Madhya Pradesh High Court
M/S Kamal Agencies vs The State Of Madhya Pradesh on 11 April, 2019
M.Cr.C. No.8670/2011 1
(M/s Kamal Agencies Vs. State of M.P.)
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
S. B.: Hon'ble Ms. Justice Vandana Kasrekar
M.Cr.C. No.8670/2011
M/s Kamal Agencies
Vs.
State of M.P.
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Shri S.C. Bagadiya, learned senior counsel assisted by Shri P.R.
Bhatnagar, learned counsel for the petitioner.
Shri Vikas Yadav, learned Government Advocate for the
respondent/State.
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ORDER
(Passed on this 11th day of April, 2019) The petitioner has filed the present petition under Section 482 of Cr.P.C. for quashment of criminal case No.773/2005 as well as order dated 04/02/2011 passed by JMFC, Mhow, by which the application filed by the petitioner under Section 468 of Cr.P.C. was dismissed.
2. The petitioner is Proprietor of M/s Kamal Agencies and M/s Kamal Agencies is working as the distributor of Hindustan Uniliver Limited). The respondent visited the premises of co- accused Narendra Kirana Stores on 01/05/2004 and seized the impugned packages of Lifebuoy Soaps of 100 grams on which the packed was mentioned as "05/04". It was alleged that as the Soaps on which the packed is mentioned as "05/04" is kept for sale on 01/05/2004, thus, it violates the Rule 4, 6, 23(1) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (which shall be referred hereinafter as "Rules, 1977"). Accordingly, on 18/10/2005 criminal case was filed before the learned JMFC at Mhow under Section 39 M.Cr.C. No.8670/2011 2 (M/s Kamal Agencies Vs. State of M.P.) and 63 of the Standards of Weights and Measures Act, 1976 (which shall be referred hereinafter as "Act, 1976").
3. On the same date i.e. 18/10/2005, the learned JMFC took cognizance of the said complaint and issued process against all the accused. The petitioner has challenged the aforesaid order dated 18/10/2005 by way of an application under Section 482 of Cr.P.C. before this Court and vide dated 16/08/2007 passed in M.Cr.C. No.4552/2007 by this Court disposed of the petition observing that applicant should raise the question of limitation before the trial Court and the trial Court should decide the same after hearing both the parties. After obtaining the certified copy of the said order, an application under Section 468 of Cr.P.C. was filed before the trial Court by the petitioner on 26/09/2007. After hearing the parties, learned trial Court has rejected the application filed by the petitioner. Being aggrieved by the said order, the petitioner has filed the present petition before this Court.
4. Learned senior counsel appearing on behalf of the petitioner argued that the order dated 04/02/2011 is illegal and the complaint is barred by limitation. Learned senior counsel by placing reliance on Section 63 of the Act, 1976 has submitted that the offence under the Act is punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine. He further submits that as per Section 468 of Cr.P.C. if the offence is punishable with fine only then the period of limitation is 6 months for filing the complaint.
5. In the present case, learned senior counsel vehemently M.Cr.C. No.8670/2011 3 (M/s Kamal Agencies Vs. State of M.P.) argued that seizure was made on 01/05/2004 and complaint was filed on 18/10/2005 i.e. after a period of six months, therefore, the same is barred by limitation and deserves to be dismissed.
6. He further submits that as per Rule 6 (1)(B) of the Rules, 1977, which clearly provides that any packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity. On the basis of said Rule, he submits that petitioner is permitted to pack the material in the next month.
7. He further relied upon the judgment delivered by this Court in the matter of Omprakash vs. State of M.P. 1979 MPWN 157 and the judgment passed by this Court in the matter of Shri Krishna Sanghi and others vs. State of M.P. 1976 MPLJ 559.
