Jharkhand High Court
Bharat Petroleum Corporation Ltd. & ... vs State Of Jharkhand & Ors. on 17 August, 2013
Author: Prashant Kumar
Bench: Prashant Kumar
.
WRIT PETITION (Cr.) No. 318 of 2006
1. Bharat Petroleum Corporation Ltd.
2.Sri A.C.Sen, General Manager
3. Sri Swapan Kumar Mondal,Asstt.Manager.. .. Petitioners.
Versus
1. TheState of Jharkhand
2. The State of Bihar
3. Sri Santosh Kumar Prasad ......Respondents
-----
For the Petitioner : Mr. Delip Jerath
For the State : Mr. R.P.Singh, JC to G.P.II.
-----
PRESENT : THE HON'BLE MR. JUSTICE PRASHANT KUMAR
-----
Reserved on : 12.07.2013 Delivered on : 17/08/2013
Prashant Kumar,J. This application has been filed for quashing the entire
criminal proceeding in connection with Complaint Case no. WM 214/05
including the order dated 05.08.2000 whereby and where under learned
court below took cognizance against petitioner nos. 2 and 3, namely,Sri
A.C.Sen, and Sri Swapan Kumar Mondal, respectively under sections
45 and 47 of the Standards of Weights and Measurement
(Enforcement) Act, 1985( herein after referred as the Act of 1985)
2. The facts of the case in brief is that the petitioner no.1 is an
undertaking of Govt. of India, engaged in refining and distribution of
petroleum products all over the country and petitioner no.2 and 3
namely, A.C.Sen and Swapan Kumar Mondal respectively, are senior
officials of petitioner no.1. It is further stated that petitioners received a
letter dated 23.12.1999 under the signature of Inspector (Weights and
Measurement) asking the petitioners to produce blue prints, structural
drawings,fabrications drawings etc. of the storage tank situated at
Dhanbad depot of petitioner no.1, because the said storage tanks have
not been calibrated. It is stated that petitioners filed Annexure-4 and
sent their reply(Annexure-4) to the aforesaid letter, wherein they stated
that storage tanks at their Dhanbad Depot were not used for the sale of
its product to the customers or consumers, as such storage tanks
cannot be treated as an instrument of measurement. It is further stated
that petitioners are selling and supplying the petroleum products
2
through tank lorries. It is further stated that the petroleum products filled
in tank lorries are measured by calibrated Dip-Rods and the same are
verified and stamped by Metrology Department. It is stated that again
Controller, Weights and Measurement Department, Bihar Patna sent a
letter to the petitioners that as per Section 24(1) of the Act, of 1985, it
is mandatory for the petitioner corporation to get the storage tanks
duly verified by the respondents, otherwise petitioners will be
prosecuted. Again petitioners wrote a letter to the respondents that
storage tanks in their depot were used as storage vessel for the
products received from the refineries etc. and the mode of delivery of
petroleum products to the ultimate consumers or retail outlets is
through tank lorries, which kept calibrated Dip Rod duly verified and
stamped by the Weights and Measurement Department.. Accordingly,
it is stated that storage tanks are not an instrument of measurement,
therefore, do not come within the purview of Section 24(1) of the Act of
1985. It is stated that inspite of aforesaid reply, respondents asked the
petitioners to deposit Rs. 44,520/- through Bank Draft in favour of
Controller of Legal Metrology, Bihar Patna, for the purpose of
calibration of storage tanks situated at its Dhanbad Depot. It is then
stated that when petitioners did not deposit aforesaid amount,
respondents filed a complaint before the Chief Judicial Magistrate ,
Patna vide Complaint Case no. 1417(M)/2000 on 30.8.2000 alleging
therein that inspite of repeated direction, reminder and verification
reports, petitioners were using the uncalibrated,unverified and
unstamped storage tanks, which is violative of Section 22 and 24 of the
Act of 1985 and therefore, they are liable to be punished under section
45 and 47 of the Act of 1985. It is stated that learned Chief Judicial
Magistrate, Patna vide his order dated 05.8.2000 took cognizance of
the offences under sections 45 and 47 of the Act of 1985 against the
petitioners. It is stated that after coming into force of Bihar
Reorganisation Act, aforesaid case transferred to the court of learned
Chief Judicial Magistrate, Dhanbad, which was renumbered as Case
no. WM 214/2005 and the same was transferred in the court of
Sri Shwyambhu, Judicial Magistrate, Ist class, Dhanbad, who vide
his order dated 24.11.2005 explained the substance of acquisition to
the petitioner nos. 2 and 3, to which they pleaded not guilty and prayed
3
that they may be discharged.
