Kamla Kant ? Kamal Kant and Ors. Vs. State of Jharkhand - Court Judgment

CRIMINAL MISCELLANEOUS PETITION NO. 1555 OF2003(In the matter of an application under Section 482 of the Code of Criminal Procedure 1973). ----- 1. Kamla Kant @ Kamal Kant.

2. Akhilesh Kumar Jha 3. Baidyanath Jha ..... … Petitioners. Versus The State of Jharkhand .…. … Opposite party ------- For the Petitioners : M/s R.S. Mazumdar, Sr. Advocate & Sanjeev Kumar Singh, Advocate For the State : Mr. Nehru Mahto, A.P.P. ------ PRESENT : HON’BLE MR. JUSTICE H. C. MISHRA ----- BY COURT:- Heard learned counsel for the petitioners and the learned counsel for the State.

2. The petitioners are the owners of a petrol pump in Bokaro, and they have challanged the order dated 13.11.2003 passed by the learned Chief Judicial Magistrate, Bokaro, in Sector-IV P.S. Case No. 85 of 2001, whereby cognizance has been taken against the petitioners for the offence under Sections 265 and 420 of the Indian Penal Code and Sections 37 and 39(2) of the Standards of Weights and Measures (Enforcement) Act, 1985 (herein after referred to as the 'Act'). The petitioners have also prayed for quashing the entire criminal proceedings in the said case against them.

3. The facts of this case lie in short compass. The petrol pump of the petitioners was inspected on 12.12.2001 by the Inspector, Weights and Measures, Bokaro, in the presence of Executive Magistrate, and it was found that there was short supply of petrol and diesel in the outfits of the petrol pump and the seals of the outfits were also found broken and accordingly, the FIR was lodged against the petitioners, for the offence under Section 7 of the Essential Commodities Act. It appears that after investigation, however, no charge-sheet was submitted for the offence under Section 7 of the Essential Commodities Act, but the charge-sheet was submitted only for the offences under Sections 265 and 420 of -2- the Indian Penal Code and Sections 37 and 39(2) of the Standards of Weights and Measures (Enforcement) Act, 1985, on the basis of which, the cognizance has also been taken for the said offences against the petitioners, by the impugned order dated 13.11.2003.

4. Learned counsel for the petitioners has submitted that the petitioners have been falsely implicated in this case and the police case, as has been instituted against the petitioners, cannot be allowed to be continued. Learned counsel has taken a short point in support of his contention, drawing the attention of this Court towards Section 63 of the Standards of Weights and Measures (Enforcement) Act, 1985, submitting that there is a complete prohibition for taking cognizance under the said Act, except on the basis of a complaint in writing made by the persons authorized under this Section. Learned counsel has also drawn the attention of this Court towards Section 66 of the said Act, to show that the provisions of the Indian Penal Code, in so far as the provisions relate to the offences with regard to weights and measures, shall not apply to any offence which is punishable under this Act. It is further submitted that Section 265 of the Indian Penal Code clearly relates to the offence for the weights and measure and accordingly, the same shall not be applicable in the case of these petitioners. As regards Section 420 of the Indian Penal code, learned counsel for the petitioners has submitted that only other allegation against the petitioners is that of tampering with the seal of the outfits, which is clearly covered by Section 37 of the Standards of Weights and Measures (Enforcement) Act, and this being an offence under the special Act, no cognizance could be taken against the petitioners under the general provisions of the Indian Penal Code. Learned counsel has accordingly, submitted that the criminal proceeding against the petitioners in the present form is not at all maintainable and it is fit to be quashed. -3- 5. Learned counsel for the State on the other hand has opposed the prayer submitting that on the basis of the allegations against the petitioners, the offence is clearly made out against the petitioners and accordingly, there is no illegality in the impugned order.

6. Section 63 of the Standards of Weights and Measures (Enforcement) Act, 1985 reads as follows:-

"3. Cognizance of Offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) no court shall take cognizance of an offence punishable under this Act except upon a complaint, in writing, made by- (i) the Controller; (ii) any other officer authorized in this behalf by the Controller by general or special order; (iii) any person aggrieved; or (iv) a recognized consumer association whether the person aggrieved is a member of such association or not Explanation.- For the purposes of this clause ‘recognised consumer association’ means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force: (b) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act." Similarly, Section 66 of the aforesaid Act reads as follows:-

"6. Provisions of Indian Penal Code not to apply to any offence under this Act.- The provisions of the Indian Penal Code (45 of 1860), in so far as such provisions relate to offences with regard to weights or measures, shall not apply to any offence which is punishable under this Act." 7. From a conjoint reading of both these provisions, it is apparent that the provisions of the Indian Penal Code, so far as it relates to weights and measures shall not be applicable in this case and the cognizance for any offence under the said Act can be taken only on the basis of the written complaint made by the competent persons enumerated under the Act. -4- 8. In the present case, the allegations against the petitioners are of short supply of petrol and diesel in their outfits and also of tampering with the seals of the outfits of the petrol pump. Both these offences are squarely covered by Section 37 and 39(2) of the Act and in that view of the matter, I am of the considered view that the bar under Sections 63 and 66 of the Act shall apply to the present case also. In the present case, the cognizance has been taken clearly on the basis of the police report, which is prohibited by Section 63 of the Standards of Act, and the offences being clearly made out against the petitioners under Sections 37 and 39(2) of the Act, the provisions of Section 265 of the Indian Penal Code shall also not apply to the petitioners. Even Section 420 of the Indian Penal Code shall not apply to the petitioners, as only other allegation against the petitioners is that of tampering with the seal of the outfits, which is clearly covered by Section 37 of the Act. As such, I am of the considered view that Court below could not have taken cognizance of the offence against the petitioners on the basis of the police report, and the criminal proceedings against the petitioners in the present form cannot be allowed to continue.

9. In view of the aforementioned discussions, the impugned order dated 13.11.2003, passed by the learned Chief Judicial Magistrate, Bokaro, in Sector-IV P.S. Case No. 85 of 2001 corresponding to G.R. No. 1185 of 2001, as also the entire criminal proceeding against the petitioners in the said case, are hereby, quashed.

10. This Criminal Miscellaneous Petition is accordingly, allowed. ( H. C. Mishra, J.) Jharkhand High Court, Ranchi Dated the 31st of July, 2015. N.A.F.R./ Amitesh/-