JUDGMENT Prashant Kumar, J.––This application has been filed for quashing the entire criminal proceeding in connection with Complaint Case no. WM 214/05 including the order dated 05.08.2000 whereby and where under learned court below took cognizance against petitioner nos. 2 and 3, namely, Sri A.C. Sen, and Sri Swapan Kumar Mondal, respectively under sections 45 and 47 of the Standards of Weights and Measurement (Enforcement) Act, 1985( herein after referred as the Act of 1985) 2. The facts of the case in brief is that the petitioner no.1 is an undertaking of Govt. of India, engaged in refining and distribution of petroleum products all over the country and petitioner no.2 and 3 namely, A.C. Sen and Swapan Kumar Mondal respectively, are senior officials of petitioner no.1. It is further stated that petitioners received a letter dated 23.12.1999 under the signature of Inspector (Weights and Measurement) asking the petitioners to produce blue prints, structural drawings, fabrications drawings etc. of the storage tank situated at Dhanbad depot of petitioner no.1, because the said storage tanks have not been calibrated. It is stated that petitioners filed Annexure-4 and sent their reply (Annexure-4) to the aforesaid letter, wherein they stated that storage tanks at their Dhanbad Depot were not used for the sale of its product to the customers or consumers, as such storage tanks cannot be treated as an instrument of measurement. It is further stated that petitioners are selling and supplying the petroleum products through tank lorries. It is further stated that the petroleum products filled in tank lorries are measured by calibrated Dip-Rods and the same are verified and stamped by Metrology Department. It is stated that again Controller, Weights and Measurement Department, Bihar Patna sent a letter to the petitioners that as per Section 24(1) of the Act, of 1985, it is mandatory for the petitioner corporation to get the storage tanks duly verified by the respondents, otherwise petitioners will be prosecuted. Again petitioners wrote a letter to the respondents that storage tanks in their depot were used as storage vessel for the products received from the refineries etc. and the mode of delivery of petroleum products to the ultimate consumers or retail outlets is through tank lorries, which kept calibrated Dip Rod duly verified and stamped by the Weights and Measurement Department.. and the mode of delivery of petroleum products to the ultimate consumers or retail outlets is through tank lorries, which kept calibrated Dip Rod duly verified and stamped by the Weights and Measurement Department.. Accordingly, it is stated that storage tanks are not an instrument of measurement, therefore, do not come within the purview of Section 24(1) of the Act of 1985. It is stated that inspite of aforesaid reply, respondents asked the petitioners to deposit Rs. 44,520/- through Bank Draft in favour of Controller of Legal Metrology, Bihar Patna, for the purpose of calibration of storage tanks situated at its Dhanbad Depot. It is then stated that when petitioners did not deposit aforesaid amount, respondents filed a complaint before the Chief Judicial Magistrate , Patna vide Complaint Case no. 1417(M)/2000 on 30.8.2000 alleging therein that inspite of repeated direction, reminder and verification reports, petitioners were using the uncalibrated, unverified and unstamped storage tanks, which is violative of Section 22 and 24 of the Act of 1985 and therefore, they are liable to be punished under section 45 and 47 of the Act of 1985. It is stated that learned Chief Judicial Magistrate, Patna vide his order dated 05.8.2000 took cognizance of the offences under sections 45 and 47 of the Act of 1985 against the petitioners. It is stated that after coming into force of Bihar Reorganisation Act, aforesaid case transferred to the court of learned Chief Judicial Magistrate, Dhanbad, which was renumbered as Case no. WM 214/2005 and the same was transferred in the court of Sri Shwyambhu, Judicial Magistrate, Ist class, Dhanbad, who vide his order dated 24.11.2005 explained the substance of acquisition to the petitioner nos. 2 and 3, to which they pleaded not guilty and prayed that they may be discharged. 3. Petitioner challenged the entire criminal proceeding in connection with Complaint Case no. WM 214/05 by filing the present writ application. 4. Sri Delip Jerath, learned counsel appearing for the petitioner submits that according to the definition of Weights and Measuring instrument given under section 2(zc) of the Standards of Weights and Measures Act, 1976 (herein after referred as the Act of 1976), storage tank is not an instrument of weight and measure, therefore, storage tank is not required to be calibrated and stamped by the Metrology Department under sections 22 and 24(1) of the Act of 1985. He further submits that storage tanks are not used for any commercial purposes rather they are used for limited purpose i.e. storage of petroleum products received from the refineries etc. He further submitted that from the storage tank, the petroleum products supplied to various retail dealers through tank lorries, which kept calibrated Dip-Rod for measurement of petroleum products supplied to the retailers. Sri Jerath submits that calibrated Dip-Rod kept in the tank lorries are duly verified and stamped by competent authority of Metrology Department as required under section 22 and 24(1) of the Act of 1985. Thus, petitioners had not violated any provisions as alleged in the complaint petition. Accordingly, Sri Jerath, submits that no offence under sections 45 and 47 of the Act of 1985 is made out against the petitioners. 