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Inspector Of Legal Metrology vs The Copy Of The Charge Sheet Has Been on 14 October, 2022

                                   1       CC No.12154/2016

     KABC030315052016




     IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
               MAGISTRATE, AT BANGALORE.

              Dated this the 14th day of October 2022

                    Present : Sri.R.Mahesha,
                                    B.A.L.,LLB.,
                              IX Addl.C.M.M., Bengaluru.

                          CC NO.12154/2016

1.C.C.No.                      12154/2016

2.Date of offence              14/1/2016
3.Complainant                  Inspector of Legal Metrology,
                               N.T. Pete Sub-Division, Bengaluru.
4.Accused                      1. Hiralal Choudhary
                                  S/o Jeeralal Choudhary,
                                 M/s. Heera & Co., No.44-B,
                                 Besettypet, Chickpet Cross,
                                 Bengaluru-560053.
                               2. Ramesh Kumar
                                  M/s. Manisha Enterprises,
                                 No10, Huriopet, BVK Iyangar
                                 Road Cross, Bengaluru-560053.

                               3. Anil Jain (Abated)
                                 2       CC No.12154/2016

Offences                    U/Sec. 36(1) of the Legal Metrology Act
complained of               2009 r/w Rule 32(1) of Legal Metrology
                            (Packaged commodities) Rules 2011.
6.Plea                      Accused No.1 and 2 pleaded not
                            guilty.

7.Final Order               Accused No.1 and 2 are acquitted.

8.Date of Order             14/10/2022.



                            JUDGMENT

The Inspector of Legal Metrology, NT Pet, Sub- Division, Bengaluru, has filed this charge sheet against the accused No.1 to 3 for the offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011.

2. The brief facts of the prosecution case are as under:

It is the case of the prosecution that on 14.01.2016 at about 4.30 p.m., you accused No.1 being the 3 CC No.12154/2016 proprietor of M/s Heera and Company and accused No.2 being the distributor of pre-packed packages found in possession of the packets on which declaration of retail sale price, the quantity, the year and month of packing were not disclosed and thereby committed an offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011. In this regard, CW.1 lodged complaint for the offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011.

3. After registration of complaint the accused No.1 to 3 have been enlarged on bail. After filing of the charge sheet this Court has taken the cognizance of the offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011 and issued summons to the 4 CC No.12154/2016 accused. The copy of the charge sheet has been furnished to the accused as per Sec.207 of Cr.P.C. After hearing both sides, the accusation has been framed and read over to the accused. They have pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case has examined only two witnesses as PW.1 and PW.2 and got marked 15 documents as Ex.P.1 to Ex.P.15 and MO.1. Thereafter, the statement of the accused No.1 and 2 have been recorded u/Sec.313 of Cr.P.C. They have denied all the incriminating circumstances appearing against them in the prosecution evidence.

5. I have heard the arguments of both sides. Perused the evidences and documents placed on record.

6. The points that arise for my consideration are as under:

(1)Whether the prosecution proves beyond reasonable doubt that on 14.01.2016 at about 4.30 p.m., you accused No.1 being the proprietor of M/s Heera and Company and accused No.2 being the distributor of pre-

packed packages found in possession of the packets on which declaration of retail sale price, the quantity, the year and month of packing were not disclosed and thereby committed an offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011 ?

(2) What order ?

7. My findings to the above points are as under:

Point No.1 : In the Negative, Point No.2 : As per final order, for the following :

REASONS

8. Point No.1 : It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused No.1 and 2 to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.

9. The main allegation of the prosecution is that on 14.01.2016 at about 4.30 p.m., you accused No.1 being the proprietor of M/s Heera and Company and accused No.2 being the distributor of pre-packed packages found in possession of the packets on which declaration of retail sale price, the quantity, the year and month of packing were not disclosed and thereby committed an offences punishable u/Sec. 36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011.