3. Petitioner challenged the entire criminal proceeding in
connection with Complaint Case no. WM 214/05 by filing the present
writ application.
4. Sri Delip Jerath, learned counsel appearing for the
petitioner submits that according to the definition of Weights and
Measuring instrument given under section 2(zc) of the Standards of
Weights and Measures Act, 1976 ( herein after referrred as the Act of
1976), storage tank is not an instrument of weight and measure,
therefore, storage tank is not required to be calibrated and stamped by
the Metrology Department under sections 22 and 24(1) of the Act of
1985. He further submits that storage tanks are not used for any
commercial purposes rather they are used for limited purpose i.e.
storage of petroleum products received from the refineries etc. He
further submitted that from the storage tank, the petroleum products
supplied to various retail dealers through tank lorries, which kept
calibrated Dip-Rod for measurement of petroleum products supplied to
the retailers. Sri Jerath submits that calibrated Dip-Rod kept in the tank
lorries are duly verified and stamped by competent authority of
Metrology Department as required under section 22 and 24(1) of the
Act of 1985. Thus, petitioners had not violated any provisions as
alleged in the complaint petition. Accordingly, Sri Jerath, submits that
no offence under sections 45 and 47 of the Act of 1985 is made out
against the petitioners.
5. On the other hand, learned counsel appearing for the State
submits that the Division Bench of Patna High Court in a group of
cases, filed before it, had held vide its judgment dated 04.8.1993 that
storage tank is a measuring instrument within the meaning of the Act of
1976 and the Act of 1985,thus, storage tanks of the petitioners
required to be calibrated, verified and stamped by the Weights and
Measurement Department. He further submits that since petitioner no.1
inspite of notice given to it had not get its storage tank calibrated,
verified and stamped by the Weights and Measurement Department
therefore petitioner No.1 and its officers ( petitioner nos. 2 and 3) are
liable to be punished under section 45 and 47 of the Act of 1985.
Accordingly, he submits that present application is liable to be
4
dismissed.
6. The only question arose in this case for determination
is as to whether storage tank of the petitioners situated at Dhanbad
Depot are an instrument of measurement? The weighing and
measuring instrument has been defined under section 2(zc) of the Act
of 1976. Section 2(zc) runs as follows :
"weighing or measuring instrument" means any
object, instrument, apparatus or device, or any
combination thereof, which is, or is intended to
be, used, exclusively or additionally, for the
purpose of making any weighment or
measurement, and includes appliance,
accessory or part associated with any such
object, instrument, apparatus or device."
7. From bare perusal of aforesaid definition, it is clear that
any object or instrument or apparatus or device or any combination of
the same, if used or intended to be used for the purpose of weighment
and/or measurement, such object , instrument, apparatus or device will
be treated as weighing or measuring instrument. Section 22 and 24(1)
of the Act of 1985 runs as follows :
22. "Prohibition of sale or use of unstamped
weights or measures-No weight or measure
shall be sold, or offered ,or exposed or
possessed for sale or used or kept for use in
any transaction or for industrial production or for
protection unless it has been verified and
stamped.
Provided that nothing in this section shall
apply to any weight or measure which has been
initially verified and stamped with a special seal
referred to in sub-section(3) of Section 41 of the
Standards Act."
24(1) "Verification and stamping of weights
or measures-(1) Every person having any
weight or measure in his possession, custody
or control in circumstances indicating that such
weight or measures is being, or is intended or
likely to be used by him in any transaction or for
industrial production or for protection, shall,
before putting such weight or measure into
such use, have such weight or measure verified
at such place and during such hours as the
Controller may, by general or special order,
specify in this behalf (hereinafter referred to as
the specified place or specified time, on
payment of such fees as may be prescribed."
5
8. Thus, section 22 prohibits sale or used of unstamped
weights or measures, whereas Section 24(1) requires that every weight
and measuring instrument found in the custody and control of a person
and it appears that he is using and/or intending to use the same as
weight and measure in any transaction or for industrial production or for
protection, then it is mandatory for him to get the said instrument
verified by the controller on payment of prescribed fee.
9. Petitioners in their writ application had categorically stated
that storage tank situated at their Dhanbad depot is not used for any
commercial purpose. They used the same for storage of petroleum
products received from refineries. Petitioners have made following
averments at paragraph nos. 20 and 21 of their writ application,
which run as follows :
"20. That the petitioners humbly state that
there is no question of storage tanks to be
marked,calibrated and stamped by the Legal
Metrology Department and as a matter of fact
the storage tanks are used internally by the
petitioners' company for its own use. These
storage tanks thus under no stretch of
imagination can be termed a measuring
device of oil by the Company and no business
relationship emerges at that juncture."
