Bombay High Court
Raymond Woollen Mills Ltd. And Anr. vs The State Of Maharashtra And Ors. on 2 December, 1996
Equivalent citations: 1997(3)BOMCR107
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT V.P. Tipnis, J.
1. The petitioner is a company incorporated under the provisions of the Indian Companies Act and has a division called J.K. Engineer's files having its plant situated at M.I.D.C. Industrial area Mirjole District, Ratnagiri. The said division is engaged in manufacture, production, sale and export of engineer's steel files, rasps and file making machinery.
2. It appears that on 26th March 1985 the Inspector of Weights and Measures came to the plant and seized and detained one salter machine and two Avery machines on the ground that they were unreverified. By letter dated 29th March 1985 addressed to the Inspector of Weights and Measures by the Works Manager of the J.K. Engineers Files division the Inspector was informed that the petitioners had purchased two new Avery counter scale of 25 k.g. capacity and they are not aware of the procedure that the scales are to be stamped and approved by the department that this is a technical fault on their part and the same may be condoned. It was further mentioned that salter weighing machine of 500 k.g. capacity was stamped on 29th December, 1983. By oversight the stamping was not done before 28th December 1984. It was therefore requested to have sympathetic consideration and settle the matter departmentally. Identical letter appears to have been addressed to the Assistant Commissioner and Deputy Controller of Weights and Measures on 2nd April 1985.
3. Upon this representation the Assistant Commissioner and Deputy Controller of Weights and Measures Compounded the offence under section 38-A(1) of the Bombay Weights and Measures (Enforcement) Act 1958, hereinafter referred to as the said Act, subject to the payment of Rs. 2000/-.
4. It appears that thereafter the petitioners preferred an appeal under section 20 of the said Act to the Controller of Weights and Measures Maharashtra State. In the appeal after stating the facts it was mentioned that the Company has purchased 2 Nos. New Avery counter scale of 25 k.g. capacity and was duly stamped and were to be restamped in December 1984 and those machines in fact kept intact in the stores. These two machines were neither used since purchase nor are they in use. It is categorically stated that the company sells its products i.e. files in terms of Nos. and not on weight and hence the two machines and the above two weighing machines were not used for carrying out any business. It was mentioned that the company is not aware of the procedure and these two machines though not brought under use are to be stamped and approved. However it is further stated now these machines will be stamped. Ultimately it is prayed that considering the facts especially unawareness of the stamping procedure the case may be reconsidered and the order be revised. The appellate authority by its order dated 11th July, 1986 informed the petitioners that the appeal has been rejected by order dated 4th July, 1986. The petitioners complained that the copy of the reasoned order was not supplied to them any time. Smt. Dighe learned Assistant Government Pleader appearing for the State has made the aforesaid copy of the reasoned order available to us a zerox copy of which is taken on record and marked as Exhibit' X'. The said order shows that the letter from the appellant company addressed to the Assistant Commissioner agreeing to pay the nominal fine is on record which definitely means that the appellant company had agreed for composition of the offence as stipulated under section 38-A of the said Act. It was further held that the plea that the company was not aware of the procedure and the contention that the machines were not in use cannot at all be considered as holding water. It appears that the company preferred further appeal to the State Government which was rejected by order dated 2-9-1986 holding that no appeal lies to the State Government under the provisions of the said Act. Being aggrieved by the said decision of the compounding and levy of fine of Rs. 2000/- and the decision rejecting the appeal against the aforesaid order, the petitioners have filed the present petition.
5. In the petition it is categorically averred that the petitioners said division situated at Ratnagiri is exclusively engaged in manufacture of engineers files and rasps. The said products are packed in card boards and in wooden cases in quantities of 5 and 10 units or half dozen or one dozen etc. It is further asserted that the said products are never sold or offered for sale by weight or measures and are only sold/offered for sale by units/numbers i.e. number of units/number of files. It is further averred in the petition that the aforesaid weighing machines are only utilized by the division in the process of manufacture and were not used for the purpose of determining or declaring the weight of their finished products for the purpose of sale thereof. It is contended that therefore in view of the provisions of the said Act and definition under section 2(ii) and section 11 thereof, the said weighing machines do not attract the requirement of verification and stamping under the provisions of the said Act. It is also contended that in fact on 26th December, 1984 a notice was received from respondent No. 5 Inspector to keep the weighing machines ready for his inspection and verification on 28th December, 1984. However, the respondent No. 5 never came to the petitioners division on 28th December, 1984. It is asserted that the weighing machines were not used by the petitioners division in any transactions for trade or commerce and as such it was required to be stamped or verified under the provisions of the said Act.
