Patna High Court
Belsand Sugar Co. Ltd. And Ors. vs The State on 6 May, 1964
Equivalent citations: AIR1965PAT369, 1965CRILJ398, AIR 1965 PATNA 369, 1964 BLJR 806
JUDGMENT Ramratna Singh, J.
1. The petitioners have come up to this Court for quashing the processing of a case instituted against them under Section 38 of the Bihar Weights and Measures (Enforcement) Act, 1959, read with Rule 24(iii)(a) of the Rules made under that Act. It was alleged that, when the Inspector of Weights and Measures made a surprise raid in the premises of the Belsand Sugar Mills at Riga in the district of Muzaffarpur on the 25th November, 1960, he checked 16 bags of sugar and found some shortage in the weight of 15 bags. The weight noted on each of the bags was 2 maunds 30 seers, and in 13 of them the shortage found was 1 chhatak or near about that quantity. In three bags, however, bearing Nos. 6761, 6428 and 5828, the shortage was to the extent of 4 chhataks, 4 1/2 chhataks and 3 1/2 chhataks, respectively. A petition of complaint was filed before the Subdivisional Magistrate of Sitamarhi by the Inspector on the 28th November, 1960, in respect of the shortages found in these three bags. Along with the petition of complaint was attached a note of the Inspector's inspection, in which he said that he seized the three bags of sugar on account of the aforesaid shortages which were weighed in his presence. It was not stated either in the petition of complaint or in the note of inspection, which the Inspector calls "seizure list", that the bags of sugar were meant for sale. The accused named in the petition of complaint were M/S Belsand Sugar Co. Ltd., Riga, and three gentlemen, who are the Secretary, the Chief Chemist and the Manufacturing Chemist of the said sugar mills.
2. The defence was that the prosecution was misconceived, inasmuch as Section 33 of the said Act did not apply to the instant case; on account of the provisions contained in Section 46 of the said Act, the relevant provisions of the Bihar Weights Act, 1947, applied. This objection was rejected by the learned Munsif Magistrate, to whom the case had been transferred by the Subdivisional Magistrate for trial. An application in revision against the said order of the Munsif Magistrate was rejected by the Sessions Judge of Muzaffarpur. Three of the accused then filed the present application in revision to this Court; and Mr. A. N. Sahai, who appeared for the petitioners, stated that probably on account of oversight the Chief Chemist of the mills was not impleaded as a party to this application in revision to this Court. That will not, however, be material, if Mr. Sahai's contention is accepted.
3. Mr. Sahai contended that the prosecution is misconceived in fact and in law. Section 46 of the 1959 Act lays down that in case the Central Government has issued a notification under Section 14 of the Central Act known as Standards of Weights and Measures Act, 1956, permitting for a certain time the continuance of the use, in respect of the same class of goods or undertakings, of such weights and measures (in addition to the standards of mass and measures) as are specified in the notification, then-
"(a) the provisions of this Act which relate to standard weights and measures shall not apply in that area or in relation to that class of goods or undertakings, to the additional weights and measures permitted to be so used; and
(b) the Bihar Weights Act, 1947, (including any rules and orders made thereunder) shall continue to have effect in those areas or in relation to those classes of goods or undertakings, for the purpose of the continued use of the additional weights and measures, and for any purpose incidental thereto or connected with the proper enforcement thereof; until the expiry of the period for which the Central Government has permitted the use of the additional weights and measures, and on the expiry of the period aforesaid, the Bihar Weights Act, 1947 (Bihar Act XVII of 1947) or the relevant provisions thereof, shall cease to apply in the manner and to the extent, as in that section provided."
