Tamilnadu. vs Mr. Vijay Kumar Sinha, Advocate

Mr. Mrigank Mauli, learned counsel for the petitioners had submitted that there is absolute want of any material to show that the petitioners had violated the provision of Section 28 of the Act, inasmuch as, the satisfaction of the Inspector in this regard is totally missing either in the notice issued by 5 him or even in the prosecution report filed by him. Referring to Section 48 of the Act, learned counsel also submits that as there is no material to show that the petitioners had failed in complying with the direction in the notice under Section 28 of the Act without reasonable cause and has also explained that the notice dated 13.2.1996 had in fact been replied by the petitioners as would be also evident from the copy of acknowledgment due receipt whereof has also not been denied in the counter affidavit of opposite party no. 2. He has concluded his submissions by taking a stand that in any event, when the period of registration under the Act for the petitioners had already come to an end on 30.6.1996 and that they did not even require renewal of such registration on account of closure of their business, they could not be held liable for return of the registration certificate as that was not a condition precedent either in the order of registration or the requirement of law in terms of Section 28 of the Act. Counsel for the opposite party no.2, the Inspector, Weights & Measure, has however taken a stand that M/s Parag Chromates Pvt. Ltd. was 6 a registered unit under the Weights & Measure Act since long and had got its weight and measure scale and instruments verified and stamped till 25.4.1995 vide verification certificate no. 015420 and the validity period was up to April quarter of 1996 which had been mentioned verification certificate itself. He has laid stress on the fact that under the provision of Weights & Measure Rules, 1988, the petitioners were required to get its weights and measures verified and stamped before the end of quarter of April, 1996 i.e. up to 30.6.1996 but when they did not do so, a final notice was served on them vide letter no. 80 dated 13.7.1996 directing them to produce their weights and measure scale on 20.7.1996 but the petitioners failed to turn up and as such, the prosecution report was submitted to the higher authority, namely, Joint Controller, Legal Metrology, Patna Division, Patna on 31.7.1996 and after his such approval was accorded by his letter dated 29.10.1996, the complaint in the form of prosecution report was filed on 30.10.1996. Counsel for the opposite party no.2, in fact, has also taken a plea that the letter of 7 the petitioners dated 26.7.1996 was received in the office of the opposite party no.2 but only after submission of the prosecution report and as such, the knowledge about the closure of the firm was acquired at a stage when he (opposite party no.2) had already made his recommendation launching prosecution against petitioners. A further plea has been taken by the learned counsel for the opposite party no.2 that in terms of the rules framed under the Act, namely, Bihar Standard of Weights & Measure (Enforcement) Rules, 1988, in case of discontinuance of the use of weights and measure, the certificate of registration has to be surrendered by the trader and if not surrender in time, that itself would amount to violation of the provision of the Act. Counsel in this regard also refers on the provision of Section 60 of the Act as with regard to presumption against the petitioners. Having given anxious consideration to the aforementioned submissions, this Court is of the opinion that the prosecution of the petitioners under Section 28 of the Act is wholly unsustainable for the simple reason that Section 28 presupposes recording 8 satisfaction by the Inspector that he had reasonable cause to believe that an offence punishable under the Act has either been already committed or is likely to be committed in respect of any weight or measure. As a matter of fact, the direction to produce the weights or measure or record for inspection by any one registered under the Act is only envisaged if the desired satisfaction is recorded in the notice itself. That seems to be the spirit of Section 28 of the Act which reads as follows:- “28. Power production of weight or measure or records Inspector require for inspection. – (1) An Inspector may, if he has any reasonable cause to believe that an offence punishable under this Act has been, or is likely to be, committed in respect of any weight or measure or that any weight or measure does not conform to the standards established by or under the Standards Act, require, at all reasonable times, the person having the custody or control of such weight or measure to produce before him for inspection every such weight or measure which – (i) is used by such person or is caused by such person to be used by any other person, or (ii) is in the possession, custody or control of such person for use, or 9 (iii) is kept in or on any premises for use, in any transaction or for industrial production or for protection. (2) The Inspector may also require the production of every document or other record relating to the weight or measure referred to in sub-section (1) and the person having the custody of such weight or measure shall comply with such requisition. (3) On inspection, whether under Section 27 or under this section, the Inspector shall obliterate the stamp on- (a) any weight or measure which, being due for verification, has not been submitted for such verification; (b) any weight or measure which, since the last verification and stamping, has been repaired or re-adjusted, and does not, after such repair or re-adjustment, conform standards established by or under the Standards Act; (c) any weight or measure which does not admit or proper adjustment by reason of its being broken, indented or otherwise defective; (d) any weight or measure other than those specified in clause (b) or clause (c) which does not, or cannot be made to, conform to the standards established by or under the Standards Act: Provided that where the Inspector is of opinion that the defect or error in such weight or measure is not such as to require 10 immediate obliteration of the stamp, he shall serve a notice on the user of such weight or measure informing him of the defect or error found in the weight or measure and calling upon him to remove the defect or error within such time, not exceeding eight days, as he may specify, and shall- (i) if the user fails to remove the defect or error within that period, obliterate the stamp, or (ii) if the defect or error is so removed as to make the weight or measure conform to the standards established by or under the Standards Act, verify weight or measure and put his stamp thereon.” In the backdrop of the aforementioned statutory provision, if the contents of the notice dated 13.7.1996 is perused, the same by itself would go to show that not only it was issued in a printed proforma but did not record a word showing the satisfaction as required under Section 28 of the Act. The notice dated

