Delhi High Court

Mars International India Pvt Ltd vs State Of Nct Of Delhi on 10 October, 2011

Author: Suresh Kait

$~04
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.M.C.3678/2010 & Crl.M.A.17810/2010

%              Judgment delivered on:10th October, 2011

MARS INTERNATIONAL INDIA PVT LTD         ..... Petitioner
                       Through:Mr.C.D. Mulherkar, Adv.

                      versus

STATE OF NCT OF DELHI                           ..... Respondent
                                Through:Ms.Rajdipa Behura, APP
                                for State


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers
        may be allowed to see the judgment?              Yes.
     2. To be referred to Reporter or not?               Yes.
     3. Whether the judgment should be reported
        in the Digest?                                   Yes.

SURESH KAIT, J. (Oral)

1. Vide the instant petition, the petitioner has prayed as

under:-

"a) Call for the records of the trial court, and after perusal of the same be pleased to quash the undated complaint case No.NCT/ DELHI/W&M/SWZ/724-28 also having number 514/2009, titled „Inspector of Legal Metrology Vs.M/s Spencer‟s Daily‟ presently

pending in the Court of Shri Pulastya Pramachala, Metropolitan Magistrate, Evening Court No.4, Karkardooma, Delhi, in so far as it pertains to Mars International India Private Limited, alongwith proceedings there under: and

b) Quash the so-called summoning order dated 14 July 2009 passed by the learned Special Metropolitan Magistrate in the said case".

2. After considering the challan vide order dated

14.07.2009, learned Metropolitan Magistrate passed the

summoning order and issued summons against the

petitioner vide following under:-

"C. No.514/09 u/S 33/51 W & M Act Fresh challan received.

It be checked and registered. Issue fresh summon to the accused for 16.10.09."

3. Learned counsel for the petitioner submits that the

product in question in the present matter i.e. „Bounty‟

chocolate being imported by Mars India. At the relevant

time, the Bounty packets contain the postal address and

phone number of the manufacture, who can be contacted for

any consumer complaint. Additionally, the email address of

the manufacturer also given. Therefore, there was due

compliance of requirements by mentioning of phone

number. Thus, Mars India has complied with the requirement

of having consumer complaint number.

4. The facts in brief are that; on 25.11.2008 a Inspector of

Legal Metrology, Government of NCT of Delhi allegedly

visited a shop by name of „M/s Spencer‟s Daily‟ at Tilak

Nagar, New Delhi and purchased a packet of Bounty

Chocolate imported by Mars India Private Limited and certain

other food articles (which do not relate to Mars India Limited,

therefore, no relevant to the petitioner). A notice dated

10.12.2008 was allegedly issued to the petitioner from the

office of controller of Legal Metrology, Govt of NCT of Delhi

alleging that the petitioner has committed breach of Section

33 of the Standards of Weights and Measures (Enforcement)

Act, 1985 and was therefore, guilty of an offence under

Section 51 of the said Act.

5. Further submits that the notice was issued because of

violation of Standard of Weights and Measures (Packaged

Commodity) Rules, 1977 by the petitioner as the packet of

„Bounty‟ did not bear the consumer care number.

Thereafter, the department of Weighs and Measures, Govt.

of NCT of Delhi in mechanical manner filed an undated

complaint under Section 63 of the Standards of Weights and

Measures (Enforcement) Act, 1985 and Section 72 of the

Standards of Weights and Measures Act, 1976 before learned

Metropolitan Magistrate.

6. Learned counsel for petitioner has raised a legal plea

that the complaint was apparently filed much after the

expiry of the statutory period of limitation. The complaint is

undated and it has not been examined as to whether SWME

Act and consequently, SWM Rules does not apply to the said

packet, since no notification applicable to SWM Act to the

chocolate have been issued.

7. Further submits that learned Metropolitan Magistrate

issued the summons in the complaint even without passing

any order taking cognizance therein and without

appreciating that the complaint was time barred. Admittedly,

no application seeking condonation of delay has been filed

by the department.

8. On the other hand, Ms.Rajdipa Behura, learned APP for

State submits that against the violation notice dated

10.12.2008 was issued, wherein it is clearly mentioned that

the petitioner has committed the breach of Section 33 of the

Standards of Weights and Measures (Enforcement) Act, 1985

and therefore, guilty of offence under Section 51 of the said

Act. However, Section 65 of the said Act provides for

compounding of the offences on payment for the credit of

Government the amount as may be specified by the

Controller/Assistant Controller/Legal Controller/Metrology

Inspector.