4. It is admitted that a notification was in fact issued on the 31st January, 1959, under Section 14 of the Central Act permitting Belsand Sugar Mills Ltd., to use the weight in maunds and seers for a period of two years from the 1st November, 1959; and this notification was in force on the date of occurrence in the instant case. Mr. Sahai submitted that in view of Clauses (a) and (b) of Section 46 of the 1959 Act, Section 83 of that Act could not be applicable to the instant case and, instead, the Act of 1947 would apply, and if the bags of sugar in question were meant for sale, Section 29 of the 1947 Act would be attracted. On the other hand, it was contended on behalf of the State that Section 46 of the 1959 Act does not affect Section 33 of that Act it is, however, not necessary to resolve this difference between the contentions of the parties in the instant case, because the petitioners are not liable, in my opinion, either under Section 33 of the 1959 Act or under Section 29 of the 1947 Act. Section 33 enacts as follows:
"33. (1) All persons weighing or measuring any article in any trade shall subject to the provisions of Clause (c) of Section 44 immediately declare, report or record the true and actual weight or measure of the article.
(2) Subject to the provisions of Section 44 no persons shall in any trade misweigh or mismeasure or cause to be misweighed or mismeasured any article or falsely declare, report or record or cause to be falsely declared, reported or recorded, any weight or measure or shall otherwise fraudulently manipulate a weighing or measuring instrument to produce a weight or measure other than true and actual weight or measure of any article.
(3) Any contravention of any of the provisions of Sub-section (1) or Sub-section (2) shall be punishable with imprisonment for a period which may extend to one year or with fine which may extend to two thousand rupees, or with both."
The word "trade" is defined in Section 2(k) of the 1959 Act thus:
" 'trade' means every contract, bargain, sale or purchase or barter or dealing made for any work, goods, wares or agricultural products or merchandise, hire, wages, royalty, collection of the tolls or duties or other thing, which has been or is to be done, sold, delivered, carried or agreed for by weights or measures or by count;"
It will be noticed that this definition of trade contemplates two parties to any transaction; and, therefore, unless any contract, bargain, sale, etc. has been entered into between the Belsand Sugar Mills Ltd., and some other person or company, the penalty for false declaration of weight contemplated by Section 33 would not be attracted. It may be mentioned here that the learned Standing Counsel stated clearly in this Court that the Belsand Sugar Mills Ltd., and their officers were being prosecuted on account of the fact that the weight noted on each of the bags was 2 maunds 30 seers, whereas after actual weighment a shortage of 3 1/2 to 4 1/2 chhataks was found in the three bags in question. If the weight noted on these bags was not in respect of any trade, as defined, then it is obvious that the Belsand Sugar Mills Ltd., or its officers did not commit any offence contemplated by Section 33. Section 29 of the 1947 Act reads as follows:
"Whoever in selling any article by weight delivers or causes to be delivered to the purchaser a weight less than what is purported to be sold by an amount exceeding the amount of error prescribed to be tolerated under Section 24, shall, on conviction, be punishable with fine which may extend to throe hundred rupees."
It may be noticed that this section also speaks of sale, and to such a transaction there must be two parties. If the weight noted on the bags was not for the purpose of sale, then also no offence was committed under this section.
5. The next question, therefore, to consider is whether the marking of weights on the bags could be deemed to be for the purpose of sale or trade. Under Section 37(2)(iv) of the Central Excises and Salt Act, 1944, the Central Government is empowered to make rules to regulate the removal of excisable goods, including sugar, from the place where such goods are produced, stored or manufactured. The Central Government have framed rules under this section, known as the Central Excise Rules, 1944. Rule 9 lays down :
"(1) No excisable goods shall be removed from any place where they are produced, cured or manufactured or any premises appurtenant thereto, which may be specified by the Collector in this behalf, whether for consumption, export, or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these Rules or as the Collector may require, and except on presentation of an application in the proper form and on obtaining the permission of the proper officer on the form:"
Sub-rule (2) of this rule lays down the penalty for violation of the aforesaid provision. Rule 52 of the said rules lays down that, when the manufacturer desires to remove goods on payment of duty, either from the place or premises specified under Rule 9, he shall make application in triplicate to the proper officer in the proper form; and the officer shall, thereupon, assess the amount of duty due on the goods and on production of evidence that this sum has been paid into the Treasury, or paid to the account of the Collector in the Reserve Bank of India or the State Bank of India, or has been despatched to the Treasury by money order shall allow the goods to be cleared. Rule 52-A provides that no excisable goods shall be delivered from a factory except under a gate-pass in the proper Form; and gate-passes shall be maintained in two sets: one for clearance for home consumption and the other for clearance for export. It has not been alleged by the prosecution in the petition of complaint or the note of inspection of the Inspector of Weights and Measures that the Belsand Sugar Mills Ltd., or its officers have taken any action under the Central Excises and Salt Act, 1944 or the rules made thereunder for clearance of the sugar bags kept in the godown in the premises of the mills either for home consumption of for export or for any other purpose. Nor is it alleged that the weight was marked on the bags for the purpose of trade or sale. The relevant portion of the petition of complaint reads as follows:
"That on 25-11-1960, a surprise raid was made in the premises of the accused No. 1 of which as caused Nos. 2 to 4 are the officers. I tested sixteen bags of sugar meant for sale and found shortages in fifteen bags, the details of which are noted in the seizure list attached herewith.
