Pradeep Kumar @ Pappu & Anr v. State of Delhi

ORDER %

24.10.2011 Crl. M.A. No. 12648/2011 & 12649/2011(Exemption) Allowed, subject to all just exceptions. Crl. M. C. No. 3554/2011 & Crl. M.A. No. 12649/2011

(Stay)

¶1By this petitionthe Petitionersseeks quashingof the order dated 21^' July, 2011 passed by the learned ACMM-I Rohini, Delhi framing notice under Section 251 Cr. P.C. upon the Petitioners for offences punishable under Sections 272/273/482/34 IPC in case FIR No. 391/1999 registered at PS Keshav Puram, Delhi.

¶2Learned counsel for the Petitioner contends that the FIR was registered malafidely as earlier a case was registered against the Petitioners in which they were acquitted. The learned trial court directed registration of Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. V FIR againstthe policeofficer. The presentFIR was registeredto pressurize the Petitioners to settle the matter. Further the FIR was ante timed. There is noallegationagainstthePetitionersexceptthattheywere presentatthespot. Moreover, Arun Kumar and Naveen Kumar have filed applicationsbefore the learned trial court and claimed that the goods belonged to them.

¶3Briefly the prosecution case is that on 18'^ December, 1999 the Pradhan of Jhuggis in the Industrial Area, Lawrence Road informedthat work of making adulteratedoil was going on at Plot No. G-15, Industrial Area. On this SI Sultan Singh organized a raiding party with Constable Balbir as a decoy customer. On reaching the factory premises, Constable Balbir purchasedtwelve bottles of oil which resembledlike mustardoil and on which the label of Krishna Oil Mill, Panipat, Haryana was found. On Constable Balbir giving a signal a raid was conducted and from the premises three sealed bottles of oil were taken out from the petti and after de-sealing them three samples were filled in different plastic bottles. Further yellow colour fragrant chemical used in palm oil was found in an aluminum pateela. One truck bearing No. MP 09 K 6666 was found outside the factory wherein from a tap tins were being filled and sealed by persons. Samples thereof were also taken and it was found that three partners, that is, the Petitioners and SureshChandwere presentin the factoryhowever,the fourthpartnerJai Kishan was not found and it was stated that he has gone out.

¶4Pursuantto investigationin the abovementionedFIR being registered a charge sheet was filed. Initially the Petitionerswere dischargedby the learned ACMM against which order a revision petition was filed by the State. In the revision petition,the learned Additional Sessions Judge set aside the order of the learned ACMM and directed framing of charges againstthe accused persons as per its order. The Petitioners filed a revision petition before this Court challengingthe said order dated 23"^ October, 2010 passed by the learned Additional Sessions Judge directing framing of charges. The said revision petition was withdrawn by the Petitioners with liberty to urge the grounds available to them in accordance with law before the learned Trial Court. However, the Petitioners have again come up in the present petition challenging the order of framing of notice. It may be noted that the order of the learnedAdditionalSessionsJudge dated 28"^ October, 2010 was a well considered and reasoned order wherein it was held that.the Petitioners were not being prosecuted for offences punishable under the special enactment but for offences punishable under IPC which the police officers were competent to investigate and file a charge sheet thereon. 3^

¶5It is well-settled that even where an act is punishable under a special statue as well as under a general law the offender could be prosecuted under either or both, but could not be punished twice for the same act or omission constituting as offence, in view of Section 26 of the General Clauses Act, 1897, which reads: - "Provision as to offences punishable under two or more enactments. - where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.

¶6Hon'ble Supreme Court in the State of Bombay v^. S.L. Apte, AIR 1961 SC 578 held that though Section 26 of the General Clauses Act in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. If the offences are not the same but are distinct or made up of different ingredients the ban imposed cannot be invoked. Thus, it is clear that to operate as a bar the second prosecution and the consequential punishment thereunder must be for the same offence that is an offence whose ingredients are the same. CRL.M.C.3554/2011 Page 4of5 H

¶7In my opinion the earher petition having been withdrawn by the Petitioners with liberty to raise the issues raised during trial before the learned Trial Court the present petition seeking quashing of the framing of notice deserves to be dismissed.

¶8Petition and application are dismissed.

MUKTA GUPTA, J. OCTOBER 24, 2011 'vn'

79#$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + PRADEEPKUMAR@ PAPPU& ANR Petitioners Through: Mr. Shivam Sharma and Mr. Raj Kishore Choudhary, Advocates. versus STATE OF DELffl Respondent Through: Mr. Manoj Ohri, APP for the State. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA