IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5565 OF 2016 BETWEEN:
SRI.ASHOK KUMAR KUNDU, DEPUTY MANAGER, (CONSUMER SALES), INDIAN OIL CORPORATION, CUNNINGHAM ROAD, BENGALURU DIVISION OFFICE, BENGALURU-560 052. ... PETITIONER (BY SRI.GOPALAKRISHNA.R, ADVOCATE) AND:
INSPECTOR OF LEGAL METROLOGY, TIPTUR SUB-DIVISION, TIPTUR. ... RESPONDENT (BY SRI.DILDAR SHIRALLI, HCGP) THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER OF V ADDL. DIST. AND S.J., TIPTUR IN CRL.R.P.10076/2014 DATED 28.01.2016 AND QUASH THE ORDER OF THE LEARNED JUDGE AND JMFC, TURUVEKERE IN ORDERING ISSUANCES OF NOTICE TO THE PETITIONER TO FACT THE TRIAL DATED 19.02.2013.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioner and learned HCGP for respondent.
2. Petitioner is the Deputy Manager (consumer sales) Indian Oil Corporation Ltd., Cunningham Road, Bangalore Division Office, Bengaluru. He is aggrieved by the order dated 28.1.2016 passed by the V Additional District & Sessions Judge, Tiptur, in Crl.R.P.No.10076/2014, whereby the learned Sessions Judge, dismissed the revision petition filed by the petitioner under Section 397 of Cr.P.C. and confirmed the order passed by the Civil Judge & JMFC., Turuvekere in C.C.No.88/2013 dated 19.02.2013, thereby taking cognizance of the offence under Section 44(i) of the Legal Metrology Act, 2009 (hereinafter referred to as ‘Act’ for short).
2. Placing reliance on Clause-7 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, learned counsel has taken up a plea that the Officer, who conducted the search and seizure is not an authorized officer and therefore initiation of the proceedings against petitioner are bad in law and liable to be quashed.
3. The contention of learned counsel for petitioner is misconceived. Complaint was filed against the petitioner by the Inspector of Legal Metrology, for the alleged commission of offence under Section 44 (i) of the Act. According to the respondent/complainant, at about 5.30 p.m., on 13.07.2012 when the Legal Metrology Inspector inspected the truck bearing No. KA-01-AG-1599 found tampering of the measuring instrument, which is an offence punishable under Section 44 of the Act. There is no dispute that the legal Metrology Inspector is competent to search and seize incriminating materials involved in the commission of the offence under the provisions of the Act.
4. Section 44 of The Legal Metrology Act, 2009, provides for penalty for counterfeiting of seal etc., It reads as under:
“Penalty for counterfeiting of seals, etc.- (1) Whoever-
(i) counterfeits any seal specified by or under this Act or the rules made thereunder, or (ii) sells or otherwise disposes of any counterfeit seal, or (iii) possesses any counterfeit seal, or (iv) counterfeits or removes or tampers with any stamp, specified by or under this Act or rules made thereunder, or same (v) affixes the stamp so removed on, or inserts the into, any other weight or measure, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years.
Explanation.- In this sub-section. “counterfeit” shall have the meaning assigned to it in section 28 of the Indian Penal Code (45 of 1860).
(2) Whoever obtains, by unlawful means, any seal specified by or under this Act or the Rules made thereunder and uses, or causes to be used, any such seal for making any stamp on any weight or measure with a view to representing that the stamp made by such seal is authorized by or under this Act or the rules made thereunder shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years.
(3) Whoever, being in lawful possession of a seal specified by or under this Act or the rules made thereunder, uses, or causes to be used, such seal without any lawful authority for such use, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years.
(4) Whoever sells or offers or exposes for sale or otherwise disposes of any weight or measure which, he knows or has reason to believe, bears thereon a counterfeit stamp, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years.
5. Since the allegations in the complaint relate to counterfeiting or tampering with the measurement instrument, alleged violation falls within the ambit of Section 44(4) of Act. There are no allegations against the petitioner that he has violated any of the provisions of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order,1998. In the absence of any such allegations, reliance on the aforesaid order by learned counsel for the petitioner is wholly misplaced andliable to be rejected.
Accordingly, Criminal petition is dismissed.
Liberty is reserved to the petitioner to seek discharge before the trial court on such grounds as available under law.
In view of the dismissal of the main petition, I.A.No.1/16 filed for stay does not survive for consideration and accordingly same is also dismissed.
Sd/- JUDGE psg*