8. In light of the aforesaid, he prays that the petition filed by the petitioner deserves to be allowed.
9. Learned Government Advocate for the respondents/State submits that the trial Court has not committed any error in passing the impugned order. He submits that as per Section 469 of Cr.P.C. in computing the said period, the day from which such period is to be computed shall be excluded. He submitted that in the present case, notices of the complaint were issued, however, as the addresses of respondents were not within the knowledge, therefore, the delay was caused in filing the complaint and thus, the trial Court has rightly rejected the objections submitted by the petitioner.
10. Heard learned counsel for the parties and perused the M.Cr.C. No.8670/2011 4 (M/s Kamal Agencies Vs. State of M.P.) record.
11. In the present case, an complaint has been made against the petitioner for committing offence punishable under Section 39 and 63 of the Act, 1976 for violating the Rules, 1977 on 10/10/2005. On the same day, the cognizance was taken by the learned Magistrate against the present petitioner and after receiving summons, the petitioner filed an application under Section 482 of Cr.P.C. for quashment of the said complaint before this Court bearing M.Cr.C. No.4552/2007. The said application was disposed of by this Court vide order dated 16/08/2007 and while disposing off the said application this Court has granted liberty to the petitioner to file an application before the trial Court. Accordingly, the application has been filed by the petitioner on 26/09/2007 under Section 468 of Cr.P.C., which was dismissed vide order dated 04/02/2011. Being aggrieved by that order, the present petition has been filed.
12. Learned senior counsel has argued that complaint which is filed by the complainant itself is barred by limitation.
13. Section 63 of the Act provides that if any offence is committed under this Act, it shall be punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term, which may be extend to five years and also with fine.
14. The limitation of filing of the complaint has been given under Section 468 of the Cr.P.C. As per sub-section 2 (a) of the Section 468 of the Cr.P.C., the period of limitation shall be 6 months, if the offence is punishable with fine only.
15. Thus, in the present case, this Court is of the opinion that M.Cr.C. No.8670/2011 5 (M/s Kamal Agencies Vs. State of M.P.) the offence is punishable with fine only, therefore, the complaint has to be filed within a period of 6 months from the date of incident. In the present case, seizure was done on 01/05/2004 and complaint was filed on 18/10/2005 i.e. after the period of 6 months, therefore, prima facie the complaint is barred by limitation.
16. So far as Section 469 of Cr.P.C. is concerned, that cannot be applicable to the respondents as at the time when seizure was conducted, the respondent was within the knowledge of the said offence.
17. So far as merits of the case is concerned, Rule 6 (1)(B) Rules, 1977 provides that where any such packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity.
18. In the present case, in the packages of Lifebuoy Soaps of 100 grams date is mentioned as 05/04 and the same was used on 01/05/2004, thus, as per the rules no offence is made out against the petitioner.
19. This Court in the matter of Omprakash (Supra) has held that the offence under Section 406 of IPC is punishable upto three year's imprisonment. Consequently, the period of limitation of three years prescribed by Section 468 of Cr.P.C. will be clearly applicable. In this case, the police filed the report on 15/10/1976 on which date the learned Magistrate took cognizance of the offence allegedly committed by the applicant Omprakash. The cognizance of the offence was thus taken beyond the period of three years both from the date when the M.Cr.C. No.8670/2011 6 (M/s Kamal Agencies Vs. State of M.P.) offence was committed as also from the date when the prosecution knew about the commission of offence. Cognizance, thus taken after the expiry of three years was against the provisions of Section 468 readwith Section 469 of Cr.P.C.
20. In light of the aforesaid, keeping in view the peculiar facts and circumstances of the present case, the conscious of this Court alarming to allowing the present petition filed by the petitioner specially keeping in view the proviso's prescribed in the Sections. Accordingly, petition is allowed and the proceedings of criminal case No.773/2005 as well as order dated 04/02/2011 passed by JMFC, Mhow, by which the application filed by the petitioner under Section 468 of Cr.P.C. was dismissed are hereby quashed.
C.C. as per rules.
(Ms. Vandana Kasrekar) Judge Aiyer* Digitally signed by Jagdishan Aiyer Date: 2019.04.16 14:11:02 +05'30'