Krishna Seed Pvt.Ltd. And 3 Others vs State Of U.P. And Another
2017 Latest Caselaw 730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
A.F.R
 
Order reserved on 1.5.2017
 
Order delivered on 16.5.2017
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 10546 of 2017
 

 
Applicant :- Krishna Seed Pvt.Ltd. And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Swapnil Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri Swapnil Kumar, learned counsel for applicants and Sri R.K. Maurya, the learned A.G.A.

This application u/s 482 CrPC has been preferred for quashing the proceedings of Complaint Case no.1588 of 2017 (State Vs. Anil Kumar Goyal and others), under Section 24/33 of The Legal Metrology Act, 2009, pending in the Court of Chief Judicial Magistrate, Court no.1, Agra.

Vide order dated 18.4.2017 this Court directed the learned A.G.A, to obtain instructions as it was made clear that on the next date, the matter shall be heard / finally disposed of. Pursuant thereto, O.P. no.2 was present in the Court along with relevant records on 27.4.2017. Learned A.G.A, submits that he does not propose to file any counter affidavit, matter be disposed of finally, on the basis of materials on record.

The applicant is a Private Limited Company, engaged in the business of the production/ sale of seeds, as well as in research and development thereof and has established a processing plant at Etmadpur, Agra.

On 29.6.2016, the Senior Inspector Weights and Measure, inspected the premises of the applicants, verified the electronic machines and the pouch filling machines available therein, but took into his custody a 20 litre contraption, prepared a seizure memo on the same date. The seizure memo is extracted hereunder: -

" mijksDr O;kolkf;d ifjlj ds fujh{k.k ds le; fuEu fLFkfr ik;h x;h&

¼1½ ekSds ij lR;kiu izek.k i= la0 430457 fnukad 23&02&2016 ds }kjk bysDVªkfud e'khus ,oa ikmp fQfyax e'khu lR;kfir ik;h x;hA

¼2½ ekSds ij ,d 20L {kerk dk ,Y;wehfu;e dsfedy /kkfjrk eki ij ^12?k* dh eqgj ik;h x;h] ftls ikVhZ dLVMh esa fn;k x;kA

¼3½ ekSds ij iSdsftax izek.k i= la0 [email protected] 25&7&2007 iznf'kZr fd;k x;kA "

Based on the seizure memo, applicants were put to a show cause notice dated 29.6.2016 alleging the presence of an unverified measuring scale (10 litre) which constitutes an offence under Sections 24/33 of The Legal Metrology Act, 2009 (in short the Act). The notice further indicated that the offence is compoundable, and in the event, no reply is received, a complaint would be filed. The notice dated 29.6.2016 is extracted hereunder: -

 
"   dk;kZy; ofj"B fujh{kd] fof/kd eki foKku] dkfyUnh fogkj] vkxjk
 
i=kad% 49        o0fu0fo0ek0fo0&izorZu       fnukad% 23&9&16
 
					uksfVl			LihM iksLV
 
					dsl ua0 40
 
eS0 d`".kk lhM~l izk0 fy0 ¼leLr [email protected]½
 
Jh vfuy dqekj xks;y iq= Lo Jh fxjh'k pUnz xks;y ¼MkjsDVj½
 
Jh lfyy dqekj xks;y iq= Lo Jh fxjh'k pUnz xks;y ¼MkjsDVj½
 
Jh lUnhi dqekj xks;y iq= Lo Jh fxjh'k pUnz xks;y ¼MkjsDVj½
 
iokjh jksM] fcgkjhiqj] ,Rekniqj] vkxjkA 
 

vkidks lwfpr fd;k tkrk gS fd ofj"B fujh{kd] fof/kd eki foKku ¼ckV rFkk eki½] dkfyUnh fogkj] vkxjk ,oa ofj"B fujh{kd] fof/kd eki foKku ¼ckV rFkk eki½] xksfoUn uxj] vkxjk us la;qDr :i ls fnukad [email protected]@16 dks vkidh QeZ dk vkSpd fujh{k.k fd;k fujh{k.k ds nkSjku ^^,d ,Y;wehfu;e eki {kerk 10 yh0 ij 2012 ^/k* dk eqgj dk ik;k x;k** ftlds QyLo:i vfHkxzg.k Kki la[;k 028352 fnukad [email protected]@16 ds }kjk pkyku fd;k x;k] tks fd fof/kd eki foKku fu;ekoyh 2011 dh /kkjk 24¼33½ dk mYya?ku gS tks fd fu;ekoyh ds vuqlkj n.Muh; gSA