"21. That the petitioners humbly state and
reiterate that the storage tanks are not for any
commercial purpose but only for a limited
purpose,i.e., to have a storage for proper
filling of tank lorries and a device to avoid fire
hazards and to store the Petroleum products
safely. The product filled in the tank lorries
are measured by calibrated 'Dip Rods' duly
marked and stamped by the Legal Metrology
Department for sale purpose at the respective
retail outlet.
These tank lorries which are filled with
petroleum products are measured by the
aforesaid duly calibrated 'Dip Rods' at the
departure stage and also at the delivery point,
i.e. the retail outlet. Thus, the storage tanks
cannot be said or claimed to be an instrument
used for measurement."
10. Thus, according to the petitioners, they are not doing any
transaction from its storage tank, rather they are selling and/or
6
supplying petroleum products to the retailers and/or consumers
through tank lorries, which kept calibrated Dip-Rod. It is stated that said
Dip-Rod are duly calibrated, verified and stamped by the competent
authority of the Metrology Department. Aforesaid fact as stated in the
writ application has not been denied by the respondents in their counter
affidavit. Thus, if the storage tank is used only for the purpose of
storage of petroleum products, then the same cannot be treated as
weighing and measuring instrument as defined under section 2(zc) of
the Act, of 1976.
11. Judgement relied upon by the learned counsel for the
respondents ( C WJC No.2404 of 1981), had no application in the facts
of this case, because in that case, storage tanks apart from being used
for storage, also used for seeking information as to how much quantity
of articles stored therein. Paragraph no.10 of the judgment of the
Patna High Court in C.W.J.C. No. 2404 of 1981 alongwith analogous
cases runs as follows :
"From bare perusal of section 2(zc), referred
to above,it would appear that if an object is
used not exclusively for the purpose of any
measurement but is used mainly for some
purpose other than measurement and in
addition to that it is intended to be used for
measurement, the same will be treated to be
a measuring instrument within the meaning of
the Act. In the present case, storage tank or
vats are primarily used for the purpose of
storage but, apart from that, the same is used
also for seeking information as to how much
quantity of articles has been stored therein."
( emphasis added )
12. In the aforesaid decision, their lordships held that as per
Section 2(zc) of the Act of 1976 , if an object is not used exclusively for
the purpose of measurement, but used mainly for the purpose other
than measurement and in addition to that is intended to be used for
the purpose of measurement, then same will be treated as measuring
instrument.
13. In the instant case, as noticed above, petitioners
categorically stated that they are using storage tanks at Dhanbad
Depot only for the purpose of storage of petroleum products received
from the refineries. They are not using the same as a measuring
instrument. This fact has not been denied by the respondents in their
7
counter affidavit. Thus, there is nothing to show that petitioners had
intention to use the storage tanks situated at their Dhanbad Depot for
measuring the quantity of petroleum products kept in it. Under the said
circumstance, I find that aforesaid judgment of Division Bench of
Patna High Court is not applicable to this case, as the facts of this
case is different from the facts of aforesaid cases.
14. As I have come to the conclusion that storage tank of the
petitioners situated at Dhanbad Depot is not a weighing and measuring
instrument, as defined under section 2(zc) of the Act of 1976, I am of
the view that petitioners are not required to get the aforesaid storage
tanks calibrated, stamped and verified by the Weights and
Measurement Department under sections 22 and 24(1) of the Act of
1985. Thus, I find that petitioners had not violated the provisions of
Sections 22 and 24(1) of the Act of 1985. Accordingly, they are not
liable to be punished under section 45 and 47 of the Act, 1985.
15. Accordingly, order taking cognizance as also the entire
criminal proceeding launched against the petitioners in connection with
Complaint Case no. WM 214/05 are illegal and an abuse of the
process of the Court. Thus, the same cannot be sustained.
16. In view of the discussion made above, this writ application
is allowed and the entire criminal proceeding in connection with
Complaint Case no. WM 214/05 pending in the court of Shwyambhu,
Judicial Magistrate, Ist class, Dhanbad and the order dated
05.08.2000by which cognizance of offence under section 45 and 47 of the Act of 1985 taken against the petitioners are hereby quashed.
( Prashant Kumar,J.) IN THE HIGH COURT OF JHARKHAND,RANCHI THE 17 TH AUGUST, 2013 RAMAN/ A.F.R.