6. We have heard Shri Shroff learned Counsel for the petitioners and Smt. Dighe Assistant Government Pleader, for the respondent-State Shri Shroff contended that looking to the provisions of section 2(ii) in the facts and circumstances of the case, it cannot be said that the weights or measures or weighing instruments were used in the transaction for trade or commerce and as such the impugned orders are clearly illegal. Smt. Dighe on the other hand contended that the petitioners never took up such a stand before the lower authority and in fact sought composition themselves. As such no fault could be found with the orders. She secondly contended that in view of the explanation I to section 25 of the said Act departmental authorities were entitled to presume, until contrary is proved, that the weighing machines were in possession of the company for use in the transaction for trade and commerce.
7. We must immediately make a mention to the fact that though the writ petition has been pending in this Court since 1986 and though Rule and interim reliefs were granted as early as on 24-11-1986 in this long 10 years the respondent-State or the concerned authorities have not cared to file an affidavit in reply to the petition. Undoubtedly Smt. Dighe is right when she says that in fact petitioners sought orders of composition and therefore no fault could be found with the orders of the authorities. However, we cannot ignore the fact that ultimately the proceedings have resulted in levy of penalty of Rs. 2000/-. We are not going into the question as to whether J.K. Engineers Files Division could be a trader at all which has been vehemently denied by Shri Shroff says that division cannot be taken as a trader for the purpose of explanation I of section 25 of the said Act. However, on the basis of facts and circumstances brought on record even if it is presumed that the J.K. Engineers Files division is a trader and therefore, the department can legitimately presume, until contrary is proved, that the weighing instruments were in its possession for use in transaction for trade or commerce, such a presumption is obviously rebuttable. It requires to be noticed that under section 2(ii) use in transaction for trade or commerce means use for the purpose of determining or declaring the quantity of anything in terms of measurement of length, area, volume, capacity or weight in or in connection with any contract, whether by way of sale, purchase, exchange or otherwise. As stated earlier petitioners have categorically stated that they manufacture engineers files, such product is packed and dispatched in card board box and in wooden case in quantities of 5 and 10 or half a dozen or one dozen etc. said product is only sold or offered for sale by units/numbers and weighing machines in question are only utilized by the said division in the process of manufacture which was explained by Shri Shroff as for example measuring raw material supplied to a particular department. It is unfortunate that the respondents have not thought it fit to file any affidavit in reply controverting these assertions. In view of the uncontroverted assertions we have got to hold that on the basis of the facts of the case petitioners have proved contrary to the presumption to be raised in explanation I to section 25 of the said Act. It is solely on this ground that we are allowing this petition. We make it clear that if any weighing or measuring instruments are being used in the transaction for trade or commerce as defined under the Act. The respondents will be at liberty to proceed against the petitioners in accordance with law. Our aforesaid finding deals specifically with the facts and circumstances of this case as have been specifically referred to herein above.
8. In the result petition succeeds and the impugned orders dated 19th July 1985 of composition and payment of Rs. 2000/- by the petitioners as also order dated 4th July, 1986 passed by the Controller of Weights and Measures Maharashtra State passed in appeal are hereby quashed and set aside. Rule is made absolute.
9. Normally when the petitioners succeed petitioners should get cost from the respondents. However, in this case it is absolutely clear that the petitioners through their competent officers themselves have sought composition and penalty and now though on the basis of the factual averments and legal position we have set aside the order of composition and penalty, we are of the opinion that the petitioners themselves brought upon this situation and also gave rise to unnecessary litigation. Under the circumstances though petition succeeds we direct that the petitioners shall pay cost of Rs. 2000/- to the State.