10. In order to prove the case of the complainant one Legal Metrology Inspector Smt.Vanishri examined as PW.1. She deposed before this Court that she had been working as Legal Metrology Inspector from 4/9/2015 in the office of N T Pet, Sub-Division, Bengaluru - IV. On 14/1/2016 she and her peon visited the trading premises of one Sri.Eralal Choudary, Proprietor 7 CC No.12154/2016 M/s.Heera and Company, No.44 B, Besettypet, Chickpet Cross, Bengaluru - 53. She made inspect some pre- packed pockets it is found that 5 pre-packed package of "CEEJE" brand switches and accessories which were supplied by M/s.Manisha Enterprisess, BVK Iyengar Road, Bengaluru, through invoice No.1938 dated 11/12/2015. The above packages are not complied the declarations of retail sale price on the above seized packages are not definite and quantity has been not declared and month and year of packaging is not declared as per the provisions of the Legal Metrology Act, 2009, Sec.18(1) and Legal Metrology (Packaged Commodities Rules, 2011, R.IV, 6(1)(c)(d)(e) 2 (m), 12, 18(1). The certificate of registration of manufacturer/packer was not submitted to this office. Therefore, the accused No.1 being retailer by keeping the above pre-packed packages for sale and other accused No.2 being distributor of the above pre-packed packages 8 CC No.12154/2016 supplied to accused No.1, accused No.1 to 3 have violated requisite Legal Metrology Sections and Rules and Legal Metrology Packaged Rules. Therefore, she by following the procedure prescribed under the Metrology Act and Rules she seized and get signature of CW.2 and she continued further investigation and she issued notice to supplier and producer of above seized articles i.e. the accused No.2 and 3 and she also issued compounding notice to accused No.1 and she produced 15 documents which were collected during her investigation and seized articles before this Court. The said documents got marked as Ex.P.1 to Ex.P.15 and the seized articles got marked as MO.1 before this Court. She has been subjected for cross-examination by accused NO.1 and 2. It is relevant to note that during the pending trial of this case it is reported that the accused No.3 died. Therefore, case against accused NO.3 stood as abated vide order dated 11/3/2020. 9 CC No.12154/2016 During the course of cross-examination by accused No.1 and 2 PW.1 stated that Ex.P.5 is a compounding notice and not demanding notice. She did not took signatures of accused on Ex.P.3 and further she admitted that she did not took signatures of five panchas on Ex.P.3. She clearly admitted before this Court that in MO.1 there is a five sealed packets are there. She specifically denied the suggestion of accused NO.1 and 2 that MO.1 had commodity name, price, manufacture date and expiry date etc on the pack. She stated specifically that the MO.1 pack had only customer care number. Further PW.1 clearly and categorically admitted in the cross- examination that on MO.1 there is a printed on pack that manufacture year and month and it is rounded off and she specifically contended during the course of cross- examination that they did not packed MO.1 as per Legal Metrology Packaged Commodities Rules. Further she specifically denied the defence of accused the accused 10 CC No.12154/2016 NO.1 and 2 made suggestion to PW.1, PW.1 demanded Rs.30,000/- bribe as per Ex.P.8. She specifically answered to the above suggestions that she gave replied to Ex.P.8 as per Ex.P.9 and other formal suggestions made by accused No.1 and 2 are clearly and categorically denied by PW.1 during the course of cross-examination.

11. Further prosecution in order to prove its case one Laxmipathi retired Peon has examined as PW.1. He deposed before this Court that he had working as Peon from 2012 to 2016 in the office of Legal Metrology Inspector office, N T Pet, Bengaluru. Further he stated that on 14/1/2016 at about 4.30 pm he and PW.1 went to Heera and Electrical shop for the purpose of inspection. PW.1 made enquiry regarding packed commodities i.e. CJ brand switch and accessories, it is found that they did not printed on the pre-packed packets, MRP, quantity as prescribed Legal Metrology 11 CC No.12154/2016 (Packed Commodities Rules). Therefore, this fact has been explained to shop owner Heeralal and one pack had been seized by PW.1 and drawn panchanama at the spot and he signed on the said panchanama i.e. Ex.P.3. and he identified his signature on Ex.P.3 and accused No.1. He has been subjected cross-examination by accused No.1 and 2. During the course of cross-examination it is elicited from the mouth of PW.2 that he studied in Kannada medium upto SSLC, he failed in SSLC. He can read English languages but he could not capable to understand the contents of English language. He clearly admitted that he had worked under CW.1 in their office as Peon. He expressed in ability to say actual contents of Ex.P.3. Further he clearly admitted that he signed on Ex.P.3 due to instructions given by CW.1. Therefore, he put his signature on Ex.P.3 and other formal suggestions made by accused during the course of cross-examination clearly and categorically denied.

