Vikram Bakshi vs State & Anr,
2012 Latest Caselaw 4880 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             RESERVED ON: 14.08.2012
                              PRONOUNCED ON: 22.08.2012

+     CRL.Rev.P.569/2003

      VIKRAM BAKSHI                            ........Petitioner
                          Through: Mr.Ravi Gupta, Sr.Advocate
                          With Mr.Ankit Jain, Advocate.

                 Versus

      State & Anr.                             .....Respondent

Through: Ms.Rajdipa Behura, APP for State/Res.No.1 Ms.Sana Ansari, Advocate for Ms.Zubeda Begum, Advocate For Res.No.2.

CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI

%

1. This petition under Section 397/401 read with Section 482

Cr.P.C has been filed praying for setting aside the order dated

29th May, 2003 and 12th June, 2003, passed by learned MM,

whereby the prayer of the petitioner for dropping of the

proceedings was declined and notice under Section 251 Cr.P.C

was served.

2. In brief, the case of the petitioner is that he is the

Managing Director of M/s.Connaught Plaza Restaurant Pvt. Ltd.,

47, Basant Lok, Vasant Vihar, New Delhi.

3. During inspection of the Restaurant on 23rd July, 1997, the

Inspector noticed, milk shake being sold in glass and the

quantity was not mentioned either on the glass or on the notice

board. Petitioner was served with notice under Section 9 (2)

and 38 of the Weights and Measures (Enforcement) Act, 1985

(hereinafter referred to as "the Act"). Petitioner contested the

notice but without success resulting in initiation of proceedings

against him before the Court.

4. Petitioner filed an application under Section 258 Cr.P.C.,

for dropping of the proceedings, which was dismissed vide

order dated 29th May, 2003. On 12th June, 2003, the Court

served the notice under Section 251 Cr.P.C. on the petitioner to

which he pleaded not guilty. He now impugns the orders before

this Court on the ground that milk shake was sold in a glass

through dispenser and provisions of Section 9(2) and 38 of the

Act are not applicable in such type of sale, he is exempted from

the provisions of the Act.

5. Notice of the petition was sent to the respondents.

6. Brief written synopsis have been filed by the parties. I

have heard Mr.Ravi Gupta, learned senior counsel for the

petitioner.

7. On behalf of the petitioner it has been submitted that

there is wrong invocation of provisions of Section 9(2) of the

Act as the said provision only prohibits the use of weights and

measures other than standard weights and measures, which is

not the case of the prosecution. It is further submitted that

Section 2(I) defines „pre-packed commodity‟, meaning thereby

that the commodity is packed in a package of whatever nature

so that the quantity contained therein having a predetermined

value could not be altered without the package or its lid/cap

opened or modified. The expression „Package‟ means a

package containing a pre-packed commodity. In the present

case, the milk shake sold in a glass is not covered under the

definition as it is not a pre-packed commodity.

8. Learned senior counsel for the petitioner referred to

Section 2(p), which defines „Retail Package‟, which means a

package containing any commodity which is produced,

distributed, displayed, delivered or stored for sale through

retail sale agencies. Chapter II contains the various provisions

applicable to packages intended for retail sale.

9. Learned senior counsel for the petitioner referred to Rule

34(1)(d), which provides that any package containing fast food

item packed by a restaurant/hotel and like are exempted from

the provisions of these Rules.

10. Mr.Ravi Gupta, learned senior counsel submits that in this

case milk shake sold in a glass is just like food and other

articles which are sold and served in a restaurant. Hence the

sale of milk shake without specifying the quantity is exempted

and the learned trial court has wrongly ordered for issuance of

notice under Section 251 Cr.P.C., after dismissal of application

for dropping of the proceedings.

11. On behalf of the respondent, brief written synopsis were

filed. Paras 1, 2 and 3 of the written synopsis referred to the

maintainability of the revision petition before this Court without

seeking remedy before the Court of Session. In this regard,

suffice it to mention that on 2nd November, 2011 this Court

after referring to the case law, referred to by the learned

counsel for the petitioner, observed that the case pertains to

the year 2003 and for 8 long years, respondent No.2 never

raised such issue or even bothered to file reply to the instant

petition. The availability of an alternative remedy is, even

otherwise, a self imposed restriction and not a bar to the

exercise of jurisdiction by a writ court. So this contention no

longer survives.

