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Madhya Pradesh High Court · body

2008 DIGILAW 1408 (MP)

Shakti Service Station v. State of M. P.

2008-12-04

N.K.MODY

body2008
ORDER 1. Being aggrieved by the judgment dated 23.11.2007 passed by XIIIth Additional Sessions Judge, Indore in Cr.A. No. 384/2005, whereby the judgment dated 31.5.2005 passed by C.J.M. Indore in Criminal Case No. 2936/97, whereby the petitioners were convicted for an offence punishable under section 39 (2) (i) of The Standards of Weights and Measures (Enforcement) Act, 1985 (hereinafter shall be referred to as "the Act") and petitioners were convicted with sentence of fine of Rs. 8,000/- and petitioner No.2 was further sentenced till rising of Court and petitioner No. 3 was sentenced to undergo imprisonment of one year which was maintained in appeal, present revision petition has been filed. 2. In short case of the prosecution was that on 2.3.1997 an inspection was carried out by the Weights and Measures Department at M/s Shakti Service Station, Dealer of Indian Oil Corporation, situated at 4, Lalbagh Road, Indore. On inspection it was found that out of 4 pumps, 2 pumps were being used to dispense petrol out of which 1 pump was dispensing less petrol. Upon this a case was registered against the petitioners under the Act. It was alleged that petitioner No.1 is the firm while petitioners No.2 is the partner of the firm and petitioner No.3 was employed as Salesman at the relevant time. The case was also registered against one Sohil Ansari, Dy. Manager (Sales) and one Prakash, who was the salesman on the said petrol pump. After framing of charges and recording of evidence salesman Prakash and Dy. Manager Sohil Ansari were acquitted, however, petitioners were convicted as stated above, against which the appeal was filed, wherein the conviction was maintained, hence this revision. 3. Mr. S.K. Vyas, learned senior counsel argued at length and submits that learned Courts below committed error in convicting the petitioners for an offence punishable under section 39 (2) (i) of the Act. It is submitted that for bringing the offence within the purview of the Act it is necessary to take into account the fact that the element of sale and purchase of the article, which is petrol herein. It is submitted that there is no evidence that the petrol was sold by the petitioners to the complainant party, thus the section 39 (2) (1) of the Act itself does not come in to play. 4. It is submitted that there is no evidence that the petrol was sold by the petitioners to the complainant party, thus the section 39 (2) (1) of the Act itself does not come in to play. 4. Learned counsel for petitioners further submits that the Courts below committed error in not considering that measures used by the complainant to test the delivery of the machines was never produced in the Court as material objects in the course of evidence. The complainant did not even prepare a seizure memo of the conical measure and seal the same to be opened in the Court at the time of evidence. No panchnama or witnesses have been examined to prove that the conical measure claimed to have been used by the complainant to test the delivery from the offending pump was indeed the same. Learned counsel further submits that learned Courts below committed error in not considering the fact that the petrol dispensing unit had been stamped and verified to be dispensing correct volume of petrol, and had also been sealed by the Weights and Measures Department. The seal was also found to be intact and had not been found to be tampered with, therefore, it cannot be inferred that the petitioners were keeping the measure other than the standard measure. It is submitted at the time of checking the machinery, two pumps were not functioning and had been closed, one pump was dispensing excess quantity, this could have been caused due to some malfunctioning of the electronic machinery, which was beyond the control of the petitioners. The said machines were of the ownership and were maintained by the Indian Oil Corporation Ltd. and the petitioner have nothing to do with it. On the strength of this learned counsel for petitioners submits that petition deserves to be allowed and the judgment passed by both the Courts below, whereby the petitioners were convicted, deserves to be set-aside. 5. Mr. Devendra Singh, learned Panel Lawyer for the respondent - State submits that after due appreciation of evidence both the Courts below have found the petitioners guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 6. 5. Mr. Devendra Singh, learned Panel Lawyer for the respondent - State submits that after due appreciation of evidence both the Courts below have found the petitioners guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 6. Section 39 of the Act deals with penalty for keeping non-standard weights or measures for use and for other contraventions. Sub-section (i) of Sub-section (2) of section 39 of the Act reads as under: "Whoever in selling any article or thing by weight, measure or number, delivers or causes to be delivered to the purchaser any quantity or number of that article or thing less than the quantity or number contracted for and paid for, be punished with fine which may extend to five thousand rupees, and for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine." 7. From perusal of record, it appears that to prove the case respondent has produced documents Ex. P-1 to P-9 and has examined PW 1 PC Jain, Assistant Controller and PW 2 Shyam Dubey, Inspector Measurement Department. In the statement of PW 1 PC Jain it has specifically come that on the date of inspection he has not recorded any statement of Measurement Inspector. It was also admitted by him that he has not purchased any petrol. It was also admitted that the price of petrol was not paid which was taken by him from the dispensing unit for the purpose of testing. From perusal of record, it is evident that conical measure whereby the petrol which was taken by the complainant for testing purpose was also not produced before the learned Court below. In the complaint and in the statement it has been stated that for the purpose of testing the measurement was taken thrice and all the three times there was shortening of petrol of 27 ml., 28 ml. and 40 ml. respectively. There is nothing on record to show that how the complainant measured shortage of 27 ml., 28 ml. and 40 ml. and for that what type of conical measure was used and why the same has not been produced before the learned Court below. 8. and 40 ml. respectively. There is nothing on record to show that how the complainant measured shortage of 27 ml., 28 ml. and 40 ml. and for that what type of conical measure was used and why the same has not been produced before the learned Court below. 8. For the purpose of punishing a person under section 39 (2) (i) of the Act, it is necessary that there should be sell of any article or thing by weight. In the present case the complainant himself has frankly admitted that no price was paid by the complainant of the petrol which was taken from the petitioner for testing purpose. In the facts and circumstances of the case, this Court is of the opinion that learned Courts below committed error in convicting the petitioners for the offence under section 39 (2) (i) of the Act. In view of this, petition is allowed. The impugned judgment passed by learned Courts below is set-aside. Petitioners stand acquitted.