(1) LEARNED Advocate Mr. Tapan Deb Nandi appears on behalf of the petitioner Nos. 1, 2 and 3 and he submits affidavit-of-service. Let this affidavit-of-service be kept with the records. None appears for the opposite parties in spite of service of notice.

(2) THE application under section 401 read with section 482 of the Code of criminal Procedure filed by the petitioners is moved by the learned Advocate mr. Tapan Deb Nandi.

(3) IN this application the petitioners have sought for quashing of the proceeding in Case No. C-735 of 1991 T. R. 14/93 under section 54/63/74 of the standards of Weights and Measures Act, 1976 pending before the learned judicial Magistrate, First Class, 5th Court, Sealdah. Mr. Nandi referred true copy of the complaint lodged against the petitioners by the Inspector of Legal metrology, certified copy of the order dated 4.9. 1991 whereby the learned additional Chief Judicial Magistrate, Sealdah, South 24 Parganas took cognizance of the offence on the basis of the complaint from the Inspector of legal Metrology and the order dated 8.9.1993 passed by the learned Judicial magistrate, 5th Court, Sealdah, South 24-Parganas who by the said order rejected the application filed by the petitioners praying for their discharge on the ground of maintainability of the proceeding against them. Mr. Nandi referring to above documents submits that the petitioner No.1 is the company and petitioner Nos. 2 and 3 have been described in the complaint as Directors of the company M/s. Krishna Chandra Dutta (Cookme) Pvt. Ltd.

(4) IT is submitted by Mr. Nandi that the facts disclosed in the complaint do not show that the petitioner Nos. 2 and 3 at the time of commission of offence besides being Director of the company, were in charge and responsible for day-to-day affairs of the company as well as the company. According to mr. Nandi since there is no such averment in the complaint, the prosecution against the petitioner Nos. 2 and 3 is not maintainable and the learned magistrate erroneously rejected their petition filed in this regard in the court below.

(5) MR. Nandi drawing my attention to section 74 of the Standards of weights and Measures Act, 1976 as also a decision reported in 1998 Cr. LJ 2281 (Calcutta High Court) Indian Oil Corpration Ltd. vs. S.A. Neyazi, submits that unless there is any specific averment in the complaint showing the petitioners are incharge as Director and responsible for day-to-day affairs of the company, they cannot be prosecuted. He, therefore, submits that the impugned order dated 4.9.1991 taking cognizance of offence against the petitioner Nos. 2 and 3 as also the impugned order dated 8.9.1993 passed by the learned Magistrate rejecting the application filed by the petitioner Nos. 2 and 3, should be set aside by this Court and the proceeding against the petitioner Nos. 2 and 3 should be quashed for the ends of justice.

(6) IT appears from the complaint that the Inspector of Legal Metrology visited the factory premises M/s. Krishna Chandra Dutta (Cookme) Pvt. Ltd. at 8, Cossipore Road, Calcutta-700 002, PS Cossipore on 23.10.1990 at about 2.00 p.m. when none was found present excepting one employee Sri Kashi nath Dutta who did not co-operate with the Inspector and produce papers and records relating to inter-State Trade of the product in spite of demand. Thus, the Inspector seized some packages of Haldi powder found in the premises under section 29 (1) for the violation of sections and Rules mentioned in the complaint punishable under section 63 of the Standards of Weights and measures (Packaged Commodities) Rules, 1977 and kept the seized article in his custody. As the employee Kashi Nath Dutta did not sign the seizure list nor did he agree to receive the copy of the same, the complainant also implicated Kashi Nath Dutta under section 29 (1) (a) as he obstructed the complainant in the lawful exercises of powers in discharging official duties and committed an offence punishable under section