12. It is submitted on behalf of the respondent that glass of

milk shake is neither a „pre-packed commodity‟ nor the

petitioner was prosecuted for violation of Packaged Commodity

Rules, 1977. It is submitted that the standard weights and

measures were introduced for the purpose of standardizing the

weights and measures so that the people cannot sell the goods

by their own whims and fancies. Learned counsel also referred

to Clause 14 and 12 of the Act, where „I‟ and „ml‟ are the

standard unit of volume. Learned counsel submits that in the

instant case, it is clear that the petitioner was selling milk

shake in a glass and the quantity filled in the glass is measured

in terms of volume, namely, I/ml. The seller is under a contract

to serve a particular quantity in standard weight or measure.

Milk shake served through measure of glass only and without

quantified in terms of „I/ml‟ cannot be termed as standard

weight and measure, that the milk shake could be sold through

standard measure i.e. „ml‟ in the present case. The milk shake

being sold in measure of glass is non standard variable entity

which is vague and against the interest of consumer. Hence

there is a contravention of Section 9(2) of the Act.

13. I have considered the submissions made by learned

senior counsel for the petitioner as well as the submissions

made on behalf of the respondent. A perusal of copy of the

order dated 22nd April, 2003 reveals that while making

submission on the application for dropping of proceedings and

on service of notice under Section 251 Cr.P.C., it was

contended before the learned Trial Court that accused was not

selling the milk shake in the packed form and the Act governs

only 2 kinds of commodities, namely, „which are in the

packaged form‟ and „which are not in a packaged form‟. Once

the petitioner is able to bring on record that he was not selling

the milk shake in packaged form, he could not be prosecuted

under this Act.

14. While dealing with this contention, the learned trial court

observed that the accused was not prosecuted by the

complainant for selling the commodities in violation of Weights

and Measures (Packaged Commodity) Rule, 1977. Thereafter,

at the request of the accused, the matter was adjourned for

further arguments on 29th May, 2003. Further arguments were

advanced on the application, seeking dropping of proceedings

but at that time, the accused changed the stand, which was

noticed by the learned trial court as under:-

"Although on the last date of hearing, learned defence counsel had started with the submissions that his clients are selling milk shake in their McDonald Restaurant at Vasant Lok, Vasant Vihar in „Unpackaged form‟. However, today he has submitted second limb of his arguments with the submissions that actually they are selling milk shake in „packaged form‟.

15. The contention of the complainant before the trial court

was as under:

"It is contended on behalf of the complainant that since the glass of the accused is neither a pre-packed commodity nor they are being prosecuted for violation of Packaged Commodity Rules, they cannot be allowed to avail the benefit of exemption, provided u/s 34 of Packaged Commodity Rules. It is further observed that accused have failed to show on record that they have any registration u/s 35 of Packaged

Commodity Rule (P.C. Rules), so as to substantiate as they are in the business of packaging fast food items."

16. The learned Trial Court took note of the contention of the

complainant that glass of milk shake is neither a pre-packed

commodity nor they are being prosecuted for the violation of

Packaged Commodity Rules. The accused cannot be allowed to

avail the benefit of exemption provided under Section 34 of

Packaged Commodity Rules. There was nothing on record to

show that the accused had any registration under Section 35 of

the Packaged Commodity Rules. The learned trial court was of

the view that even if the contention of the accused that the

commodity is a packaged commodity is accepted then they are

covered under Sr.No.18 of 3rd Schedule, under Rule 5 of

Packaged Commodity Rules.

17. Finding that sale of milk shake in a glass without

specifying the quantity on the glass or on the notice board, the

court ordered for service of notice on the accused for violation

of Section 9 (2) and 38 of the Act.