5. On the other hand, learned counsel appearing for the State submits that the Division Bench of Patna High Court in a group of cases, filed before it, had held vide its judgment dated 04.8.1993 that storage tank is a measuring instrument within the meaning of the Act of 1976 and the Act of 1985, thus, storage tanks of the petitioners required to be calibrated, verified and stamped by the Weights and Measurement Department. He further submits that since petitioner no.1 inspite of notice given to it had not get its storage tank calibrated, verified and stamped by the Weights and Measurement Department therefore petitioner No.1 and its officers (petitioner nos. 2 and 3) are liable to be punished under section 45 and 47 of the Act of 1985. Accordingly, he submits that present application is liable to be dismissed. 6. The only question arose in this case for determination is as to whether storage tank of the petitioners situated at Dhanbad Depot are an instrument of measurement? The weighing and measuring instrument has been defined under section 2(zc) of the Act of 1976. Section 2(zc) runs as follows : "weighing or measuring instrument" means any object, instrument, apparatus or device, or any combination thereof, which is, or is intended to be, used, exclusively or additionally, for the purpose of making any weighment or measurement, and includes appliance, accessory or part associated with any such object, instrument, apparatus or device." 7. Section 2(zc) runs as follows : "weighing or measuring instrument" means any object, instrument, apparatus or device, or any combination thereof, which is, or is intended to be, used, exclusively or additionally, for the purpose of making any weighment or measurement, and includes appliance, accessory or part associated with any such object, instrument, apparatus or device." 7. From bare perusal of aforesaid definition, it is clear that any object or instrument or apparatus or device or any combination of the same, if used or intended to be used for the purpose of weighment and/or measurement, such object , instrument, apparatus or device will be treated as weighing or measuring instrument. Section 22 and 24(1) of the Act of 1985 runs as follows : 22. "Prohibition of sale or use of unstamped weights or measures-No weight or measure shall be sold, or offered ,or exposed or possessed for sale or used or kept for use in any transaction or for industrial production or for protection unless it has been verified and stamped. Provided that nothing in this section shall apply to any weight or measure which has been initially verified and stamped with a special seal referred to in sub-section(3) of Section 41 of the Standards Act." 24(1) "Verification and stamping of weights or measures-(1) Every person having any weight or measure in his possession, custody or control in circumstances indicating that such weight or measures is being, or is intended or likely to be used by him in any transaction or for industrial production or for protection, shall, before putting such weight or measure into such use, have such weight or measure verified at such place and during such hours as the Controller may, by general or special order, specify in this behalf (hereinafter referred to as the specified place or specified time, on payment of such fees as may be prescribed." 8. Thus, section 22 prohibits sale or used of unstamped weights or measures, whereas Section 24(1) requires that every weight and measuring instrument found in the custody and control of a person and it appears that he is using and/or intending to use the same as weight and measure in any transaction or for industrial production or for protection, then it is mandatory for him to get the said instrument verified by the controller on payment of prescribed fee. 9. 9. Petitioners in their writ application had categorically stated that storage tank situated at their Dhanbad depot is not used for any commercial purpose. They used the same for storage of petroleum products received from refineries. Petitioners have made following averments at paragraph nos. 20 and 21 of their writ application, which run as follows : "20. That the petitioners humbly state that there is no question of storage tanks to be marked, calibrated and stamped by the Legal Metrology Department and as a matter of fact the storage tanks are used internally by the petitioners' company for its own use. These storage tanks thus under no stretch of imagination can be termed a measuring device of oil by the Company and no business relationship emerges at that juncture." "21. That the petitioners humbly state and reiterate that the storage tanks are not for any commercial purpose but only for a limited purpose, i.e., to have a storage for proper filling of tank lorries and a device to avoid fire hazards and to store the Petroleum products safely. The product filled in the tank lorries are measured by calibrated 'Dip Rods' duly marked and stamped by the Legal Metrology Department for sale purpose at the respective retail outlet. These tank lorries which are filled with petroleum products are measured by the aforesaid duly calibrated 'Dip Rods' at the departure stage and also at the delivery point, i.e. the retail outlet. Thus, the storage tanks cannot be said or claimed to be an instrument used for measurement." 