That I have prepared a seizure list and have seized three bags No. 6761, 6428, 5828.
That the accused persons have committed offence punishable under Section 33 of the Bihar Act VII of 1959, read along with Rule 24(iii) (a) of the Bihar Weights and Measures Rules, 1960". It was contended by the learned Standing Counsel that the reference to Section 33 in the last paragraph quoted above amounted to an allegation that the bags of sugar were meant for trade or sale. But a complaint means "the allegation made orally or in writing to a Magistrate, with a view to his taking action....... that some person. .....has committed an offence" (see Section 4(h) of the Criminal Procedure Code).
In other words, the complaint should state the facts constituting an offence; but it is the Magistrate who has to decide what offence has been committed or which penal section applies to the facts alleged. Hence, the mention of a section cannot be a substitute for any ingredient of the offence. In the instant case, the fact that the bags were meant for sale or trade is one of the elements of the offence under Section 33 of the 1959 Act or Section 29 of the 1947 Act; and the absence of this fact from the complaint is vital.
6. In the absence of the aforesaid allegation, therefore, it is not possible to hold that any of the bags in question had been weighed or the weights thereon had been marked for the purpose of any trade, as defined in the Act of 1959, or that any of the bags in question was kept in the godown for sale on the day the Inspector raided the godown. Hence, neither Section 33 of the 1959 Act nor Section 29 of the 1947 Act would be attracted; and Mr. A. N. Sahai's contention that the prosecution is misconceived in law must prevail.
7. The argument of Mr. Sahai that the prosecution is misconceived in tact is based on two grounds. The first ground is that according to Section 29 of the 1947 Act the person who sells the article is liable to punishment, while under Section 33 of the 1959 Act the person who weighs the article and marks the weight on the bag is liable to punishment, but the Secretary of Belsand Sugar Company Ltd., or the Chief Chemist or the Manufacturing Chemist, who have been made accused in the case, could not be the persons who would sell and deliver the article to the purchaser or weigh and mark the weight on the bag. A supplementary affidavit was filed on behalf of the petitioners in this Court on the 28th August, 1963, that these three officers had nothing to do with the weighing or marking the weight on the articles or selling any bag of sugar and delivering the same to the purchaser. On behalf of the State, no counter-affidavit was filed denying this assertion. The three officers may escape prosecution on this ground; but the Belsand Sugar Company Ltd., is also one of the accused, and it has to be decided ultimately by the trying Magistrate which servant of the Company will be liable for any offence committed by the Company. It is, however, not necessary to decide this question, in view of the earlier finding that the prosecution is misconceived in law.
8. The second ground is that under Section 17(5) of the 1959 Act the Inspector of Weights and Measures was bound to break open the container and verify the weight of the sugar contained therein. What the Inspector did in the instant case was that he placed one empty bag along with the weights in order to offset against the weight of the bag containing the sugar. Mr. Sahai submitted that this method was in contravention of Section 17(5) and that we do not know what the weight of the empty bag put by him along with the weights on the scale. This argument requires investigation into facts by the Magistrate, and, therefore, it is not possible to say at this stage that the prosecution was misconceived in fact.
9. In view of the finding, however, that the prosecution is misconceived in law, the application must be allowed; the prosecution is accordingly quashed.
S.P. Singh, J.
10. I agree to the order pro posed.