 1981 and thereby committed an offence under Section 7 of Essential Commodities Act.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused persons Satish Kumar and Smt. Vijaya Kumar.
4. Thereafter, charge under Section 7 of Essential Commodities Act was framed against the accused persons Satish Kumar and Vijaya Kumari vide order dated 06.11.2009 passed by Ld. Predecessor to which they pleaded not guilty and claimed trial.
5. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 2 of 19
6. In order to prove the guilt of the accused persons, prosecution examined as many as 09 witnesses.
7. PW-1 is H.P. Meena, who deposed that on 11.04.2007, he along with Enforcement officers namely Sh. Gopal, Ashish, and Inspector Sh. Rakesh Gupta along with members of Central Vigilance Committee visited FPS No. 9047 i.e. Mohit Store situated at 25 Foota Road, Nathu Pura, Delhi, that he met one Satish Kumar at the FPS, that he inspected the relevant record and carried out physical verification of specified food articles (SFA) lying in the depot, that it was found that the stock of rice under APL category was lying in excess by 2.49 quintal, that as per the record the quantity of APL rice was shown as nil, that in addition to it 3 kg flour was lying at the depot, that the excess rice was handed over to another FPS on superdari vide superdari memo at his directions, that the superdari was handed over at the spot, that on the basis of complaint of Inspector Rakesh Gupta later on FIR got registered, that except for this no proceedings was conducted in his presence.
8. In the cross examination by Ld. APP for the State, PW-1 admitted that the FPS No. which they had visited is 9097, that the license of FPS No. 9097 was in the name of Vidya Devi, that Satish Kumar was salesman at the said FPS, that they prepared recovery cum counting cum weighing memo Ex. PW-1/A at the spot, that documents mentioned at point B Ex. PW-1/A were also seized vide said memo Ex. PW-1/A, that statement of Mr. Satish Kumar was recorded, that documents mentioned at point B in seizure memo Ex. PW-1/A were also seized. Thereafter, Ahlmad produces one stock register, FPS No. 9097, M/s. Mohit Store, ukhmalpur, Delhi-36 from 13.02.2007 to 31.03.2007, APL +BPL+AAY and same is identified by the witness and stock register is Ex. P-1. Ahlmad also produces four sale registers, two of APL from 20.03.2007 to 28.03.2007 and from 28.03.2007 to 31.03.2007, one of BPL from 09.03.2007 to FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 3 of 19 21.03.2007 and one of AAY from 09.03.2007 to 22.03.2007, that witness has correctly identified the sales registers and sale registers are Ex. P-2, P-3, P-4 and P-5. Thereafter, Ahlmad produces 18 cash memos belonging to APL, BPL and AAY categories and witness correctly identified the cash memos and all the cash memos are collectively Ex. P-
6.
9. In the cross examination, PW-6 deposed that he reached at the spot at about 12:30/1:00 pm, that the said incident took place on 11.04.2007, that the Ex. P-5 was seized by him at the spot, that he had tallied the Ex. P-5 with cash memos though the same does not carry his initials, that the verification done by him also does not carry his signature or initials. He denied that he has not verified the Ex. P5 with cash memos, that on the date of inspection, the quantity was nil as per the stock register as verified with the cash memos. He admitted that the cash memos Ex. P-6 collectively also does not bear his signatures for the verification. He further deposed that he found a rice total quantity of which was 2.49 quintal which was in open condition and 3 kg wheat flour and in that month, they had not supplied any material though prior to that the same was supplied. He denied that the rice which was kept in the stock was displayed for the customers. He voluntarily deposed that the PDS outlet persons cannot keep such material in their shop. He denied that they had inspected the shop at lunch time after getting it opened. He further deposed that no sample of the rice was taken. He denied that no sample was taken as their department had not supplied the said rice, that with intention to harass the accused they had conducted the inspection during the lunch time. He admitted that none of the card holder had lodged any complaint with them in respect to the supply of FPS material. He further deposed that he made out the report Ex. PW-1/A at A-13, 25 Foota Road, Nathu Pura, that all the proceedings were done at A-13, 25 Foota Road, Nathu Pura, that there was no discrepancy in the accounts of the FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 4 of 19 accused maintained at the shop. He denied that he is deposing falsely.