13.7.1996 reads as follows:- ^^es- ijkx dzksesVl izk0 fy0 izcU/k funs”kd ¼1½ Jh ,p0 tkyku oYn Jh ds0ih0 tkyku funs’kd & Jh ds0ih0 tkyku bUMjLV~h;y LVsV] iVuk egk”k;] lwfpr fd;k tkrk gS fd vki vius okV] eki ,oa rkSyu 11 vkSj ekiu midj.kksa ds fujh{k.k ,oa tkWp ds fy, esjs dk;kZy; dqthZckyqij iVuk&10 fnukad 20@7@96 dks fnu ds 11 cts mifLFkr djsaA vuqifLFkr gksus ij vkids fo:) fcgkj ekud okV eki …izorZu‰ vf/kfu;e 1985 ds v/khu dkuwuh dkjZokbZ dh tk;xhA fujh{kd] eki rkSy dk gLrk{kj ,oa ewgj g0@& 12@7@96** It has to be noticed that the violation of this notice dated 19.7.1996 by the petitioners is said to be the only reason for launching prosecution against the petitioners as would be evident from reading of the prosecution report (complaint) (Annexure-7) where again in the printed format. Column no.6 containing the details of offence reads as follows:- 6- vijk/k dk C;ksjk %& bUgsa bl dk;kZy; ds i=kad 81 fnukad 13@7@96 }kjk lwfpr fd;k x;k fd fnukad 20@7@96 dks fnu esa 11 cts dk;kZy; esa ekirkSy midj.kksa dks izLrqr dj tkWp ,oa fujh{k.k] lR;kiu djk ysa ftldk vuqikyu ugha fd;k x;kA** In the opinion of this Court, on the basis of materials available on record itself, it is more than clear that there was no ingredient for making out an offence under Section 28 of the Act specially when it is found that the period of registration of the petitioners had expired on 30.6.1996 and the petitioners were neither found to be using the weight and measure even without its re-verification or for any other business transaction. 12 That apart, launching prosecution in this case seems to be either by way of vengeance or by way of mechanical application of mind or both, inasmuch as, if the Inspector, Weight and Measure had come to know even on 9.8.1996 that the business of the petitioners and their company, have been suspended/stopped even if he had already submitted the recommendation for sanction of prosecution against the petitioners to the Joint Director of Weight and Measure, he could have very well recalled the same by informing the authority as with regard to the changed scenario. In any event, the reply given by the petitioners on 26.7.1996 to the following effect; “26.07.96 To the Inspector Weights and Measurements. Patna – 10 Dear Sir, Ref. : Yours letter No. 81 dt. 13.07.96 Please refer yours above mentioned letter received by us of date. We would like to inform you that due to various reasons and financial problem the said unit has temporarily closed operation

