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Delhi District Court

The State vs Kailash Chand on 6 August, 2012

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  IN THE COURT OF SHRI SANJEEV KUMAR, ASJ , OUTER DISTRICT, 
                        ROHINI, DELHI
                                                 CR No.10/12
                                                FIR No.351/05

The State,
Through P.P. Delhi.                                                                                                                      ...  Revisionist

                                Versus
  1. Kailash Chand, S/o Lt.Shanti Prasad Bansal,
     R/o 10/61, Punjabi Bagh, Delhi.
  2. Joginder Singh, S/o Kashmir Singh,
     R/o VP­92C, Pitampura, Delhi.
  3. Madan Pal, S/o Lt. Girdhari Lal,
     R/o Vill. Rathpat, Distt. Hamirpur, (UP).
  4. Shyam Sunder Bansal,S/o Lt. Hari Ram,
     R/o H.No.3231, Ranjeet Nagar, Delhi.
  5. Sunder Singh, S/o Deep Chand,
     R/o C­64, Shiv Ram Park, Nangloi, Delhi.
  6. Jagmohan Bansal, S/o Lt. Shanti Prasad Bansal,
     R/o B­5/93, Paschim Vihar, Delhi.
  7. Sanjay Maheshwari, S/o N.K. Maheshwari,
     R/o VB­8/6443, Gali No.2, Dev Nagar, Karol Bagh, Delhi.
  8. Pramod Mittal, S/o Late Suraj Bhan Mittal,
     R/o H­249, Shakur Pur, JJ Colony, Delhi ... Respondents
                                           Date of Institution: 28.2.2012
                                           Date of Judgment: 06.8.2012
JUDGMENT

1. Present petition has been filed by the State through State V Kailash Chand Bansal & Ors.

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Ld.Add.PP against the order of discharge of respondents passed by Ld. ACMM vide order dated 25.1.2012 in case FIR no.351/12 PS Mangolpuri.

2. Brief facts of the case are that on 26.5.2005 one G.D. Goel had informed AATS Crime Branch that a gang consisting of respondents has engaged in selling spurious LDO by mixing kerosene oil and rubber processing oil in it. On this information crime branch conducted a raid and reached at the office of respondents in C­4, Shivji Park, Punjabi Bagh, Delhi. On the way a decoy customer made offer to purchase 500 lts. LDO and the respondent Kailash Bansal quoted the price of LDO Rs.17 per ltr. Respondent Shyam Sunder told that quality of LDO can be checked in their godown and supervisor Madan Pal will help in the same. The godown is situated at plot no.1, Mangolpuri Industrial Area, Phase­I, Mangolpuri, Delhi. After reaching the godown SI Bhagwati Prasad met a person who disclosed his name as Madan Pal who told that from the office of Kailash Bansal, Jagmohan Bansal had already informed him about the delivery of LDO. He further stated that they manufacture good quality of LDO in the godown by mixing rubber processing oil and kerosene oil. Thereafter SI Bhagwati Prasad State V Kailash Chand Bansal & Ors.

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came out of the premises and signaled the team and premises was raided. They sealed number of articles including one tanker having 12000 ltrs. of chemicals (LDO), one tanker of 12000 ltrs. of diesel and one tanker of 4500 ltrs. of kerosene oil. Samples were taken from the said tankers and iron tanks. The driver of the tank Joginder Singh Sindhu, Sunder Singh and Shiv were also apprehended and confessed that they had brought the diesel and kerosene oil for illegally for selling the same to the respondents. Thereafter the case was registered on the basis of rukka prepared by SI Bhagwati Prasad and raid was conducted at Punjabi Bagh office of the respondents where many articles including cash of Rs.17,80,320/­ were seized. After completion of investigation, challan was filed before ACMM and respondents were put to trial. Ld. ACMM vide order dated 25.1.2012 discharged all the accused/respondents, against the said order, present revision has been filed by the State.

3. Ld. APP for the State has contented that huge quantity of spurious LDO by mixing with PDS kerosene oil was seized from the godown of the respondents on the raid conducted by the AATS Crime Branch beside one tanker having loaded with 12000 lts. of chemical (LDO), one tanker loaded with 12000 ltr.of diesel. State V Kailash Chand Bansal & Ors.

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Ld. APP further contended that as per the report of FSL, Director of Forensic Science, Govt. of Gujrat, Sector­18A, Gandhi Nagar the sample of diesel was containing PDS, kerosene oil hence it is proved that respondents were involved in mixing the kerosene oil in the diesel and thus prima facie there was enough evidence that respondents have violated the provisions of Essential Commodities Act, Petroleum Act which is punishable u/s 7 of Essential Commodities Act and Section 23 of Petroleum Act and committed offence of cheating and further since tank of kerosene oil instead of going through their required destination were found in the godown of respondents, therefore they were found in possession of stolen articles. Hence offence of u/s 407/411/414 IPC are also made out against them.

4. On the other hand, Ld. Counsel for respondents has contended that on 26.5.05 when raid was conducted, the samples were taken but seal was handed over to SI Praveen Kumar member of raiding party instead of handing over the same to independent witness. Further samples lifted on that day were not sent for testing till 7.6.05. Second samples were lifted but said samples were sent for testing after 30 days and during the period of 30 days samples State V Kailash Chand Bansal & Ors.

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and seal remained in the custody of police, hence there is possibility of tempering with the sample during that period. The other argument that police again sent the sample to Gandhi Nagar, Gujrat after two years of the incident.

But according to Central Govt. Notification dated 28.12.1998 which is called as Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 issued u/s 3 of Essential Commodity Act, the samples should have been sent within 10 days to Govt. Laboratory whereas in this case there is inordinate delay of 23½ months.