10. PW-2 is Inspector Rakesh Gupta, who deposed that on 11.04.2007, he was posted as Inspector at Circle 55, Food and Supply Department, Jahangir Puri, Delhi, that he along with H.P. Meena Asst. Com., South West, Ashish Mishra, Gopal Kiroala (both Inspector of Enforcement Branch), Sh. Pritam Baruah, T.V.S.R. Shri S and Saket Sikari (all are the representative from central vigilance committee on PDS) on the supervision of the aforesaid CVC on PDS, they visited the business premises of M/s. Mohit Stores at FPS No. 9097 functioning at Khasra No. 4/23/1, A-13, Main 25 Foota Road, Nathu Pura, Delhi and contacted one Satish Kumar who introduced himself as salesmen of said FPS, that they introduced with the accused Satish by showing their I cards and they checked whole record of the aforesaid FPS available there, that they found that the license of the FPS stands in the name of Vijaya Kumari, that on checking the record of the aforesaid FPS, the stock was nil, however, after physical examination of said FPS they found that 2.49 quintal (excess) rice and 3 kg Atta found loose in the aforesaid premises, that the aforesaid act of the accused and the license of the FPS was in violation of PDS control order and Delhi Specified Articles (Regulation of Distribution) order 1981 issued under E.C. Act 1955, that they seized the aforesaid rice, atta, stock register, sale register, cash memos and card register of the aforesaid FPS vide recovery/counting/weighing memo Ex. PW-1/A and deposited the same in the nearby FPS, 4799 under the superdarinama Ex. PW-2/B. He further deposed that on 17.04.2017, he made a written complaint to in charge Anti Holding Cell, Food and Supply Department, GNCT of Delhi, that M-Block, Vikas Bhawan, New Delhi against the license Smt. Vijaya Kumari and Salesman Satish Kumar, that complaint is Ex. PW-2/A, that he handed over the written complaint, recovery memo along with the relevant documents, superdari memo, statement of the accused and photocopy order of the Delhi Specified FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 5 of 19 Articles (regulation of Distribution) order 1981 issued under E.C. Act 1955, to SI Arun Kumar, Anti Hoarding Cell which was seized by him vide production and seizure memo Ex. PW2/C, that the written complaint is Ex. PW-2/A, that the recovery memo is Ex. PW-1/A, that superdari memo is Ex. PW-2/B, that statement of accused marked as Mark A, that the photocopy of order is marked as Mark B.
11. In the cross examination, PW-2 deposed that they inspected the premises on 11.04.2007 at about 1:00 pm, that they received the call from the headquarter enforcement branch food and supply department for reaching at FPS in question. He admitted that they seized the stock register, sale register and cash memo of FPS in question, that specified food articles (SFA) comprises wheat, rice and sugar which were supplied to the FPS, that atta does not come under the category of SFA. He admitted that sample of rice was not taken separately from the FPS, that entries of cash memos were found mentioned in the entries shown in stock and sale register correctly. It is put to the witness where the entries shown in the stock and sale register were correct, to which he replied in affirmative. He admitted that FPS in question did not receive any SFA for the month of April 2007 till the inspection of the premises. He denied that excess stock found in the FPS in question was brought by the accused for his relatives for their personal use. He admitted that no ration card holder had made any complaint against the accused persons from January, 2007 till the date of inspection. He further deposed that he do not remember that after the registration of FIR whether any show cause notice was served upon the accused person by the department regarding the suspension of the license of FPS, that he do not remember whether any notice regarding the suspension/show cause notice has been quashed by the department which was served upon the accused. He denied that he is deposing falsely.
FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 6 of 19
12. PW-3 is Gopal Singh Kirola, who deposed that on 11.04.2007, he along with HP Meena Asstt. Com. South West, Rakesh Gupta (Inspector Circle 55,) Ashish Mishra (Inspector of Enforcement Branch), Sh. Pritam Baruah, T.V.S.R. Shreys and Saket Sikar (all are the representative from Central Vigilance Committee on PDS) on the supervision of the aforesaid CVC on PDS, they visited the business premises of M/s. Mohit Stores at FPS No. 9097 functioning at Khasra No. 4/23/1, A-13, Main 25 Foota Road, Nathu Pura, Delhi and contacted one Satish Kumar who introduced himself as salesmen of said FPS, that they introduced with the accused Satish by showing their I cards and they checked whole record of the aforesaid FPS available there, that they found that the license of the FPS stands in the name of Vijaya Kumari, that on checking the record of the aforesaid FPS, the stock was nil, however, after physical examination of said FPS they found that 2.49 quintal (excess) rice and 3 kg atta found loose in the aforesaid premises, that aforesaid act of the accused and the license of the FPS was violation of PDS control order 2001, and Delhi Specified Articles (regulation of Distribution) order 1981 issued under E.C. Act 1955, that they seized the aforesaid rice, atta, stock register, sale register, cash memos and card register of the aforesaid FPS vide recovery/counting/weighing memo Ex. PW-1/A and deposited the same in the near by FPS under the superdarinama Ex. PW-2/B by obtaining the signatures of licensing of the said FPS.
13. In the cross examination, PW-3 deposed that he do not remember whether they conducted the inspection on the basis of a private complaint or routine inspection. He further deposed that specified food articles includes wheat, rice & sugar, that at that time, atta was not specified food articles supplied by the department, that he do not remember what records pertaining to this case was seized at the time of inspection. It is put to the witness whether any infirmity found in the record seized from the fair price shop at the time of inspection, to which he replied that he do FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 7 of 19 not remember due to lapse of time but it is a matter or record. He further deposed that he do not remember whether accused Satish stated that the rice and atta was found in the fair price shop was purchased for personal use from M/s. Vinod General Store, that he do not remember whether any sample of rice was kept by department for verification, that no stock of SFA was issued or supplied in the month of April 2007 to the fair price shop (FPS Number 9097) as per record. He denied that he is deposing falsely.
14. PW-4 is Inspector Ashish Mishra, who deposed that on 11.04.2007, he along with H.P Meena Asstt. Com. South West, Rakesh Gupta (Inspector Circle 55,) Gopal Kirola (Inspector of Enforcement Branch), Sh. Pritam Baruah, T.V.S.R. Shreys and Saket Sikar (all are the representative from Central Vigilance Committee on PDS) on the supervision of the aforesaid CVC on PDS, they visited the business premises of M/s. Mohit Stores at FPS No. 9097 functioning at Khasra No. 4/23/1, A-13, Main 25 Foota Road, Nathu Pura, Delhi and contacted one Satish Kumar who introduced himself as salesmen of said FPS, that they introduced to accused Satish by showing their I cards and they checked whole record of the aforesaid FPS available there, that they found that the license of the FPS stands in the name of Vijaya Kumari, that on checking the record of the aforesaid FPS, the stock was nil, however, after physical examination of said FPS they found that 2.49 quintal (excess) rice and 3 kg atta loose in the aforesaid premises, that aforesaid act of the accused and the license of the FPS was violation of PDS control order 2001, and Delhi Specified Articles (regulation of Distribution) order 1981 issued under E.C. Act 1955, that they seized the aforesaid rice, atta, stock register, sale register, cash memos and card register of the aforesaid FPS vide recovery/counting/weighing memo Ex. PW-1/A and deposited the same in the near by FPS under the superdarinama Ex. PW-2/B by obtaining the signatures of licensing of the said FPS.
FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 8 of 19
15. In the cross examination, PW-4 deposed that he inspected the premises on 11.04.2007, at about 1:00 pm, that he inspected the premises on the instruction of Asst. Commissioner H.P. Meena, who was also present during the inspection, that during the inspection of the premises they introduce themselves by showing their official Id-Card and thereafter, recovered the relevant available record of FPS through recovery memo i.e. stock register, sales register and cash memos, that as per the stock register there was nil stock shown in the stock register, that on the physical inspection of the premises they found 2.49 quntal rice and 3 kg atta found in loose condition, that in genral wheat, rice and sugar are being supplied to FPS as specified food articles. He admitted that the atta found in the FPS was not supplied by the department. He further deposed that after the seizure of the record, it was scrutinized by the food and supply department officials and after taking the approval of commissioner food and civil supply department the FIR was lodged. It is put to the witness whether he found any infirmity in entries in stock register, cash memo and sale register during the inspection at the shop, to which he replied that the stock register shown a nil stock at the FPS however, 2.49 quintal rice was found during the physical verification. He admitted that fair price shop did not receive specified food articles during the month of April 2007. He further deposed that no sample of the rice was seized separately, that the excess stock of rice was given to supderdar M/s. Ganga Devi, that he cannot say anything regarding the complaint of any ration card holder against the accused as he was not officer in charge of that area. He denied that the seized excess stock was brought by the accused for his relatives for their personal use. He voluntarily deposed that since the salesman of the said FPS gave the statement that the said stock belongs to APL (above poverty line category). He further deposed that cash memos were in accordance with sale register and stock register upto 31 st March 2007, that he cannot say anything about whether the accused again started running the shop after FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 9 of 19 inspection. He denied that he is deposing falsely.
16. PW-5 is Inspector Anil Kumar, who brought the Delhi Specified Articles (Regulation of Distribution) order, 1981, and notification from Food & Supply Department, that the documents are Ex. PW-5/A and Ex. PW5/B, that witness has produced the computer generated copy of Public Distribution System (control) order 2001, that the copy of the same is Ex. PW-5/C.
17. PW-6 is ASI Ved Pal, who deposed that on 17.04.2007, he was posted as duty officer, that he got registered the FIR Ex. PW-6/A and made endorsement on the rukka Ex. PW-6/B.
18. PW-7 is Vijay Anand, who deposed that on 11.04.2007, he received a notice from their Enforcement Department of PS Timarpur to take the custody of rice approximate 2.49 quintal and 3 kg atta, that the supderari memo to that effect is Ex. PW-2/B.
19. PW-8 is ASI Devender, who deposed that on 17.04.2007, he was posted as a constable at anti hoarding Cell, M-block, Vikas Bhawan, ITO, that on the direction of SI Arun Kumar, he alongwith him went to K-block, Food and supply Department, ITO, where, they met with Inspector Rakesh, that inspector Rakesh handed over the documents of present case to SI Arun, that IO SI Arun prepared seizure memo which is Ex PW 2/C, that IO prepared the rukka and handed over to him for the registration of FIR, that he came back at the spot i.e. 4/23/1, A-13, 25 foota road, Nathu Purthe along with copy of FIR and original rukka and handed over the same to SI Arun, that they searched for accused but he could not found, that on 25.04.2007, accused Satish Kumar and Vijay Kumar came at office of Anti Hoarding Cell, M- block, Vikas Bhawan, that IO arrested both the accused vide arrest memo vide arrest memos Ex. PW 8/A and FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 10 of 19 Ex PW 8/B and also conducted personal search of accused Satish and prepared memo Ex. PW 8/C, that IO recorded disclosure statement of both the accused persons which are mark A and B both, that IO recorded his statement and relieved him.
