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High Court Of Calcutta
DIBYENDU BHUSAN DUTTA
INDIAN OIL CORPORATION LIMITED - Appellant
Versus
S.A.NEYAZI - Respondent
C. R. R. 860 Of 1997
Decided On : 09/25/1997
STANDARDS OF WEIGHTS AND MEASURES ACT, 1976 - SECTION 33 - STANDARDS OF WEIGHTS AND MEASURES (ENFORCEMENT) ACT, 1985 - SECTION 51 - STANDARDS OF WEIGHTS AND MEASURES (PACKAGED COMMODITIES) RULES, 1977 - RULES 24, 25 - LPG PACKAGING UNIT - APPLICABILITY OF RULES - VICARIOUS LIABILITY OF MANAGING DIRECTOR - Held, the impugned prosecution is liable to be quashed so far as it is directed against the petitioner No. 2.
Fact of the Case:
The petitioners are a company and its managing director. They were prosecuted for an offence under Section 63 of the Standards of Weights and Measures Act, 1976 (the Act of 1976) for alleged contravention of Section 39 of the Act of 1976. The prosecution arose out of a complaint lodged by an Inspector of Legal Metrology with the Court of Sub-Divisional Judicial Magistrate, Durgapur. The complainant alleged that the petitioner No. 3, who was the acting plant manager of the petitioner company's LPG bottling plant at Durgapur, was asked to produce filled LPG cylinders for checking of their net content. A weight checking data sheet was prepared in respect of 32 filled cylinders as per the procedure laid down in Rule 24 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (the Rules). Out of those 32 cylinders, an error was detected in one cylinder. The error in deficiency was more than twice the maximum permissible limit as shown in the second schedule of the relevant Rules. The LPG cylinder in question was accordingly seized under Section 29 of the Act of 1976 and it was kept under the safe custody of the petitioner No. 3. The complainant's predecessor effected a seizure on 13-6-95 from this bottling plant for detection of short weight of the contents of LPG cylinders. The offence in respect of that seizure was compounded by the Controller of Legal Metrology, West Bengal under Section 73 of the Act of 1976 read with Section 65 of the Standards of Weights and Measures (Enforcement) Act, 1985 (the Act of 1985) and the petitioner company paid the compounding fees amounting to Rs. 4,995/- on 7-7-95. Thus the offence in relation to the short weight that was detected on 22-3-96 is a second offence within the meaning of Section 65 (2) of the Act of 1985 within a period of three years from the date on which the first offence was compounded. The learned Magistrate by order dated 21st August, 1996 took cognizance upon that complaint and issued process against the petitioners.
Finding of the Court:
The court held that the impugned prosecution is liable to be quashed so far as it is directed against the petitioner No. 2. The court held that the petitioner No. 2 was not in charge of and was not responsible to the company for the conduct of the business of the company at the time when the offence was committed, and therefore the legal fiction created under Section 62 (1) of the Act of 1985 cannot be pressed into service against him.
Issues: Whether the impugned prosecution is liable to be quashed so far as it is directed against the petitioner No. 2.
Ratio Decidendi: The court held that the impugned prosecution is liable to be quashed so far as it is directed against the petitioner No. 2. The court held that the petitioner No. 2 was not in charge of and was not responsible to the company for the conduct of the business of the company at the time when the offence was committed, and therefore the legal fiction created under Section 62 (1) of the Act of 1985 cannot be pressed into service against him.
Final Decision: The court allowed the revisional application in part and quashed the impugned prosecution as against the accused petitioner No. 2.
( 1 ) THE present application under S. 482 of the Criminal Procedure Code is directed against the proceedings in Case No. C. R. 235 of 1996 pending in the Court of Sub-Divisional Judicial Magistrate, Durgapur.
( 2 ) THE above case arose out of a written complaint lodged by an Inspector of Legal Metrology, Durgapur sub-division with the Court of Sub-Divisional Judicial Magistrate, Durgapur.
( 3 ) THE complainant's case may be stated as follows. In course of a surprise visit of LPG bottling plant of Indian Oil Corporation Limited, the petitioner No. 1 company at Durgapur on 22-3-96 along with Assistant Controller of Legal Metrology, Burdwan and Inspector of Legal Metrology, Durgapur, the petitioner No. 3 who happened to be the acting plant manager of that bottling plant was asked to produce filled LPG cylinders for checking of their net content. The checking was undertaken in presence of the petitioner No. 3 and the complainant verified and checked the cylinders which were supplied by the packer. A weight checking data sheet was prepared in 32 filled cylinders as per procedure laid down in R. 24 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (For short, 'rules' ). Out of those 32 LPG filled cylinders an error was detected in one cylinder. According to the second schedule of the aforesaid Rules, the maximum permissible error in deficiency is 150 gms. But as per serial No. 12 of the weight checking data sheet, the net content of that particular LPG cylinder was found to be less than the declared net content by 1200 gms. The error in deficiency was thus more than twice the maximum permissible limit as shown in schedule 2 of the relevant Rules. The LPG cylinder in question was accordingly seized under S. 29 of the Standards of Weights and Measures Act, 1976 (for short, 'act of 1976') and it was kept under the safe custody of the petitioner No. 3. The complainant's predecessor effected a seizure on 13-6-95 from this bottling plant for detection of short weight of the contents of LPG cylinders. The offence in respect of that seizure was compounded by the Controller of Legal Metrology, West Bengal under S. 73 of the Act of 1976 read with S. 65 of the Standards of Weights and Measures (Enforcement) Act, 1985 (for short, 'act of 1985') and the petitioner company paid the compounding fees amounting to Rs. 4,995/- on 7-7-95. Thus the offence in relation to the short weight that was detected on 22-3-96 is a second offence within the meaning of S. 65 (2) of the Act of 1985 within a period of three years from the date on which the first offence was compounded. The act of manufacturing, packing, distributing, selling, offering, exposing, processing for sale of any packaged commodity which does not conform to the declared net weight as per the provisions of R. 24 (4) (c) of the Rules amounts to contravention of S. 39 of the Act of 1976 read with R. 25 of the Rules and is punishable under S. 63 of the said Act. The petitioner No. 3 as acting plant manager packed and possessed for distribution of the concerned filled LPG cylinder and had thereby committed an offence under S. 39 of the Act which is punishable under S. 63 of the Act of 1976. The petitioner No. 1 being the Company and the petitioner No. 2 being its Managing Director have also committed the said offence within the meaning of S. 74 of the Act of 1976.
( 4 ) THE learned Magistrate by order dated 21st August, 1996 took cognizance upon that complaint and issued process against the petitioners.
( 5 ) THE petitioners have come up in revision under S. 482 of the Cr. P. C. for quashing the criminal proceeding.
( 6 ) THE petitioners' case as made out in the revisional application may be stated as follows. The impugned prosecution is illegal and without jurisdiction inasmuch as the allegations in the petition of complaint taken in their entirety and read in the context of the relevant statutory provisions do not make out the basic ing
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