19.12.95. Therefore we shall submit our weights and other tools as your requirement as soon as the unit will restart its operation. This is for your kind information and record. 13 Thanking You. Yours faithfully For Parag Chromates (P) Ltd. Sd/- (General Manager)” and its admitted receipt by the opposite party no.2 on 9.8.1996 would leave nothing for speculation that the petitioners had already complied the requirement of the notice by informing that they had not been using the weight and measure on account of closure of their business. In any event the notice issued by the Joint Director of Weight and Measure on

16.8.1996 to the petitioners for compounding of the offence and the reply given by the petitioners on 27.9.1996 was good enough to leave the matter at rest specially when the petitioners had also intimated the authority as with regard to the surrendering of their original certificate of registration in the light of the developments which had taken place between the representative of the petitioners and the office of Joint Director, Weight and Measure. A mere submission of proposal by the Inspector, Weight and Measure on 13.7.1996 to the Joint Director of Weight and Measure or the consequential decision taken by the Joint 14 Director of Weight and Measure in his order dated 16.8.1996 in the opinion of this Court were not such steps which could not have been retraced and in that view of this matter launching of the prosecution despite receipt of the petitioners’ reply on 27.9.1996 would only go to show that the manner in which the opposite party no.2 had unnecessarily involved himself and the Government machinery, in launching meaningless worthless prosecution. This Court has also taken into account the submission of the learned counsel for the opposite party no.2 as with regard to the presumption under Section 60 of the Act and would find no applicability of the same in the present case, inasmuch as, Section 60 reads as follows:- “60. Presumption to be made in certain cases.-(1) If any person- (a) makes or manufactures, or causes to be made or manufactured, any false weight or measure, or (b) uses, or causes to be used, any false or unverified weight or measure in transaction industrial production or for protection, or (c) sells, distributes, delivers or otherwise transfers, or causes to be sold, distributed or otherwise transferred, any 15 false or unverified weight or measure, it shall be presumed, until the contrary is proved, that he had done so with the knowledge that the weight or measure was a false or unverified weight or measure, as the case may be. (2) If any person has in his possession, custody or control any false or unverified weight or measure in such circumstances as to indicate that such weight or measure is likely to be used in transaction industrial production or for protection, it shall be presumed, until the contrary is proved, that such false or unverified weight or measure was possessed, held or controlled by such person with the intention of using the same in any transaction or for industrial production or for protection.” In the present case, it is not the allegation in the complaint filed by the opposite party no.2 that the petitioners were making or manufacturing any false or weight or measure or was using any false or unverified weight or measure in business transaction or for industrial production or for protection or was selling, distributing, delivering or otherwise transferring any false or unverified weight or measure. It is also not the case of the opposite party no.2 that the petitioners were in possession, custody or control of any 16 false or unverified weight or measure and therefore surrounding circumstances for such weights or measure was likely to be used in any transaction. In fact, on the basis of Section 60 of the Act, it cannot be said that a person registered under the Act in case of expiry of the certificate of weights and measure would become liable to prosecution if he does not return his certificate of registration and/or weight or measure. Such prosecution can be launched against him only when he is actually found to be committing an offence in terms of the Act or even making an attempt thereof. Neither of these two acts have been however alleged in the notice whose violation has caused the initiation of proceeding against the petitioners under Section 28 of the Act. This Court, in fact, has also gone into the aspect as with regard to the liability of a person already registered under the Act, as was the case of the petitioners, for finding out the liability of such person who would fail to get the weight and measure re-verified on periodical interval as may be prescribed. Section 24 of the Act in this respect squarely provides that every person, who would either 17 use any weight or measure in any transaction or for industrial production or protection before using such weight or measure, would get them verified on payment of such fees as may be prescribed and every weight or measure once verified would be also required to be re- verified on such periodical intervals as may be prescribed. The touch stone, however, of Section 24 of the Act again is the use of weights and measure and therefore, even if a registered person under the Act ceases to carry on business operation, he would not be liable to get the weights and measure re-verified and therefore, even if he would not produce the weights and measure for re-verification or comply an order of the Inspector to this effect, by taking a plea of closure of his business, he cannot be subjected to prosecution for violation of Section 22 of the Act. That also seems to be the spirit of Rule 14 & 15 of the Rules where again user of the weights and measure or its being intended to be used in any transaction on annual basis seems to be the requirement of law. Judged from this angle, the prosecution petitioners permissible even under Rule 24 of the Rule 18 where any contravention of any provision of the rules for which no punishment has been separately provided in the Act has been prescribed to be a fine which may extend to Rupees one thousand. This Court, therefore, after examining the issues from each and every possible angle is satisfied prosecution petitioners amidst the facts and circumstances based only on non-compliance of the order of the Inspector, Weights and Measure in his notice dated 13.7.1996 is a gross abuse of the process of the Court and must be and so is hereby quashed. Before parting with, this Court would also like to record that the court of Judicial Magistrate, Patna in this case has acted like a post office in passing the impugned order taking cognizance, inasmuch as, it appears that a printed form was also used by him wherein only case number, the designation of the complainant and the name of the accused and the provision of law was filled up and even the offence for which the cognizance was taken was recorded as “Cog”. The said order taking cognizance, therefore, by itself would reflect 19 the complete non-application of mind by the concerned Chief Judicial Magistrate, Patna who surprisingly on receipt of the prosecution report (complaint)