18. The petitioner is facing trial in a summons trial case and

after dismissal of the application for dropping of the

proceedings, notice under section 251 Cr.P.C. has been served

upon him. Section 258 Cr.P.C. is the only provision under which

in a summon trial case the Magistrate can drop the

proceedings and if such order is passed after the evidence of

the principal witnesses, order will have the effect of acquittal

and in any other case after passing of the order of dropping the

proceedings, either to release the accused or have the effect of

discharge. Section 258 Cr.P.C. does not specify the

circumstances under which it can be used. Power to be

exercised by the learned Magistrate being discretionary in

nature has to be exercised after taking into consideration all

the relevant circumstances. Only in exceptional circumstances

that the accusations made against the accused do not

constitute any offence, that powers vested in learned M.M.,

under Section 258 Cr.P.C., can be exercised.

19. In the instant case the manner in which different stands

were taken by the accused before the learned M.M as to

whether the milk shake sold in the glass was to be termed as

packaged item or unpackaged item and whether sale of milk

shake in glass without mentioning quantity either on the

container or on the notice board amounted to violation of

Section 9 (2) and 38 of the Act can only be decided during trial.

The exemption claimed under Section 34 of the Act in respect

of the milk shake sold in a glass cannot be decided by this

Court while disposing of this revision petition. In the garb of

this revision petition the accused is seeking adjudication as to

whether the complaint is maintainable in view of the defence

that the provisions of Weight and Measurement Act are not

applicable in the given case which is beyond the scope of this

revision petition.

20. In Munna Devi vs. State of Rajasthan (2001) 9 SCC

631, it was held that the revisional power under the Code of

Criminal Procedure cannot be exercised in a routine and casual

manner. While exercising such powers, the High Court has no

authority to appreciate the evidence in the manner as the trial

and the appellate courts are required to do. Revisional powers

could be exercised only when it is shown that there is a legal

bar against the continuance of the criminal proceedings or the

framing of charge or the facts as stated in the First Information

Report even if they are taken at the face value and accepted in

their entirety do not constitute the offence for which the

accused has been charged.

21. The second contention of the petitioner that on the basis

of allegations, no notice under Section 251 Cr.P.C. could be

served on the accused, is again liable to be rejected for the

reason that Section 251 Cr.P.C. does not empower the

Magistrate to discharge the accused facing trial in a summons

trial case.

22. In Subramaniam Setu vs State of Maharashtra and

Anr. (2004) 13 SCC 324, the Hon‟ble Supreme Court while

dealing with identical situation observed as under:-

"16 The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplate a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion."

23. A Coordinate Bench of this Court in Asian Fans &

Appliances Co. Pvt. Ltd. & Ors. Vs. Usaka Industrial

Components Pvt. Ltd. - Crl.M.C.No.1543/2007 decided on

23.03.2009 had the occasion to deal with the provisions of

Section 251 Cr.P.C. and in paragraph-9, it was observed as

under:-

"9. On a bare reading of Section 251 it is manifest that at this stage the Magistrate is not required to make application of his mind and all that is required under Section 251 of the Code is that the substance of the accusation is to be stated and the accused is to be asked whether he pleads guilty or has any defence to make and it is not necessary to frame a formal charge. Chapter XX which provides for the procedure for trial of summons cases, contains 251 to 259. Section 251 provides that when an accused is brought before the Magistrate, the particulars of the offence of which he is accused of, shall be stated to him. After that, his plea of guilt is recorded and in case of examination of evidence under Section 255 of the Code, contained in this Chapter, the Magistrate shall acquit him if in his opinion the accused is not guilty of the offence. Under Section 251 of the Code only substance of the accusation has to be stated. Technically, it might be taken akin to the framing of the charge, but when the question of discharge is to be considered relatively with this provision, it cannot be equated with the framing of the charge."

24. Taking into consideration the fact that the plea taken by

the petitioner can be proved only during trial, this Court in

exercise of revisional jurisdiction cannot undertake the exercise

to examine the material on record and assume the role of the

Trial Court. By dismissing the application under Section 258

Cr.P.C. and serving notice under Section 251 Cr.P.C. on the

petitioner explaining the accusations against him, the learned

Trial Court has not committed any illegality or infirmity which

has resulted in any miscarriage of justice that needs to be

corrected by this Court.

25. Finding no merit in the revision petition, the same is

hereby dismissed. Since the matter is very old pertaining to the

year 2003 and the trial remained stayed for all these years due

to pendency of this revision petition, it is expected that the

learned Trial Court shall conclude the trial expeditiously.

                                                 Pratibha Rani,J
August      , 2012
aka.