12. On perusal of oral and documentary evidence it is forth-coming that CW.1 accompanied with CW.2, visited the accused No.1 shop and she found pre-packed packages in his shop the said packet did not contained declaration of retail sale price, quantity the year and month of packing. CW.1 seized the said articles as per provided software by the concerned department i.e. digitally. The accused No.1 and 2 mainly attacked the evidence of PW.1 and PW.2, the seizure panchanama made by CW.1 is not in accordance with law, she did not took signatures of two panchas and she did not took signatures of accused. Therefore, the said panchanama created for the purpose of this case in the office of CW.1 in order to demanding bribe of Rs.30,000/- from accused. On this ground, the counsel for accused No.1 and 2 sought for acquittal of accused persons. To the contrary, the learned Sr.APP during the course of arguments, submitted that the CW.1 being competent 13 CC No.12154/2016 officer, when she inspected the shop of accused No.1 they did not followed pre-packed commodities rules, the accused No.1 being the Proprietor of M/s.Heera & Co and accused No.2 being the distributor of pre-packed packages. The seizure panchanama was made at spot all the official work like verification, inspection of the spot done through Emapan Software authorized by Government of Karnataka with the laptop and related electronic devices supplied to the office by the department (Annexure I, II & III). Therefore, inspection proceedings were done by as per the procedure made in software. The panchanama carried out as per the law. Therefore, prosecution proved the accusation made against the accused No.1 and 2. Therefore, he sought for convict the accused No.1 and 2 by imposting maximum penalty. With these rival submissions made by learned counsel for accused and Sr.APP this Court meticulously gone through the Sec.15(4) of Legal Metrology Act, 2009 14 CC No.12154/2016 for the better understanding same has been extracted here:

"Sec.15(4) of Legal Metrology Act, 2009 prescribes every search or seizure made under this section shall be carried out in accordance with the provisions of the code of Criminal Procedure, 1973(2) of 1974 relating to search and seizure. Sec.100(4) of Cr.P.C. before making a search under this chapter the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the placed to be searched is situate or of any other local other locality, if no search inhabitant of the said locality is available or his willing to be a witness to the search, to attend and witness the search and may issued an order in writing to them or any of them so to do".