30.10.1996 mechanically acted like a post office in also signing of the printed proforma of order taking cognizance on the same day I.e. 30.10.1996. Thus a wholly perfunctory approach without recording a reflect application of his independent mind. It must be always remembered that summoning an accused is a serious matter and criminal law cannot be set on motion as a matter of course. The summoning order must reflect that the Magistrate has applied his mind to the facts of the case and law applicable thereto. Reference in this connection may be made to judgment of Apex Court in the case of Pepsi Food Ltd. Vs. Special Judicial Magistrate reported in AIR 1998 S.C. 128 adopted by the Chief Judicial Magistrate in passing the cryptic order in cyclostyled proforma cannot be approved. As a matter of fact, had the Chief Judicial Magistrate, Patna been careful in at least examining the prosecution report (complaint), he could have found that the Inspector, Weights 20 and Measure has put his signature on the complaint on 20.10.1996 and had relied on a sanction/authorization of prosecution dated

29.10.1996 which by itself could have gone to everything systematically arranged by the opposite party no.2 who had initially sent a report on 31.7.1996 when there was no violation in terms of Section 28 of the Act and insisted for continuance of such prosecution despite receipt of the reply of the petitioners showing closure/suspension of their business ultimately preparing prosecution report (complaint) on 20.10.1996 even when an authorization of the Joint Director was sent to him on 29.10.1996. The speed in which the Inspection had acted on receipt of the authorization by filing it on that very day on which he had received i.e.

30.10.1996 and the manner in which he could get also the cognizance taken on the same day by the Chief Judicial Magistrate, Patna i.e. on

30.10.1996 would speak a volume for themselves and at least leave nothing for speculation that it was in fact a malafide prosecution launched at the instance of Mr. Raj Kumar Prasad, Inspector, Weights and Measure, the opposite 21 party no.2. Thus, on overall consideration, this Court would find that the prosecution of the petitioners would be a gross abuse of the process of the Court and accordingly, the entire prosecution against the petitioners including the impugned order taking cognizance is hereby quashed. The application is accordingly allowed. Patna High Court Dated the 25th August 2009 Rishi/A.F.R. (Mihir Kumar Jha, J.)