20. PW-9 is Inspector Arun Kumar, who deposed that on 17.04.2007, he was posted as SI at Ante Hoarding Cell, Food and Supply Department, M Block, Vikas Bhawan, ITO, that Circle Inspector Akash Gupta from Circle 27 called him at their office at K block, Vikas Bhawa, ITO and handed over him a complaint and related papers which he seized by making production cum seizure memo Ex. PW-2/C, that he made endorsement on the complaint and prepared the tehrir Ex. PW-9/A and handed over the same to Ct. Devender for registration of FIR, that he recorded the statement of officials of food and supply department, that he went to the spot i.e. Mohit Store, fair price shop, Nathu Pura, that he prepared the site plan Ex. PW-9/B, that Ct. Devender came back at the spot along with copy of FIR & original rukka and same was handed over to him. He further deposed that on 25.04.2007, he arrested the accused persons i.e. Ms. Vijay Kumari and Satish from the office of the Anti Hording Cell, Food and Supply Department, M-Block, Vikas Bhawan, ITO vide memos Ex. PW-8/A and B, that he conducted the search of Satish Kumar and prepared memos Ex. PW-8/C and he recorded the disclosure statement of both the accused persons which are marked as Mark A & B.
21. In the cross examination, PW-9 admitted that he had prepared the site plan. He deposed that he had reached at the spot at about 7:30-8:00 pm., that he arrested the accused persons within half an hour. Witness was shown the site plan and after seeing the same witness stated that neither the shop number nor the address is mentioned on the site plan. He admitted that he had not entered in the shop. He further deposed that he do not remember if the fair price shop no. 9097 was sealed. He FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 11 of 19 denied that he had never visited the shop and prepared the site plan while sitting in the PS. He further deposed that Ct. Devender had reached the spot at about 7:00 pm. He admitted that no recovery was effected on the disclosure of accused persons, that no independent witness was examined by him.
22. It is pertinent to mention here that PW Rajesh was dropped from the list of witnesses vide order dated 20.04.2017.
23. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
24. Statement of the accused persons Satish Kumar and Vijaya Kumari under Section 313 Cr.PC was recorded vide order dated 11.12.2018 by Ld. Predecessor by putting entire incriminating evidence to the accused persons. They denied the allegations against them and stated that they have been falsely implicated in the present case. Accused persons chose to lead DE, accordingly, matter was fixed for Defence evidence.
DEFENCE EVIDENCE
25. In order to prove their defence accused persons examined only one witness namely Vinod Kumar in their defence
26. DW-1 is Vinod Kumar, who deposed that Satish took 249 kgs sela rice from his shop which he run in the name and style of Vinod General Store on 11.04.2007.
27. In the cross examination, DW-1 denied that he never sold 249 kgs of sela rice or any other rice of any description to accused Satish Kumar on FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 12 of 19 11.04.2007. He admitted that he never made any statement disclosing aforesaid alleged facts to police officer, who investigated this case or officers of Food and Supply Department exercising power in E.C Act or in court, that he never produced any original receipt showing the aforesaid alleged sale of 249 kgs sela rice to accused Satish Kumar on 11.04.2007 before police officer, who investigated this case or officers of Food and Supply Department exercising power in EC Act or in court at any point of time during investigation or trial of this case, that did not bring the original receipt showing the aforesaid alleged sale of 249 kgs sela rice to accused Satish Kumar on 11.04.2007. He denied that he could not produce any receipt showing the aforesaid sale in court as he never sold any quantity of rice on aforesaid date to accused Satish Kumar or any other date thereafter. He further deposed that he did not bring any proof that he was dealer in trade of rice or any other food article during relevant time. He voluntarily deposed that he do not deal in sale of rice etc. today. He denied that he had never worked as trader or dealer in rice or any other food article and for this reason he is unable to produce any original record of aforesaid alleged shop run by him or regarding alleged sale, that he had concocted a false story of selling aforesaid quantity of sela rice to accused Satish on aforesaid date allegedly in order to save accused persons from punishment, that he is deposing falsely at the instance of accused.
28. Thereafter, Defence Evidence was closed and matter was fixed for final arguments.
29. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 13 of 19
30. Perusal of the record reveals that accused persons Satish Kumar and Vijaya Kumar were charged with the offence under Section 7 of Essential Commodities Act.
31. It is the case of the prosecution that on 11.04.2007, at FPS No. 9097, at A-13, Main 25 Foota Road, Nathu Pura, Delhi, accused Vijaya Kumari being the FPS license no. 9097 in association with Satish Kumar were found having misappropriated 2.49 qtl. of rice for APL category, and 3 KG of flour in violation with the PDS (Control) Order 2001 and Delhi Specified Articles (Regulation of Distribution) Order 1981 and thereby committed an offence under Section 7 of Essential Commodities Act.
