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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
THE STATE OF UTTAR PRADESH – APPELLANT(S)
VERSUS
AMAN MITTAL & ANR. – RESPONDENT(S)
CRIMINAL APPEAL NOS. 1328-1329 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NOS. 9981-9982 OF 2017) WITH CRIMINAL APPEAL NOS.1330-1331 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NOS. 1912-1913 OF 2018) CRIMINAL APPEAL NO. 1332 OF 2019 (ARISING OUT OF SLP (CRIMINAL) NO. 3321 OF 2018)
Decided On : 04-09-2019
(a) Code of Criminal Procedure, 1973 - Section 482 - High Court, under section 482, cannot interfere in the manner of investigation or change the investigating officer. (Para 13)
(b) Constitution of India - Article 136 - Dismissal of Special Leave Petition against order of High Court without assigning reason - No res judicata, no merger. (Para 24)
(c) Legal Metrology Act, 2009 - Section 51 - Excludes provisions of Indian Penal Code, 1860 and section 153 of Code of Criminal Procedure, 1973 insofar as such provisions relate to offences with regard to weight and measures only, to offences punishable under the Act - Hence, power of inspection and search under the act having been conferred on designated authorities, police cannot enter any place for the purpose of inspecting or searching for any weights or measures. (Para 31)
(d) Interpretation of statute - Legal Metrology Act, 2009 and Indian Penal Code, 1860 - Act is a special Act vis-à-vis IPC - Clear disharmony between the two statutes - Cannot be resolved by harmonious interpretation - Provisions of the act will prevail over that of the IPC. (Para 33)
(e) Legal Metrology Act, 2009 - Section 3 and 51- Provisions of IPC relating to offences with regard to weight and measure as contained in Chapter XIII of IPC will not apply to offences under the Act - No person can be charged for an offence relating to weight or measure falling under Chapter XIII of IPC in view of the provisions of the Act. (Para 34)
(f) Indian Penal Code, 1860 - Sections 34, 415, 467, 468, 471 and 120-B - The Legal Metrology Act, 2009 does not foresee any offence covered by these provisions of IPC and hence not made punishable under the Act - Therefore prosecution for such offences could be maintained. (Para 35)
Facts of the case:
An FIR for offences punishable under Sections 265, 267, 420, 34, 120-B of the Indian Penal Code, 1860 and Sections 3/7 of the Essential Commodities Act, 1955 in respect of short delivery of petrol and diesel by 200-220 ml. on each sale of 5 liters.
The Magistrate on an application made by the Investigating Officer allowed the judicial remand of accused and also permitted the investigation under Sections 467, 468, 471 IPC and Sections 12/30 of the Legal Metrology Act, 2009.
On the basis of investigations, the charge-sheet for the offences under Sections 265, 267, 420, 34, 120B IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468, 471 IPC and Sections 12/30 of the Weights and Measures Act, 1976 came to be filed before the competent court. The Magistrate did not take cognizance of offence under Sections 471 and 120B of IPC for want of evidence but the Magistrate has taken cognizance of an offence under Section 30 of the Act.
Thereafter two applications were filed under Sections 167(2) and 190(1) of the Code of Criminal Procedure, 1973 on the ground that the prosecution has no material making out a case of offences mentioned in the chargesheet, therefore, the cognizance may not be taken. The learned Magistrate rejected both the applications. It is thereafter the petition was filed under Section 482 of the Code before the High Court.
The High Court ordered that the trial court has not taken cognizance of offence under Sections 34, 120B, 471 of IPC or 26 of the Act. Therefore, there is no reason as to why the Court may not take into account such materials for the purposes of taking cognizance of the offences. The High Court held that Sections 467, 468, 471, 120-B and 34 of IPC stand clearly attracted.
The High Court directed the District Judge, Lucknow to ascertain the quantitative and qualitative figures of the residual stock lying in the underground tanks and allow the stock to be delivered to the oil company for custody after due calibration through the dispensing pumps installed and issued directions accordingly.