13. As per the code and Legal Metrology Act any seizure should made in the presence of two panchas and they are independent and respectable inhabitants of the locality the place in which to be searched by the officer. In the present case facts are analysed admittedly Ex.P.3 15 CC No.12154/2016 bare signature of CW.1 and CW.2 no other witnesses are present at the time of carried out Ex.P.3 by CW.1. It is the case of the prosecution that CW.1 and CW.2 have visited the accused NO.1 shop on 14/1/2016 they found pre-packed articles the said articles did not contained declaration of retail sale price, the quantity, the year and month of packing. Therefore, they seized for further needful. The said articles seized in the shop of accused No.1 and in the presence of accused No.1. But CW.1 did not took signature of accused No.1 to Ex.P.3. So from this Court view Ex.P.3. not in accordance with law as prescribed under code of criminal procedure and Legal Metrology Act, 2009, if complainant drawn panchanama at accused NO.1's shop for what reason she could not took signature of accused on Ex.P.3 and for what reason she did not took the signatures of local independent witnesses to Ex.P.3. The said reasons not forth-coming from the evidence of PW.1 and PW.2. Though the 16 CC No.12154/2016 accused NO.1 and 2 suggested PW.1 she demanding bribe of Rs.30,000/- to close the case it was denied by PW.1 but accused clearly stated in Ex.P.8 the accused NO.1 and 2 representative one Ramesh Kumar visited the office of CW.1 and she told him that they have been given a target of Rs.15,00,000/- and demanded an amount of Rs.30,000/- from him to clear the above matter. But accused did not substantiate the said suggestion made to PW.1 regarding demanding of Rs.30,000/- by CW.1. On perusal of MO.1 and Ex.C.1 it indicates that "This is a whole sale pack not for retail sale manufacture and retail price as per inner pack." Further it can be seen from MO.1 and Ex.C.1 that this pack contained 5 pcs 240 Voltage only. On perusal of inner pack it found that they printed manufacture date and month. But it is round mark by red pen. Further it is relevant to note that the admission of PW.1 during the course of cross-examination that " ಎಂ.ಓ.1 ರ ಒಳಗೆ 5 ಸೀಲ್‍ 17 CC No.12154/2016 ಮಾಡಿರುವ ಪಾ‍ಕೇಟ್‍ಗಳಿವೆ ಎಂದರೆ ಸರಿ. ಎಂ.ಓ.1 ರ ಪ್ಯಾಕೇಟ್‍ ಮೇಲೆ ಉತ್ಪಾದಿತ ವರ್ಷ ಮತ್ತು ತಿಂಗಳು ಪ್ರಿಂಟ್‍ಮಾಡಿ ರೌಂಡ್‍ಮಾಡಿದೆ ಎಂದರೆ ಸರಿ. Further it is relevant to note that the admission of PW.2 during the course of cross-examination that " ನಾನು ಚಾಸಾ.1 ರವರ ಕೈ ಕೆಳಗೆ ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದೆ ಎಂದರೆ ಸರಿ. ನಿಪಿ.3 ಕ್ಕೆ ಚಾಸಾ.1 ರವರು ಸಹಿ ಮಾಡಲು ಹೇಳಿದ್ದ ರಿಂದ ಸಹಿ ಮಾಡಿರುತ್ತೇನೆ ಎಂದರೆ ಸರಿ. The Ex.P.3 is important document the prosecution failed to prove Ex.P.3 done by CW.1 in accordance with law. Therefore, it creates serious doubt regarding prosecution case. It is settled principle of law that if any doubt arose regarding prosecution case this shall goes to accused No.1 and 2. This Court give benefit of doubt to accused No.1 and 2. Hence, this Court answer Point No.1 in the negative.

14. Point No.2: For the afore said reasons, this Court proceed to pass the following:

ORDER Acting under Section 255(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted of the offences punishable u/Sec.36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011 of IPC.

The bail bonds executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.

MO.1 and Ex.C.1 returned to accused No.1 after expiry of appeal period for proper identification and acknowledgment.

(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 14th day of October 2022).

(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.

ANNEXURE List of witnesses examined on behalf of the prosecution:

PW.1:         Smt.Vanishri
PW.2:         Laxmipathi.

List of documents marked on behalf of the prosecution:

Ex.P.1 :     Complaint
Ex.P.2&3 : Panchanamas
Ex.P.4 :     Invoice
Ex.P.5 :     Notice
Ex.P.6 :     Letter
Ex.P.7 :     Notice
Ex.P.8 :     Letter
Ex.P.9 :     Notice
Ex.P.10&11: Visiting cards
Ex.P.12 to 14: Acknowledgments
Ex.P.15:      E-mail.

List of material objects marked on behalf of the prosecution:

MO.1 : Packets.

List of witnesses examined on behalf of the defence:

- NIL-

List of documents and materials marked on behalf of the defence:

- NIL-

IX ADDL.C.M.M. Bengaluru.

14/10/2022 Judgment pronounced in the Open Court (Vide separate order) ORDER Acting under Section 255(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted of the offences punishable u/Sec.36(1) of the Legal Metrology Act 2009 r/w Rule 32(1) of Legal Metrology (Packaged commodities) Rules 2011 of IPC.

The bail bonds executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.

MO.1 and Ex.C.1 returned to accused No.1 after expiry of appeal period for proper identification and acknowledgment.

IX ACMM, Bengaluru.