10. Thus, according to the petitioners, they are not doing any transaction from its storage tank, rather they are selling and/or supplying petroleum products to the retailers and/or consumers through tank lorries, which kept calibrated Dip-Rod. It is stated that said Dip-Rod are duly calibrated, verified and stamped by the competent authority of the Metrology Department. Aforesaid fact as stated in the writ application has not been denied by the respondents in their counter affidavit. Thus, if the storage tank is used only for the purpose of storage of petroleum products, then the same cannot be treated as weighing and measuring instrument as defined under section 2(zc) of the Act, of 1976. 11. Aforesaid fact as stated in the writ application has not been denied by the respondents in their counter affidavit. Thus, if the storage tank is used only for the purpose of storage of petroleum products, then the same cannot be treated as weighing and measuring instrument as defined under section 2(zc) of the Act, of 1976. 11. Judgment relied upon by the learned counsel for the respondents (CWJC No.2404 of 1981), had no application in the facts of this case, because in that case, storage tanks apart from being used for storage, also used for seeking information as to how much quantity of articles stored therein. Paragraph no.10 of the judgment of the Patna High Court in C.W.J.C. No. 2404 of 1981 alongwith analogous cases runs as follows : "From bare perusal of section 2(zc), referred to above, it would appear that if an object is used not exclusively for the purpose of any measurement but is used mainly for some purpose other than measurement and in addition to that it is intended to be used for measurement, the same will be treated to be a measuring instrument within the meaning of the Act. In the present case, storage tank or vats are primarily used for the purpose of storage but, apart from that, the same is used also for seeking information as to how much quantity of articles has been stored therein." (emphasis added) 12. In the aforesaid decision, their lordships held that as per Section 2(zc) of the Act of 1976, if an object is not used exclusively for the purpose of measurement, but used mainly for the purpose other than measurement and in addition to that is intended to be used for the purpose of measurement, then same will be treated as measuring instrument. 13. In the instant case, as noticed above, petitioners categorically stated that they are using storage tanks at Dhanbad Depot only for the purpose of storage of petroleum products received from the refineries. They are not using the same as a measuring instrument. This fact has not been denied by the respondents in their counter affidavit. Thus, there is nothing to show that petitioners had intention to use the storage tanks situated at their Dhanbad Depot for measuring the quantity of petroleum products kept in it. They are not using the same as a measuring instrument. This fact has not been denied by the respondents in their counter affidavit. Thus, there is nothing to show that petitioners had intention to use the storage tanks situated at their Dhanbad Depot for measuring the quantity of petroleum products kept in it. Under the said circumstance, I find that aforesaid judgment of Division Bench of Patna High Court is not applicable to this case, as the facts of this case is different from the facts of aforesaid cases. 14. As I have come to the conclusion that storage tank of the petitioners situated at Dhanbad Depot is not a weighing and measuring instrument, as defined under section 2(zc) of the Act of 1976, I am of the view that petitioners are not required to get the aforesaid storage tanks calibrated, stamped and verified by the Weights and Measurement Department under sections 22 and 24(1) of the Act of 1985. Thus, I find that petitioners had not violated the provisions of Sections 22 and 24(1) of the Act of 1985. Accordingly, they are not liable to be punished under section 45 and 47 of the Act, 1985. 15. Accordingly, order taking cognizance as also the entire criminal proceeding launched against the petitioners in connection with Complaint Case no. WM 214/05 are illegal and an abuse of the process of the Court. Thus, the same cannot be sustained. 16. In view of the discussion made above, this writ application is allowed and the entire criminal proceeding in connection with Complaint Case no. WM 214/05 pending in the court of Shwyambhu, Judicial Magistrate, Ist class, Dhanbad and the order dated 05.08.2000 by which cognizance of offence under section 45 and 47 of the Act of 1985 taken against the petitioners are hereby quashed. Writ allowed.