Finding of the Court:
Provisions of IPC relating to weights and measures are rendered inapplicable. These can be tried only under the LMA. Similarly section 153, CrPC also does not apply.
Result: Appeal partly allowed.
JUDGMENT
HEMANT GUPTA, J.
Crl. Appeal Nos. 1328-1329 of 2019 (@SLP (Criminal) Nos.9981-9982 of 2017) AND Crl. Appeal Nos. 1330-1331 of 2019 (@SLP (Criminal) Nos.1912-1913 of 2017)
1) Leave granted.
2) The order dated October 4, 2017 passed by the Lucknow Bench of the High Court of Judicature at Allahabad is the subject matter of challenge in these appeals.
3) An FIR No. 130 was lodged on April 28, 2017 with Police Station Cantt, Lucknow for the offences punishable under Sections 265, 267, 420, 34, 120-B of the Indian Penal Code, 1860 [IPC] and Sections 3/7 of the Essential Commodities Act, 1955 [Act, 1955] in respect of short delivery of petrol and diesel by 200-220 ml. on each sale of 5 liters.
4) On April 27, 2017, the Special Task Force [STF] of the State Police took up the investigation into the commission of offence viz. short delivery of petroleum products i.e. high-speed diesel and motor spirit at various retail outlets operating within the city of Lucknow. The STF with the aid of officers of the Department of Weight and Measures and the District Administration raided the premises of the retail outlets. The team found that 15 nozzles connected to four machines i.e. dispensing units with seals intact were operative and functional. The testing was carried out in the presence of Apar Nagar Magistrate, two Inspectors of Weights and Measures Department and the partners of the firm M/s. Shiv Narain & Sons and its Manager. As per the inspection memo recorded on April 27, 2017, out of 15 nozzles, 10 nozzles were used for sale of petrol and the remaining 5 nozzles were used for sale of diesel. 13 nozzles were involved in malpractice of short delivery. The team derived 5 liters of petrol and diesel respectively in the testing work standard measurement kept at the outlet but on calibration, it was found that the quantity of 200 ml. was short. For such short delivery, the FIR, as mentioned above, was lodged.
5) In the FIR, it is alleged that some electronic chip was fixed inside the dispensing unit which was operated through a remote. Three remote controls bearing Nos. 2, 3 and 4 were recovered and two remote controls were recovered without any numbers. The inspection team also verified the storage of stocks available as on date in the underground tanks by using a dip rod. On verification of actual stock, the comparative record maintained by the dealer was found to be inconsistent rather the stock available was found to be excessive and was recorded accordingly. The dispensing machines were sealed by the inspection team and the sale was immediately stopped. The accused were arrested on April 28, 2017. Later, on June 1, 2017, the Investigating Officer along with seven persons including the City Magistrate visited the retail outlet and with the help of technicians hired from General Energy Management Systems Pvt. Ltd. opened the dispensing machines. The seals were found intact both at the initial stage of inspection i.e. on April 27, 2017 and on June 1, 2017. The electronic chips fixed inside the 24 dispensing units were taken into custody by the Investigating Officer. Such electronic chips recovered on June 1, 2017 are now with Forensic Science Laboratory, Lucknow for its forensic report. The Magistrate on an application made by the Investigating Officer allowed the judicial remand of accused vide order dated June 7, 2017 and also permitted the investigation under Sections 467, 468, 471 IPC and Sections 12/30 of the Legal Metrology Act, 2009 [Act].
6) It is on the basis of investigations carried out, the charge-sheet dated July 25, 2017 for the offences under Sections 265, 267, 420, 34, 120B IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468, 471 IPC and Sections 12/30 of the Weights and Measures Act, 1976 came to be filed before the competent court. The Magistrate did not take cognizance of offence under Sections 471 and 120B of IPC for want of evidence but the Magistrate has taken cognizance of an offence under Section 30
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