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2019 Supreme(Bom) 2043
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
Prithviraj K. Chavan, J.
State, Through Inspector, Legal Metrology, Margao, Goa - Appellant
Versus
M/s Bata India Ltd., Thane - Respondent
Criminal Application (Main) No. 180 of 2016
Decided On : 30-07-2019
S.R. Rivankar, Advocate, G. Sardessai, Advocate
Headnote:
Code of Criminal Procedure, 1973 - Section 378 - Standards of Weights and Measures Act, 1976 - Sections 39, 74, 73, 2, 63, 72, 28, 50, 52, 53, 56, 58, 60, 61, 63, 64, 65 and 66 – Manufacturer Of Footwear - Smudging Printed Price – Committed Offence - Pre-Packed Commodity - By this composite application for leave to appeal state thorough inspector of legal metrology seeks quashing of impugned judgment and order passed by learned chief judicial magistrate by which accused came to be acquitted - At outset learned counsel appearing for respondent raised an issue of very maintainability of this application - Learned public prosecutor however contended that appeal is maintainable - Before adverting to said issue it would be expedient to refer to a few facts of case - Respondent is manufacturer of footwear which respondent is a manager and respondent is in charge of manufacturer of respondent - Inspector of Legal Metrology paid a surprised visit to trading business of respondent at station road for purpose of inspection of packages of shoes sandals etc displayed and exposed for sale - Respondent was present that time - It is noted by inspector that mrp printed on some of packages of sandals shoes etc were smudged and stickers of revised mrp was affixed in place of original mrp on said packages and said packages were manufactured by respondent – Held, An offence punishable may be tried summarily by a magistrate and no sentence of imprisonment for a term exceeding one year shall be passed in case of any conviction for an offence which is summarily tried under this section - A conjoint reading of contemplates that an appeal in case of acquittal passed in a case in which offence has been investigated by an agency empowers to make an investigation then it is for central government to direct public prosecutor to present an appeal - This appeal undoubtedly has been filed by public prosecutor without authorization - It would be far-fetched to say that an affidavit of complainant annexed with memo of appeal is sufficient to hold due authorization to public prosecutor - It is not contention of learned public prosecutor that complainant has been authorized to issue authorization in favour of public prosecutor to file an appeal - Affidavit reveals that complainant has simply stated that contents of paragraphs of appeal are true and correct to his personal knowledge - Appeal stands dismissed.
JUDGMENT
Prithviraj K. Chavan, J. - By this composite application for leave to appeal under Section 378(4) of Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and appeal under Section 378(1)(b) of Cr.P.C., the State thorough the Inspector of Legal Metrology Margao, Goa, seeks quashing of impugned judgment and order dated 25.1.2016 passed by the learned Chief Judicial Magistrate by which the accused nos.1 and 2 came to be acquitted.
2. At the outset, the learned Counsel appearing for the respondent no.1 raised an issue of very maintainability of this application under Section 378(4) of Cr.P.C.
3. The learned Public Prosecutor, however contended that the appeal is maintainable under Section 378(4) of Cr.P.C.
4. Before adverting to the said issue, it would be expedient to refer to a few facts of the case:-
Appellant had filed a Criminal case no.1140/OA/WM/ 05/A against the respondents under Section 39 of the Standards of Weights and Measures Act, 1976 (for short "the Act") and Rule 23 (1), (2), (6) and (7) of the Standards of Weights and Measures(Packaged Commodities)Rules 1977( for short "Rules, 1977") and under Section 74 of the said Act.
5. The respondent no.1 is the manufacturer of footwear under the brand name "BATA", of which the respondent no.2 is a manager and respondent no.3 is the incharge of the manufacturer of respondent no.1.
6. Mr. Arun Panchawadkar, Inspector of Legal Metrology, Margao paid a surprised visit to the trading business of respondent no.1 at Station road, Margao for the purpose of inspection of packages of shoes, sandals etc displayed and exposed for sale on 3.6.2015. The respondent no.2 was present that time. It is noted by the Inspector that MRP printed on some of the packages of sandals, shoes etc were smudged and the stickers of revised MRP Rs.189/- was affixed in place of original MRP of Rs.179/- on the said packages and the said packages were manufactured by respondent no.1.
7. On demand respondent no.2 presented 10 packages of "Bata Classic Sandals" in packed form printed with MRP Rs.179/- inclusive of all taxes, manufactured in the month of 1.2.2005.
8. It was inter alia noticed that said packages were manufactured by BATA India Limited having registered office at 6,A.S.N. Banergie road, Calcutta, having original printed price on the packages as Rs.179/- inclusive of all taxes but same was smudged and altered by affixing sticker on the same having MRP of Rs.189/- and thus, exceeding the retail sale price on the said packages by Rs.10/-.
9. Further on inspection of different shoes, sandals, chappals, it was found that the employees of respondent no.1, shoe shop at Margao were smudging the printed prize on shoes, sandals and chappals by using gun for printing the sticker of MRP on sandals, chappals and shoes in contravention of Rule 23(1), (2, (6) and (7) of the Rules of 1977.
10. The complainant seized the packages of sandals, shoes and chappals alongwith bill book and the gun under the seizure report by drawing a panchanama dated 3.6.2005.
11. On 6.6.2005, the complainant handed over the letter to respondent no.2 asking him to furnish names and addresses of the persons/partners responsible for the conduct of business of respondent no.1.
12. By a reply dated 10.6.2005, respondent no.1 denied that the footwear sold by them from their retail outlet at Margao are under the packaged commodities and they are kept in boxes and open to enable the customers to inspect before purchasing, hence footwear does not come under the definition "Pre-Packed Commodity'', as defined under Rule 2(1) of the said Rules and Section 2(b) of the said Act. It is contented that company is within its right to enhance the price of footwear sold, which is revised after receiving price increment circular No.014/2005 with effect from 11.4.2005. The respondent no.1 has also informed the names and addresses of respondent nos. 2 and 3 as the persons, who are responsible for the business of the shop.
13. On 17.10.2005, Controll
