1 IN THE COURT OF SHRI S. K. SARVARIA ADDITIONAL SESSIONS JUDGE, NEW DELHI [CASE NUMBER] [ENTITY] S/o Zile Singh R/o 89, Kamruddin Nagar, Nangloi New Delhi Petitioner Vs. [ENTITY] Respondent Date of Institution 01/12/07 Date when arguments were heard 20/07/2009, 27/8/2009 & 10/09/2009 Date of Order 17/09/09 ORDER
The present revision petition has been filed under [SECTION] CrPC, whereby the revisionist seeks setting aside of the order on charge dated 17/11/2007 passed by Ld. Metropolitan Magistrate wherein charge was framed against the present revisionist for the offence punishable under [SECTION] of [ACT].
The brief facts of the present case as per the prosecution version, relevant for consideration of rival contentions of the parties are as under:
On 29/9/2003 at about 10:10 pm near Moti Lal Nehru College, Gage Benito Juare Marg, New Delhi, accused [ENTITY] and accused [ENTITY] were found carrying 110 cartons containing 48 quarter bottles each of Bonnie Scot Special Malted Whiskey for sale in Rajasthan only in Canter bearing registration No. HR631054, without any permit or licence and in contravention of provisions of [ACT]. Both these accused persons were accordingly arrested. The present revisionist being the owner of the said Canter bearing registration No. HR631054, was also chargesheeted for getting designed a cabin in the said vehicle and delivering the same to the said two accused persons and thereby facilitating the commission of offence of bringing/carrying the liquor in contravention of the provisions of the [ACT]. The trial court summoned the present revisionist and copies of the chargesheet were supplied to him. After hearing the submissions made on behalf of the present revisionist, the trial court formed opinion on 10/10/07 for framing charges and framed charges against the present revisionist and coaccused persons for the offence punishable under [SECTION] of [ACT], vide order dated 17/11/2007. Aggrieved with the said order, present revision petition has been preferred by the revisionist.
The contentions of counsel for the revisionist is that the trial court framed charge against the present revisionist without considering that he is only the owner of the said Canter bearing registration No. HR631054. Neither the revisionist was present at the spot when the alleged illicit liquor was recovered by the police from the accused persons nor anything incriminating has been recovered from the revisionist or at his instance, nor there is any evidence to connect the revisionist that the coaccused persons were carrying the said illicit liquor, recovered from them, under the direction or supervision of the revisionist. The counsel submits that the revisionist got designed a cabin in the said Canter for his business and not for carrying the liquor in contravention of provisions of law. The learned counsel urges that the revisionist was unaware that the coaccused persons have been carrying liquor in the canter, which was handed over to the coaccused persons on faith being the driver of the revisionist. The learned counsel relied on the decisions in Krishnankutty vs. [ENTITY] of Kerela 2005 (3) KLT 568; [PRECEDENT] vs. [ENTITY] of Orissa & Anr. 2009 Cri. L. J. 1974 (Ori); [PRECEDENT], Intelligence Officer, Directorate of Revenue Intelligence, New Delhi 2005 (2) JCC 643 and Chander Bhan vs. [ENTITY] 1971 Cri. L. J. 167 (Del), in support of his contentions.
Refuting the said contentions of counsel for the revisionist, the Ld. Addl. Public Prosecutor, submits that the order passed by the Ld. Metropolitan Magistrate does not suffer from any infirmity and prima facie case is made out against the present revisionist. It is also his submission that the decisions cited by the counsel for the revisionist are not applicable to the facts of the present case. It is his contention that under [SECTION] of The [ACT], a vehicle containing liquour can be confiscated.
I have heard Ld. counsel for the parties at considerable length and perused the record and the judgments cited on behalf of the revisionist.
