Karnataka High Court
Hindustan Pencils Pvt. Ltd vs The State Of Karnataka on 13 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.100585/2020
BETWEEN:
1. HINDUSTAN PENCILS PVT. LTD.,
510 HIMALAYA HOUSE,
79 PALTON ROAD,
MUMBAI-400001,
MAHARASHTRA STATE,
REP. BY HARENDRA BHAIDAS SANGHVI.
2. SMT.KIRTI BHAIDAS SANGHVI
AGE: 72 YEARS, OCC: BUSINESS,
510 HIMALAYA HOUSE,
79, PALTON ROAD,
MUMBAI-400001,
MAHARASHTRA STATE.
3. NATVARLAL HIRALAL PATEL
AGE: 72 YEARS, OCC: RETIRED,
510 HIMALAYA HOUSE,
79, PALTON ROAD,
MUMBAI-400001,
MAHARASHTRA STATE.
4. HARENDRA BHAIDAS SANGHVI
AGE: 68 YEARS, OCC: BUSINESS,
510 HIMALAYA HOUSE,
79, PALTON ROAD,
MUMBAI-400001,
MAHARASHTRA STATE.
2
ALL PETITIONERS ARE REP.BY
MANOJ MADHAV * DABKE
DEPUTY MANAGER-LEGAL
HINDUSTAN PENCILS PVT. LTD.
...PETITIONERS.
(BY SHRI MRUTYUNJAYA S. HALLIKERI, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
THROUGH THE INSPECTOR OF
LEGAL METROLOGY,
OFFICE OF THE INSPECTOR OF METROLOGY,
GOKAK SUB DIVISION,
GOKAK P & T & BANK BUILDING,
APMC YARD, GOKAK-591307,
REP.BY SPP,
HIGH COURT OF KARNATAKA,
DHARWAD.
...RESPONDENT.
(BY SHRI PRAVEEN K. UPPAR, HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
PRIVATE COMPLAINT DATED 16.01.2020 FILED BY THE
COMPLAINTNANT IN P.C.NO.1201688/19-20 AND REGISTRATION OF
CRIMINAL CASE IN C.C.NO.60/2020 BY THE COURT OF II ADDL. JMFC
COURT, GOKAK, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
31 & 36 OF THE LEGAL METROLOGY ACT, 2009 AND ALL FURTHER
PROCEEDINGS IN C.C.NO.60/2020 ON THE FILE OF COURT OF II
ADDL. JMFC, GOKAK, SO FAR AS PETITIONERS ARE CONCERNED,
ETC.,.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
* Corrected vide court order
dated 17-02-2022
Sd/-
MNPJ, Judge
3
ORDER
The petitioners are before this Court calling in question the proceedings in C.C.No.60/2020, pending on the file of II Addl. Civil Judge and JMFC, Gokak, registered by the respondent Inspector, Department of Legal Metrology, Gokak.
2. Heard Shri Mrutyunjay S. Hallikeri, learned counsel appearing for the petitioners and Shri Praveen K. Uppar, the learned Government Pleader appearing for the respondent- State.
3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows:
The 1st petitioner is a company registered under the provisions of the Companies Act, 1956. A private complaint is registered against the petitioners on 17.1.2020 invoking section 200 of the Code of Criminal Procedure, 1973. The allegation is that on 26.12.2019 the shop of one of the retailers of the 1st petitioner was searched, and 5 pre-packed packages of * Apsara Regal Gold Extra Dark Pencils packages were found and on those pencils, as is required in the Legal Metrology (Packaged * Corrected vide court order dated 17-2-2022 Sd/-
MNPJ, Judge 4 Commodity) Rules 2011 were not ascribed. The complaint was registered invoking section 200 of Cr.P.C. for violation of section 31 to 36 of the Leal Metrology Act, 2009.
4. It transpires that on the aforesaid inspection a notice was issued on 26.12.2019 indicating the violations found during the search and also indicated the offences punishable under Sections 36(1) of Legal Metrology Act. Immediately on receipt of the notice, the petitioners submitted a reply contending that they have always adhered to law and have not violated any provisions of the Act. On 17.1.2020 notwithstanding the reply given by the petitioners, a criminal case is registered in P.C.R.No.1201688/2019-20 and after taking cognizance the case is now numbered as C.C.No.60/2020 for the offences punishable under Sections 31 and 36 of the Legal Metrology Act, 2009. It is this action that is called in question.
5. The learned counsel appearing for the petitioners contends that the petitioners had replied immediately on receipt of notice on 7.1.2020. Without passing any order on the reply given by the petitioners, private complaint is straight away 5 registered by the respondent which takes away the right of the petitioners to file an appeal in terms of Section 50 of the Act.