32. Perusal of the record reveals that as per the case of prosecution accused persons have misappropriated 2.49 quintal of rice of APL category and 3 kg of flour in violation of PDS Control year 2001 and Delhi Specified article (Regulation of Distribution) Order 1981. However, in the cross examination by Ld. Defence Counsel PW-2, PW-3 and PW-4 categorically deposed that atta does not come under the category of SFA and they have also admitted that atta found in FPS in question was not supplied by the Food and Supply Department, thereby they failed to support the case of prosecution so far as atta is concerned.
33. So far as allegations of rice are concerned, PW-1 categorically deposed in his cross examination that no sample of rice was taken separately from FPS, PW-3 deposed in his cross examination that he do not remember whether any sample of rice was kept by the department for verification. PW-4 also deposed in his cross examination that no sample of rice was seized separately thereby reflecting that admittedly there was no comparison done between rice seized and the rice supplied by the concerned department so as to establish that rice which was seized in the case in hand is the same which was supplied by the concerned FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 14 of 19 department. Furthermore, PWs categorically deposed that there was no discrepancy in the accounts maintained at the shop. PW-1 deposed in his cross examination that he has tallied the sale register with the cash memos and there was no discrepancy in the accounts of the accused maintained at the shop. PW-2 also admitted that entries of cash memos were found mentioned in the entries shown in the stocks register and sale register correctly. PW-4 also deposed in the cross examination that cash memos are in accordance with the sale register and stock register upto 31.03.2007. Aforesaid testimony of the witnesses reflects that there is no discrepancy in the accounts and gives an inference that all the material which was supplied by the concerned department has been duly supplied to card holders by the accused persons and therefore, it is doubtful that the rice which was seized in the case in hand is the one which was supplied by the Food and Supply Department.
34. All the entries in the sale register, cash memos and stock register upto 31.03.2007 reflecting stock as nil are found to be correct as per the testimony of PW and admittedly FPS in question has not been supplied SFA for the month of April, 2007 till the inspection of the premises which gives an inference that seized rice was not the one which was supplied by the concerned department.
35. Furthermore, admittedly there is no complaint received against accused persons from any of the card holder so as to reflect that they have been cheated by the accused persons. PW-2 categorically admitted in his cross examination that no ration card holder made any complaint against the accused persons from January, 2007 till the date of inspection. PW-1 also admitted that none of the card holders had lodge any complaint with them in respect to the supply of FPS material, thereby giving an inference that admittedly no card holder has lodged any complaint against accused persons regarding the supply of FPS material.
FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 15 of 19
36. As per the testimony of PWs they reached at the spot at about 12:30- 1:00 pm i.e. a day time, however, no efforts seems to have been made to join the public persons to the investigation.
37. The non-joining of public witnesses is fatal to the prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
38. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 16 of 19 2417, it has been held as under :-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 17 of 19 a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused. In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 18 of 19 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
39. Other witnesses are formal in nature who cannot prove the guilt of the accused beyond reasonable doubt.
40. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, no discrepancy being found in the records/account maintained by the accused, absence of sample of the case property, no complaint lodged by the ration card holders against that accused, non examination of public witnesses, prosecution has failed to establish its case against the accused persons Satish Kumar and Vijaya Kumari, beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and accused persons Satish Kumar and Vijaya Kumari stands acquitted of the offences under Section 7 of Essential Commodities Act accordingly.
41. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
42. File be consigned to the record room after due compliance.
Digitally
signed by
SHILPI JAIN
Pronounced and Signed
SHILPI Date:
in the Open Court on 05.02.2020 JAIN 2020.02.05
(Shilpi Jain) 17:13:40
MM-02(Central)/THC/Delhi
+0530
05.02.2020
FIR No. 233/07 PS Timarpur State Vs. Satish Kumar & Anr. Page No. 19 of 19