5. It is further contended by the Ld. Counsel for respondents that as per Section 4 of the order Motor Spirit and High Speed Diesel, (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 the power of search and seizure can be done by police official not below the rank of Deputy Superintendent of Police which in case of Delhi is ACP whereas in the present case search and seizure was conducted by Sub­Inspector. Hence search and seizure is illegal and in violation of law. It is further contended by the Ld. Counsel for respondents that as per the notification dated State V Kailash Chand Bansal & Ors.

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7.5.99 issued by Delhi Govt. in pursuance of the notification of the Govt. bearing no.GSR 772(E) dated 28.12.98 Delhi Govt. conferred the power of search and seizure on all gazetted officers of Food & Supplies and Weights & Measurements deptt. of Delhi Govt. and to call SDM. Therefore the raid conducted by the police was illegal. Hence Ld. Counsel for the respondents contended that prima facie raid was illegal, hence any action subsequent to the said raid is illegal, therefore Ld. MM has rightly discharged all the respondents.

6. I have head the submissions of both the parties and gone through the record. As per the charge sheet, the respondents have charged u/s 285/407/411/414/120B/34 IPC and u/s 7 Essential Commodities Act and u/s 23 Petroleum Act.

7. As per Section 3 of the Petroleum Act, no one shall import, export, transport or store any petroleum product except the conditions of any licence for the purpose which he may be required to obtain by rules u/s 4 of the Act. Section 4 of the Petroleum Act provides that "Central Govt. may make rules for import, export , transport and storage of petroleum products. Section 5 provides that no one shall produce, refine or blend petroleum in accordance with the rules made by Central Govt. Section 23 provides punishment for State V Kailash Chand Bansal & Ors.

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the violation of Section 4 and 5 of the Act.

8. Section 7 of the Essential Commodities Act, 1955 provides that any person who contravene any order u/s 3 is liable for punishment. Section 3 of the Essential Commodities Act empower Central Govt. or State Govt. to issue rules and regulation for regulation of trade, transport, manufacture of Essential Commodities. Both Petroleum Act, 1963 and Essential Commodities Act, 1955 are special Acts. Whenever any rule is made in the said special law which provides some procedures then those procedures are mandatory and required to be followed strictly as held by Hon'ble Justice V.K. Jain in case Yogesh Singh & Ors. V State & Ors. 168 (2010) Delhi Law times 370. In this case Hon'ble Justice held in para 40 that since the safeguard provided and right conferred upon the accused under PFA Acts and rules made thereunder are necessary available to a person who is prosecuted u/s 7 of Essential Commodities Act for protection, distribution or supply of an adulterated of essential commodity, and there was contravention of rule 14 of PFA Rules which is mandatory in nature by not sending the specimen seal impression to the Public Analyst, in a seat cover for its comparison with the seal impression put on sample, the State V Kailash Chand Bansal & Ors.

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prosecution of the petitioner cannot be allowed to continue. Thus he quashed the criminal complaint.

9. Further as per notification No.F12 (10) / 2000 / F&S / Policy /585 dated 28.10.2002 issued by Delhi Govt. u/s 3 of the Essential Commodities Act, 1955 which is called as Delhi Solvent, Raffinate and Slop (Acquisition, Sale, Storage and Prevention of Use in Automobiles) Order, 2002, with regard to the petroleum products, the power of search and seizure has been given to the officers not below the rank of Sub­Divisional Magistrate under the control of Deputy Commissioner and officers of Food and Supplies deptt., Inspector Grade­II whereas in this case raid has been conducted by the police official of rank of Sub­Inspector. Hence, in my view all the proceedings of search and seizure made in this case is vitiated. In this regard, I rely on State of Karnataka V Nageshwar Rao, ILR 1986 4171 also held that since in clause 3 of Karnataka Pulses Dealer Licensing Order issued u/s 3 of the Essential Commodities Act which authorized certain authorities to make such search for securing compliance of the order. But search was done by police officials who were not authorized to conduct such and thus Hon'ble High Court has upheld the order of acquittal.

State V Kailash Chand Bansal & Ors.

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10. Further, I am agree with the findings of Ld. ACMM that there is inordinate delay in sending the sample to the Govt. Laboratory which itself vitiate entire proceedings. In such circumstances, In my view prima facie charge u/s 7 and 23 of the Essential Commodities Act, cannot be framed against the respondents as it will lead to acquittal in all probabilities.

11. As far as offence u/s 411, 414 and 407 IPC is concerned, since no person has made any complaint regarding theft of article or misappropriation of articles, therefore, in my view the offence u/s 411/414/407 IPC is also not made out against the respondents.

12. In the facts and circumstances, I do not find any error in the order passed by the Ld. Trial court, therefore, there is no merit in the revision petition. Hence the same is dismissed. A copy of this order along with TCR be sent back to the trial court for information. Revision file be consigned to the record room.

Announced in open court                                                                                              (Sanjeev Kumar)
Dated 6.8.2012                                                                                               ASJ­01, Outer, Rohini, Delhi




State V Kailash Chand Bansal & Ors.
CR No.10/12                                                                                                                                                        Page No. 9  of  9 
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                                                                                                                                CR No.10/12
                                                                                                               State V Kailash Chand & ors.



6.8.2012.

Present : Shri S.C. Sroai, Ld. APP for the revisionist.

Respondents in person.

Vide separate order, revision is dismissed. A copy of the order along with TCR be sent to the trial court for information. Revision file be consigned to the record room.

(Sanjeev Kumar) ASJ­01, Outer, Rohini, Delhi State V Kailash Chand Bansal & Ors.