Judgement

A. GOPAL REDDY, J. :- This matter has come up before this Court on a reference by a learned single Judge of this Court to consider the question :

"Whether the date of filing of the complaint or the date of the Court taking cognizance of the offence is relevant for the purpose of S. 468, Cr. P.C.?"

2. The question of law involved in this case, though short one, has been the subject of conflicting decisions of the Supreme Court in Krishna Pillay v. T. A. Rajendran, 1990 (Supp) SCC 121 and Bharat Damodar Kale v. State of Andhra Pradesh, 2004 (1) ALD (Crl) 27 (SC) : (2003 Cri LJ 4543).

3. The learned single Judge expressed his inability to agree with the view taken by this Court in Crl. P. No. 3572/2003 wherein it was held that the date of taking cognizance of the offence by the Magistrate is relevant and not the date of filing of the complaint before the Court for the purpose of S. 468, Cr. P.C. Hence made the reference.

4. In order to appreciate the question arising for determination, facts-in-brief may be stated thus : State through Inspector, Legal Metrology, Mahabubabad filed a complaint under S. 72 of the Standards of Weights and Measures Act, 1976 (for short "the Act") against the petitioner-manufacturer and another retailer alleging contravention of S. 39 punishable under S. 63 of the Act r/w Rule 6(i)(c) r/w III Schedule of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (for short "the rules") and contravention of Rule 23(i) punishable under S. 39(2) of the Rules respectively. The above complaint was presented on 21-11-2002 and the same was alleged to be taken cognizance on 10-12-2002 by the Magistrate in STC No. 489/2002 and issued summons to the accused. On issuance of summons, the petitioner A-1 moved this Court under S. 482, Cr. P.C., for quashing the proceedings on the ground that the punishment prescribed for the contravention of S. 39 of the Act is fine of Rs. 5000/- only and cognizance of the offence has to be taken before the expiry of six months as provided under S. 468, Cr. P.C., the Court has no jurisdiction to take cognizance in view of the bar contained under S. 468, Cr. P.C., therefore continuing proceedings is an abuse of process and they are liable to be quashed.

5. Sri E. Manohar, learned senior counsel appearing for the petitioner contends that once punishment prescribed for the offence under S. 63 of the Act is a fine of Rs. 5000/-, cognizance, if any, has to be taken by the Court before expiry of six months period as provided under S. 468, Cr. P.C., from the date of inspection made on 22-5-2002, therefore, taking cognizance on 10-12-2002 is wholly illegal and without jurisdiction and the same has to be quashed. To buttress the said submission reliance has been placed on the following judgments :

1. Krishna Pillai (supra)

2. Kimberly Clark Lever Limited v. State through Inspector, Legal Metrology, Mahabubabad, judgment of this Court dt. 10-3-2006 in Crl. P. No. 3572/2003 (reported in 2006 Cri LJ 2438).

6. Before we proceed to answer the reference, it is appropriate to notice the relevant statutory provisions under the Act and S. 468 of the Cr. P.C.

39. Quantities and origin of commodities in packaged form to be declared

(1) No person shall-

(a) make, manufacture, pack, sell, or cause to be packed or sold; or

(b) distribute, deliver, or cause to be distributed or delivered; or

(c) offer, expose or possess for sale, any commodity in packaged form to which this part applies unless such package bears thereon or on label securely attached thereto a definite, plain and conspicuous declaration, made in the prescribed manner, of-

(i) the identity of the commodity in the package;

(ii) the net quantity, in terms of the standard unit of weight or measure, of the commodity in the package;

(iii) where the commodity is packaged or sold by number, the accurate number of the commodity contained in the package;

(iv) the unit sale price of the commodity in the package; and

(v) the sale price of the pack