mijksDr vf/kfu;e dh /kkjk ¼ ½ ds vUrxZr bl ekeys esa U;k;ky; esa eqdnek u pykdj fu;a=d }kjk foHkkxh; le>kSrk Hkh fd;k tk ldrk gSA

vr% vkidks uksfVl fn;k tkrk gS fd vki dkj.k crk;sa fd vki ij eqdnek D;ksa u pyk;k tk;sA ;fn izFke xyrh gkus ij vki mijksDr ekeys esa lek/kku pkgrs gS rks fof/kd eki foKku] vf/kfu;e&2009 dh /kkjk 48 ds vuqlkj foHkkxh; le>[email protected]'keu ds ek/;e ls mDr mYya?ku dk fuLrkj.k lEHko gS ftlds fy, fu/kkZfjr le; lhek ds vUrZxr lgk;d fu;a=d] fof/kd eki foKku] vkxjk e.My] vkxjk dks lEcksf/kr le>[email protected]'keu izkFkZuk i= :0 [email protected]& dh dksVZ Qhl fVfdV lfgr bl dk;kZy; es izLrqr dj ldrs gSA fu/kkZfjr le; lhek ds vUrZxr vkidk lUrks"ktud mRrj izkIr u gksus dh n'kk esa ;g le>k tk;sxk fd vkidks bl lEcU/k esa dqN ugha dguk gS vkSj ekeys dks oS/kkfud dk;Zokgh gsrq ekuuh; l{ke U;k;ky; es izsf"kr dj fn;k tk;sxkA ftlds fy, vki Lo;a mRrjnk;h gksaxsA "

The applicants submitted their reply dated 21.10.2016 that they do not deal with liquids, there is no occasion for them to use a volume measure, same was left by a farmer. Not satisfied with the reply, a complaint under Section 24/33 of the Act came to be filed. The learned Magistrate on 20.12.2016 while entertaining the complaint took cognizance u/s 24/33 of the Act and summoned the applicants.

Learned counsel for the applicants assails the complaint proceedings on the ground that assuming all the allegations to be true/ correct, no offence is made out.

The learned A.G.A, opposed the submission on the ground that recovery of a volume measure (10 litres) at the premises of applicant is used for "protection" of the seeds as defined under Section 2(k) of the Act and as the same was unverified, a prima facie commission of an offence under Section 24/33 of the Act is disclosed. He further submits that at the stage of summoning, the Court has to only form a prima facie opinion as to the commission of offence, the Court is not expected to conduct an elaborate enquiry.

The Preamble of Legal Metrology Act 2009 indicates that it is an Act to establish and enforce standards of weights and measures, regulate trade and commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and for matters connected therewith or incidental thereto.

Section 24 of the Act is extracted hereunder: -

"24. Verification and stamping of weight or measure.- (1) Every person having any weight or measure in his possession, custody or control in circumstances indicating that such weight or measure is being, or is intended or is likely to be, used by him in any transaction or for protection, shall, before putting such weight or measure into such use, have such weight or measure verified at such place and during such hours as the Controller may, by general or special order, specify in this behalf, on payment of such fees as may be prescribed."

Section 24 of the Act can be split in two parts; the first part relates to unverified weight or measure, being or is intended or is likely to be used for any transaction; the second part relates to protection. In other words, to constitute an offence under first part, the complaint must allege that the accused was using or intended to use or was likely to use an unverified weight/ measure in his possession in a transaction. The complaint is not alleging any culpability of the first part as admittedly the applicant in view of the nature of the product (seeds) sold by him could not use the alleged volume measure in any transaction. To constitute an offence under second part of Section 24, complaint must allege that the weight or measure (unverified) in his possession is being used or is intended or is likely to be used for protection.

The word "protection" has been defined in Section 2(k) of the Act as under: -

"2(k): - "protection" means the utilisation of reading obtained from any weight or measure, for the purpose of determining any step (emphasis by me) which is required (emphasis by me) to be taken to safeguard the well-being of any human being or animal, or to protect any commodity, vegetation or thing, whether individually or collectively."

Thus a conjoint reading of the second part of Section 24 along with the definition of the word "protection" would lead to the conclusion that if an unverified weight/ measure is to be utilized for obtaining a reading for the purpose of determining any step (emphasis mine), which is required (emphasis mine) to be taken to safeguard to protect the well-being of any human being or animal or to protect any commodity (seeds in the present case), vegetation or thing, whether individually or collectively, shall constitute an offence under Section 24.

The word "required" as defined in the New Lexicon Websters Dictionary (Deluxe Encyclopedia, Edition 1988) means "to stipulate, to place an obligation on (someone), to need, something stipulated, demanded".

The word "required" came to be interpreted in a Division Bench judgment of the Patna High Court in India Mica and Micanite Industries Ltd. Vs. Union of India and another, AIR 1967 (Patna) 367, wherein the Division Bench had an occasion to examine the term "required" in Clause 26 of the scheme framed under the Employees Provident Fund Act 1952, wherein the words used were "every employee shall be entitled and required (emphasis mine) to become a member of the fund". The Patna High Court held that the word "required" implies an obligation on the employer to treat all the employees, who are qualified and who are not exempted as membes of the fund and to pay the contribution to the fund.

Thus what follows from the above discussion is that in order to constitute an offence under Section 24/33 of the Act, it ought to be alleged, that for the purpose of protecting the seeds, a step (emphasis mine), was obligated / stipulated to be performed, involving the use of a measure to protect the seeds. For example, if for protecting a quintal of seeds, a defined quantity of liquid is to be measured, as a step for protection of a quintal of seeds, as is required, then the recovery of an unverified measure would constitute an offence under Section 24/33 of the Act.

Allegations made in the complaint are only to the effect of recovery of a volume measure of 10 litre from the premises of applicants. There is no whisper that for utilization of a reading from a volume measure for the purpose of determining any step is required / obligated to protect the commodity, i.e, the seeds. Unless this is alleged, the offence u/s 24/33 of the Act is neither complete nor established.

The Apex Court in Amit Kapoor vs. Ramesh Chander (2012) 9 SCC 460 while reiterating the principles laid down in State of Haryana vs. Bhajan Lal, AIR 1992 SC 604, culled out categories of cases, wherein at a threshold stage, criminal prosecution could be quashed either in exercise of powers under Article 226 of the Constitution or under Section 482 Cr.P.C, as the case may be, with a view to either prevent abuse the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to compartmentalize each and every such contingencies, but nevertheless following categories were mentioned in Amit Kapoor (supra):

1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

3) Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

6) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, doe not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offfence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offfence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

11) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

12) It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

13) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

15) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

17) These are the principles which individually and preferably a cumulatively (one or more) are to be taken into consideration.

In the absence of material allegations/ essential ingredients as to the commission of the offence, the case is squarely covered by Amit Kapoor (supra) that in the absence of any factual foundation disclosed as to the commission of the offence in the complaint, prosecution would be an abuse of the process, which is liable to be quashed.

The application succeeds and is allowed.

The proceedings of Complaint Case no.1588 of 2017 (State Vs. Anil Kumar Goyal and others), under Section 24/33 of The Legal Metrology Act, 2009, pending in the Court of Chief Judicial Magistrate, Court no.1, Agra, are quashed.

Order Date :- 16.5.2017

N.S.Rathour