6. The aforenarrated facts are not in dispute. The allegation against the petitioners is violation of section 31 and 36 of the Legal Metrology Act, 2009. Against the said allegation of violation, the petitioners have two remedies under the statute. One to compound the offences in terms of section 48 and to file appeal once the order is passed on the reply given by the petitioners.
7. Section 48(1) of the Act reads as follows:
48. Compounding of offences.
(1) Any offence punishable under section 25, sections 27 to 39, sections 45 to 47, or any rule made under sub-section (3) of section 52 may, either before or after the institution of the prosecution, be compounded, on payment for credit to the Government of such sum as may be prescribed.
8. Section 48(1) of the Act permits the offenders whoever is alleged of the offences punishable under Sections 25, 27 to 39 of the Act to compound the said offence. Admittedly the offence alleged is under section 31 and 36 of the 6 Act. Therefore the first remedy available is to compound the offence. The next remedy under the statute is to file an appeal once an order is passed on the reply.
9. Section 50(1) reads as follows:
50. Appeals (1) Subject to the provisions of sub-
section (2), an appeal shall lie,--
(a) from every decision or order under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-
section (3) of section 52 by the legal metrology officer appointed under section 13, to the Director;
(b) from every decision or order made by the Director of Legal Metrology under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-
section (3) of section 52, to the Central Government or any officer specially authorised in this behalf by that Government;
(c) from every decision given by the Controller of Legal Metrology under delegated powers of Director Legal Metrology to the Central Government;
(d) from every decision given or order made under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any rule made under sub-section (3) of section 53 by any legal metrology officer appointed under section 14, to the Controller; and 7
(e) from every decision given or order made by the Controller under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any rule made under sub-section (3) of section 53 not being an order made in appeal under clause (d), to the State Government or any officer specially authorised in this behalf by that Government.
10. In terms of sub clause (1) of section 50, remedy of appeal is also available to an offender from any decision taken on the reply for the offences punishable under Sections 27 to 39 of the Act. As stated hereinabove, the alleged offence is under section 31 and 36 of the Act and the aforesaid remedies are available to the petitioners. The respondent without passing an order straight away registers a complaint setting the criminal law into motion. By the act of the respondent in registering the criminal case without passing an order under the provisions of law, aforequoted i.e., section 48 and 50 are rendered nugatory. The right of the petitioners are taken away by such act of the respondent. This Court in the case of Ms.Shalini K. vs. The Inspector of Legal Metrology and another, in W.P.No.51116/2017 (GM-RES) and connected cases, while considering an identical provision has held as follows: 8
"Compounding of offences is a remedy that is available once offences punishable under Sections 27 to 39 of the Act are alleged against any accused. A remedy of appeal is also available to an accused for any order passed under Sections 15 to 20, 22, 25, 27 to 39 and 41 of the Act or any Rule made thereunder. Therefore, the dual remedy that is available once an offence is alleged is that, one can compound the offence and the other, to file an appeal against an order that would be passed. The petitioners in these cases were in fact summoned to compound the offences though no order was passed either accepting the reply or rejecting it. Therefore, in the light of the remedy of appeal being available in terms of Section 50 of the Act, once offences are alleged against the petitioner under Sections 28, 29 and 31 of the Act, it was obligatory on the part of the respondents to have passed an order, for the petitioners to avail the remedy of filing an appeal under Section 50 of the Act, as the offences alleged are of offences against which an appeal under Section 50 of the Act would encompass. By not passing an order on the reply given to the notice/show cause notice by the petitioners, it has rendered the remedy of appeal under Section 50 of the Act as illusory or superfluous. Silence on the part of the respondents cannot be construed to be an order that can be passed, which would become applicable under Section 50 of the Act. The order must be in writing for the petitioners to avail of the remedy of appeal under Section 50 of the Act. It is a liberty granted to the petitioners and the like under the Act; availing of it or not, is the choice of the petitioners but passing an order either accepting the reply or rejecting it, is an obligation on the part of the State performing its functions under the Act. It is only after an order being passed by the Appellate Authority either rejecting or allowing the appeal, registration of a criminal case can take place.9
Admittedly, no order considering the reply of the petitioners is passed in these cases and as such, the petitions deserve to succeed in part and the matter has to be remitted to the hands of the respondents to act in accordance with law."
11. In the light of the law laid down by this Court in the aforesaid case, as also in several cases of this Court, I pass the following:
ORDER
i) The petition is allowed.
ii) The proceedings in C.C.No.60/2020, pending on the file of II Addl. Civil Judge and JMFC, Gokak, registered by the respondent Inspector, Department of Legal Metrology, Gokak, stand quashed.
iii) Liberty is reserved to the respondent to initiate such proceedings, if needed, in accordance with law after passing an order on the reply given by the petitioners.
SD JUDGE Mrk/-