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Asst. Controller v/s Josco Auto Sales

    Crl.A. 368 of 1992

    Decided On, 18 October 1994

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K.J. JOSEPH

    Director General of Prosecutions (M. Ratna Singh) For Appellant S.A. Nagendran For Respondent



Judgment Text

The complainant in C.C. No. 100/1987 on the file of the Judicial First Class Magistrate, Kanjirappally is the petitioner herein. Respondents are the accused in the said case. The complainant had filed the above case against the accused/respondent for offences punishable under S.39(1) and S.63 of the Standards of Weights and Measures Act, 1976 and Rules 2(s), 6(1)(f), 23(1), R.10 and R.39 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977.


2. According to the complainant, the appellant herein, he inspected the shop of M/s. Josco Auto Sales at Ponkunnam. Accused 2-and 3 are the partners of the said firm. It is the case of the complainant that on 3-12-1986, he inspected the said shops and seized 4 packets from the shop which were exhibited for sale. It is also stated that the sale price was not printed in all the four packets as required under R.2(a), R.6(1)(f), R.23 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and thereby the accused had committed offences punishable under S.63 read with S.39 of the Standards of Weights and Measures Act, 1976.


3. To prove the above charge, the appellant had examined 3 witnesses and produced and marked Exts. P1 to P8. He has also produced MOs.1 to 4. The defence did not adduce any evidence. Learned Magistrate considered the evidence adduced by the complainant and found that the prosecution has not established the fact that the accused stored the goods for the purpose of effecting any inter-state trade or commerce. Learned Magistrate further found that to convict the accused under S.63. the prosecution has to adduce evidence that the articles in question were kept or intended for sale during the course of inter-State trade or commerce. Learned Magistrate on the/' evidence adduced in the case found that Ss.63 and 39 of the Act are not applicable in the case of the accused and there is absolutely no evidence adduced by the prosecution to prove that the automobiles spare parts seized by PW1 complainant from Al shop was intended or stored for the purpose of inter-State trade or commerce. He, therefore, acquitted the accused under S.255(1) of the Code of Criminal Procedure as per his judgment dated 22nd November, 1991 against which the complainant had come up in.this appeal against the order of acquittal.


4. I heard the learned Public Prosecutor appearing on behalf of the appellant/ complainant. The evidence adduced in the case would positively show that PW1 inspected the shop, M/s. Josco Auto Sales at Ponkunnam on 3-12-1986 and he had seized some automobiles spare parts kept in packaged form from the said shop. It has also come out in evidence that the sale price of the commodity was not printed in all the 4 packets seized by the complainant. It is also proved that the name of the manufacturer or packer is not printed in all the packets seized by PW1. The learned Magistrate considered the question in great detail in the light of the evidence of PW1 to 3 was also considered in great detail by the learned Magistrate. The reasons that weighed with learned Magistrate in acquitting the accused is that the prosecution has not established the fact that the automobile spare parts are kept by the accused in their shop in the course of inter-State trade or commerce.


5. Under S.63 of the Act, it is the duty of the prosecution to prove that the accused had contravened S.39 of the said Act. Prosecution has also to prove that the accused kept or stored packaged commodity in question in the course of inter-State trade or commerce. In the absence of such an allegation and proof, no accused can be convicted or sentenced under S.63 of the Act for the contravention of S.39.


6. On the basis of the evidence adduced in the case, especially the evidence of PWs.1 and 2, learned Magistrate came to the conclusion that there is no inter-State trade or commerce involved in the case. In para. 14 of the judgment in appeal, learned Magistrate has considered the matter in great detail. Inter-State trade or commerce is defined under S.2(m) of the Act which is extracted below:


"S.2(m): "Inter-Slate trade or commerce" in relation to any weight or measure or other goods which are bought, sold, supplied, distributed or delivered by weight, measure or number, means the purchase, sale, supply, distribution, delivery which,


(i) occasions the movement of such weight, measure or other goods from one Suite to another, or


(ii) is effected by a transfer of documents of title to such weight, measure or other goods during its movement from one Stale to another.


Explanation I: Where any such weight or measure is, or other goods are, delivered to a carrier or other bailee for transmission, the movement of such weight, measure or other goods shall, for the purposes of such clause (ii), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.


Explanation II: Where the movement of any such weight, measure or other goods commences and terminates in the same State, it shall not be deemed to be a movement of such weight, measure or other goods from one State to another merely by reason of the fact that in the course of such movement it passes through the territory of any other State".


The definition itself clearly shows that the Act and the Rules are intended to regularly only the inter-State trade or commerce. The Standards of Weights "and Measures Act, 1976 was promulgated for the purpose of regulating inter-State trade or commerce in weights, measures and other goods which are sold or distributed. Therefore, one of the essential ingredients that has to he proved by the prosecution in a charge under S.63 read with S.39 of the Act is that the accused kept the commodity in question in the course of inter-State trade or commerce. In this connection, it should be remembered that for the purpose of regulating inter Stale trade and commerce, the Standards of weights and measures (enforcement) Act, 1985 was introduced by the Parliament and the same was made applicable in respect of State of Kerala also. S.2 of the 1985 Act specifically stipulates that the said Act shal not apply to any inter-State trade or commerce. Under such circumstances, it cannot be said that the findings arrived at by the learned Magistrate that the prosecution had not adduced any evidence to prove that the accused stored the spare parts in question in the course of inter-State trade or commerce and therefore, no offence under S.63 or S.39 had been committed has to be accepted as correct. In the complaint filed by PW.1, th

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ere is no allegation much less proof adduced that the accused had any intention to sell the articles in question in the course of inter-State trade or commerce. On the other hand, when PW1 the complainant was examined, he had given evidence that the accused exhibited the commodities in his shop for the purpose of inter-State trade or commerce. In the absence of any such statement in the complaint and also acceptable legal evidence in court, it cannot be said that the order of acquittal passed by the learned Magistrate in any way illegal or wrong. The order of acquittal passed by the learned Magistrate does not call for any interference by this Court in this appeal. There is no merit in the appeal and hence the same is dismissed.
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