It is well settled that at the stage of framing charges, the Court cannot weigh the evidence presented on a fine balance. In fact, it is not required by law to furnish reasons. If the broad probabilities of the case point to grave suspicion of accused of having committed the offence, the Court can proceed to charge him. Of course, the degree of proof should be such that a grave suspicion should be made out. This does not mean that the Court should, at the stage of framing charge be satisfied that proof beyond reasonable doubt exists. The Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. (See: [ENTITY] of Orissa vs. Debendra Nath Padhi, 2005(1) SCC 568) The trial court has vide order dated 10/10/2007, after hearing the parties on point of framing of charge, observed that the specific allegation against the accused [ENTITY] is that the Canter which was used in carrying the case property has been specifically designed with the cabin for carrying illicit liquor. The said cabin has been allegedly got made by the revisionist herein for the purpose of transporting/carrying liquor. The trial court has in detail dealt with the decision in [PRECEDENT]'s case (supra), which is of no assistance to the revisionist.
It is not disputed that the revisionist is the owner of the aforesaid Canter. Further, on perusal of the seizure memo, charge sheet, order dated 10/10/2007 of the trial court and other documents on record, I feel that a prima facie case against the accused revisionist is made out and the trial court has rightly framed charges under [SECTION] of [ACT] against the present revisionist.
A cabin of the kind mentioned in the charge sheet can only be got made by the owner of the vehicle and not the driver or helper. Also, the expression 'possess' used in [SECTION] of the [ACT], refers to conscious possession, which can be actual or constructive. Merely because the revisionist was not in actual possession of the illicit liquor seized, it cannot be said that he was not in conscious possession of the said illicit liquor seized. Since, he was in constructive possession of the illicit liquor seized, the prima facie ingredients of the offence of which charges have been framed against him are made out.
Furthermore, [SECTION] of the [ACT] is worth noting here, which is reproduced as under:
77. Liability of employer for offence committed by employee or agent. The holder of a licence, permit or pass under this Act as well as the actual offender, shall be liable to punishment, for any offence punishable under [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION], committed by any person in his employ or acting on his behalf as if he had himself committed the same, unless he shall establish that all due and reasonable precautions were exercised by him to prevent the commission of such offence:
Provided that no person other than the actual offender shall be punished with imprisonment except in default of payment of fine.
From a bare perusal of the said section it is manifest that the employer is liable for the acts of his employee unless the employer establishes that all due and reasonable precautions were exercised by him to prevent the commission of such offence. Normally no person is held responsible for the wrongs done by someone else. However, there are few instances wherein a person can be held liable for the conduct of another person. This liability is known as Vicarious Liability. The liability of the master or the employer for the act of his servant or employee is based on the principle of 'respondeat superior', which means 'let the principal be liable'. This principle originates from the maxim ', Qui Facit per Alium Facit per se' which means 'he who does an act through another is deemed in law to do it himself'. However, such wrongful act should be within the course of his master's business and any act, which is not in the course of such business, will not make the master liable. Thus, the contention of the counsel for the revisionist that the revisionist cannot be held liable for the acts of the coaccused persons also falls down and does not find favour with me.
The judgments relied upon by the counsel for the revisionist are of no assistance to him as they deal with the issue of release of confiscated vehicle on supardari and in the instant case, the Canter was released on supardari to the revisionist and superdarinama dated 13/10/03 duly accepted by learned trial court is present on trial court record. I do not find any illegality in the order passed by the Ld. Trial court framing charges on the accused revisionist.
In view of the above discussion there is no illegality or material irregularity in the impugned order which may warrant interference in revision. The revision petition is, therefore, dismissed. The trial court record be returned along with the copy of this order. The order be sent to the server (www.delhidistrictcourts.nic.in). The revision file be consigned to the record room.
Announced in the open ([ENTITY] ) court on 17/09/09 Addl. Sessions Judge : 01 : South New Delhi [ENTITY] Vs. [ENTITY] CR No. 183/2009/2007 17/09/09 Present: Petitioner with Counsel. Addl. PP for the respondent [ENTITY].
The revision petition is disposed off vide separate order dictated and pronounced. File be consigned to Record Room.
( [ENTITY] ) ASJ01/South 17/09/09