9. Thereafter, another notice dated 10.01.2009 was

issued to the petitioner in spite of that, the petitioner did not

come forward for compounding the offence.

10. Learned APP has referred to the Section 468(2) of

Criminal Procedure Code wherein the period of limitation

provided is only six months if the offence is punishable with

fine only. Further submits that the instance case, petitioner

has committed offence for the first time, therefore, the

offence is punishable with fine only.

11. Further referred to Section 473 of the Criminal

Procedure Code which is reproduced as under:-

"473. Extension of period of limitation in certain cases.-- Notwithstanding anything contained in the foregoing provisions of this Chapter, any court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice."

12. Learned APP further submits that if it is necessary, in

the interest of justice, the delay could be condoned. She has

relied upon Abubaker Vs. State of Kerala 2001 (2)

Crimes 212 decided by the Kerala High Court wherein the

final report was filed in the Court after three years from the

date of occurrence. The Magistrate before whom the final

report was filed, beyond the period of limitation, has power

to consider the question whether there was sufficient

reasons for condonation of delay, in giving the final report.

The Court has held that the Magistrate has powers to

condone the delay in deserving cases.

13. She has further relied upon the judgment of Supreme

Court in Vanka Radhamanohari Vs. Vanka Venkata

Reddy (1993) 2 Crimes (SC) 275 wherein it was held that

in view of Section 473 Cr. P.C. Court can take cognizance of

the offence only when it is satisfied that in the facts and

circumstances of the case, the delay has been properly

explained, but even in the absence of proper explanation, if

the Court is satisfied that it is necessary to do so, in the

interest of justice. The said Section 473 has non-obstante

clause which means that the said section has overriding

effect on Section 468, if the Court is satisfied on the facts

and in the circumstances of a particular case, that either the

delay has been properly explained or that it is necessary to

do so in the interest of justice.

13. In para No.8 of Vanka Radhamanohari (supra) there

is also a reference of Bhagirath Kanora Vs. State of M.P.

(1984) 4 SCC 222 wherein it has been held as under:-

"That section is in the nature of an overriding provision according to which notwithstanding anything contained in the provisions of chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in S.473 of the Code."

14. At the last, learned APP submits that though, no

application for condonation of delay has been moved, even

then the Court on its own can condone the delay in the

interest of justice.

15. Law is settled, as held in Abubaker (supra) no doubt,

the Magistrate has power to condone the delay, where there

is sufficient reasons being given for condonation of delay.

However, while, condoning the delay either on application or

on suo motto the concerned Magistrate has to explain the

reasons while passing order.

16. As also has been held in Vanka Radhamanohari

(supra) by the Apex Court that there cannot be any dispute

that in view of the allegations regarding the second marriage

by the respondent during the continuance of the first

marriage, prima facie, offence under Section 494 Indian

Penal Code, 1860 has been disclosed in the complaint, there

was no question of Section 468 of the Code being applicable

to the offence under Section 494 Indian Penal Code, 1860.

In view of Section 473 Cr. P.C. undoubtedly, the Court can

take cognizance of the offence not only when it is specifically

and properly explained, but in the absence of proper

explanation too.

17. I note that the complaint is undated; second the order

passed by learned Metropolitan Magistarte is without

application of mind as the summoning order is a stereo-

typed one. I further note, only the case number, offence

under Section, the date of order and next date of hearing is

hand written, remaining part is printed one.

18. Learned Magistrate has not even took pain to have a

glance over the form of complaint, where number of columns

are blank. No orders has been passed while condoning the

delay. Even otherwise, on the seized packet only missing

phrase is "or call at (phone Number)" whereas in seized

packet, it is printed as under:-

             "Imported        and      distributed     by     Mars
             International     India     Pvt   Ltd,    3rd   Floor,
             Gandharva        Mahavidyalaya,          212,   Deen

Dayal Upadhay Marg, New Delhi - 110002 India. For consumer complaint /feedback, write to [email protected] MRP Rs.30 (inclusive of all taxes and duties)"

19. In my view, sufficient information are there on the

seized packet, to lodge the complaint regarding any defect

in the product.

20. In the present case, even otherwise, the prescribed

limitation period is six months and maximum extendable fine

is `5,000/- being the first time offence. Petitioner has

suffered a lot due to pendency of present case for the last

three years. No purpose would be served by extending the

limitation period while condoning the delay. Therefore, in the

interest of justice, I set aside the summoning order dated

14.07.2009 passed by learned Magistrate.

21. Accordingly, Criminal M.C.No.3678/2010 stands allowed