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2023 DIGILAW 535 (JHR)

Umang Kejriwal v. State of Jharkhand

2023-04-19

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : 1. Heard Mr. Indrajit Sinha assisted by Mr. Bibhash Sinha, learned counsel for the petitioner and Mr. Sunil Kumar Dubey, learned counsel for the State. 2. This petition has been filed for quashing of entire criminal proceeding including order dated 24.08.2013 passed in connection with W.M. Case No. 34 of 2013 whereby cognizance has been taken under sections 31, 33, 38 and 42 of the Legal Metrology Act, 2009, pending in the Court of learned Judicial Magistrate, Ist Class, Bokaro. 3. The complaint has been filed alleging therein that the accused persons were in possession and use of the seized Digital Rail In-motion Weigh Bridge (made in China) and Maximum capacity-Minimum capacity, e-value class (accuracy) etc, Model not mentioned, whose number is XK3105C, without certification and stamping, for failure to produce the documents on notice, for non availability of approval of model and for keeping Weights and Measures equipment without import licence. 4. Mr. Indrajit Sinha, learned counsel for the petitioners submits that in the enclosure to the said complaint a Memo dated 30.03.2013 has been filed wherein it has been reported that uncertified, unstamped and Metlertoledo China made in Motion Automatic Weigh Bridge was found installed and in this connection documents relating to approval of Model and Registration of importer of Weights and Measure was demanded but they were unable to produce, that is allegation. He further submits that Weights and Measure equipment was seized and seizure certificate was handed over vide certificate no. 0101 dated 14.02.2013. He submits that approval for filing the alleged complaint case was granted by the controller vide his communication no. 229 dated 18.06.2013. He further submits that the petitioners are innocent and have not committed any offence. He further submits that the petitioner no. 1 is former Managing Director of Electosteel Steel Limited, petitioner no. 2 is former director of Electrosteel Steel of the said company, petitioner no. 3 is the Chief Instrumentation and Automation and petitioner no. 4 is senior engineer of Instrumentation and Automation of the said company. He further submits that in view of section 49 of the Legal Metrology Act, 2009 only the person who is looking day to day affairs of the company can be charged. He submits that in the entire complaint there is no averment so far as these petitioners are concerned that they were responsible for the business of the company. He further submits that in view of section 49 of the Legal Metrology Act, 2009 only the person who is looking day to day affairs of the company can be charged. He submits that in the entire complaint there is no averment so far as these petitioners are concerned that they were responsible for the business of the company. He further submits that company has not been made accused in the present case and in absence of company the entire criminal proceeding is bad in law. 5. On the other hand, Mr. Sunil Kr. Dubey, learned counsel for the State submits that there is violation of the provision that is why the case has been lodged and the learned court has taken cognizance. 6. In view of above submissions of the learned counsel for the parties the court has gone through the contents of complaint, order taking cognizance and sanction order contained in Annexure-4 and finds that in the complaint petition the company M/s Electrosteel Steel Limited has not been made accused. For correct appreciation of the case Section 49 of the Legal Metrology Act, 2009 is quoted hereinbelow:- “49. Offences by companies and power of court to publish name, place of business, etc., for companies convicted.- (1) “Where an offence under this Act has been committed by the company,- (a). (i) the person, if any, who has been nominated under subsection (2) to be in charge of, and responsible to, the company for the conduct of the business of the company and; (ii) where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company (b) the company shall be deemed to be guilty of the offence and shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly” 2. Any company may, by order in writing, authorize any of its directions to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Director or the concerned Controller or any legal metrology officer authorized in this behalf by such Controller (hereinafter in this section referred to as the authorized officer) in such form and in such manner as may be prescribed that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated. 3. The Person nominated under sub-section (2) shall, until- (i) further notice canceling such nominatioin is received from the company by the Director or the concerned Controller or the authorized office; or (ii) he ceases to be a director of the company; or (iii) he makes a request in writing to the Director or the concerned Controller or the legal metrology officer under intimation to the company, to cancel the nomination, which request shall be complied with by the Director or the concerned, Controller or the legal metrology officer, whichever is the earliest, continue to be the person responsible; 5. Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (5). Where any company is convicted under this Act for contravention of any of the provisions thereof, it shall be competent for the court convicting the company to cause the name and place of business of the company, nature of the contravention, the fact that the company has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of the company in such newspaper or in such other manner as the court may direct. (6) No publication under sub-section (5) shall be made until the period for preferring an appeal against the orders of the court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of. (7) The expenses of any publication under sub-section (5) shall be recoverable from the company as if it were a fine imposed by the court”., 7. Looking into the said Section it is crystal clear that the person who is responsible for discharging of the business of the company can only be prosecuted. There is no averment in the complaint that these petitioners were looking day to day affairs of the company at the time of offence. 8. In that view of the matter, if the company has not been made accused, there is no averment in the complaint that the petitioners were looking into day to day affairs of the company the entire criminal proceeding is bad in law, it is well settled that there are so many judgments on this point that a clear and categorical statement to the above effect is required to be made in the complaint petition to proceed against an officer of the company so as to determine his vicarious liability for the offence committed by the company, and taking into provision of section 49 of the Act and in absence of any specific averment in the complaint petition as discussed hereinabove the entire criminal proceeding so far these petitioners are concerned, is liable to be quashed. The company is not made accused. 9. Further the Court has gone through the sanction order of the competent authority dated 18.06.2013 and finds that in a format different sections have been filled up in blank space which shows non-application of judicial mind. It is well settled that even if sanction is granted, the application of mind is necessary which is lacking in the case in hand. 10. In view of above facts, reasons and analysis the entire criminal proceeding including order dated 24.08.2013 passed in connection with W.M. Case No. 34 of 2013 whereby cognizance has been taken under sections 31, 33, 38 and 42 of the Legal Metrology Act, 2009, pending in the Court of learned Judicial Magistrate, Ist Class, Bokaro, so far as these petitioners are concerned, is quashed and set aside. 11. This petition stands allowed and disposed of. 11. This petition stands allowed and disposed of. Pending I.A, if any, stands, disposed of. Interim order is vacated.