TMI Blog2019 (9) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... be charged for the same offence under Chapter XIII of Indian Penal Code. Reading of Section 51 of the Act makes it clear that the provisions of Indian Penal Code insofar as they relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under the Act. Therefore, the provisions of Indian Penal Code which relate to offences with regard to weight and measure as contained in Chapter XIII of Indian Penal Code alone will not apply. No person can be charged for an offence relating to weight or measure falling under Chapter XIII of Indian Penal Code in view of the provisions of the Act - the scheme of the Act is for the offences for use of weights and measures which are non-standard and for tampering with or altering any standards, secondary standards or working standards of any weight or measure. The Act does not foresee any offence relating to cheating as defined in Section 415 of Indian Penal Code or the offences Under Sections 467, 468 and 471 of Indian Penal Code. Similarly, an act performed in furtherance of a common intention disclosing an offence Under Section 34 is not covered by the provisions of the Act. An offence disclosing a crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctional. The testing was carried out in the presence of Apar Nagar Magistrate, two Inspectors of Weights and Measures Department and the partners of the firm M/s. Shiv Narain Sons and its Manager. As per the inspection memo recorded on April 27, 2017, out of 15 nozzles, 10 nozzles were used for sale of petrol and the remaining 5 nozzles were used for sale of diesel. 13 nozzles were involved in malpractice of short delivery. The team derived 5 liters of petrol and diesel respectively in the testing work standard measurement kept at the outlet but on calibration, it was found that the quantity of 200 ml. was short. For such short delivery, the FIR, as mentioned above, was lodged. 5. In the FIR, it is alleged that some electronic chip was fixed inside the dispensing unit which was operated through a remote. Three remote controls bearing Nos. 2, 3 and 4 were recovered and two remote controls were recovered without any numbers. The inspection team also verified the storage of stocks available as on date in the underground tanks by using a dip rod. On verification of actual stock, the comparative record maintained by the dealer was found to be inconsistent rather the stock availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... products sold to the public at large through dispensing machines, are open to be registered and investigated by the police authorities in terms of the provisions of Indian Penal Code and Code of Criminal Procedure or the provisions of Indian Penal Code and Code of Criminal Procedure for the said purpose would stand ousted/obliterated/eclipsed by virtue of Section 51 of Legal Metrology Act, 2009; (ii) Whether the Legal Metrology Act and the Essential Commodities Act and the procedure envisaged thereunder has an overriding effect over the provisions of Code of Criminal Procedure insofar as the investigation/search and seizure in respect of the offences relating to weights and measures are concerned. (iii) Whether the investigation held by the investigating officer assuming as if the same was permissible, has been held in consonance with the relevant law applicable as on the date or not and if not, its effect; (iv) Whether the court below while taking cognizance of the offences has passed the orders in accordance with the well-settled principles of law and if not, its effect. (v) Directions and directives necessary in the case. 8. It was held that the Code is applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount such materials for the purposes of taking cognizance of the offences, in the light of the orders passed on July 7, 2017 and August 17, 2017. The High Court held that Sections 467, 468, 471, 120-B and 34 of Indian Penal Code stand clearly attracted. 11. In respect of third question, the High Court directed the District Judge, Lucknow to ascertain the quantitative and qualitative figures of the residual stock lying in the underground tanks and allow the stock to be delivered to the oil company for custody after due calibration through the dispensing pumps installed. The High Court issued the following directions: (i) The Investigating Officer assigned the duty of investigation in case crime No. 130/2017 shall stand changed forthwith and the Superintendent of Police (City), North, Lucknow at present is hereby directed to take over the further investigation and cooperate with the District Judge, Lucknow to deliver the custody of petrol/diesel in the seized underground tanks to the respective oil company after due calibration of the same through the dispensing units. The District Judge/Investigating officer shall collect the samples for quality and quantity checks both in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e use of collapsible pulsers essential in the dispensing machines in order to prevent malpractices. Thus, the State Government is directed to implement the installation of such a device in consultation with the oil companies within a planned time framework of not later than four months. 12. The State as well as one of the Accused are in appeal before this Court. At the outset, learned Counsel for the parties stated that the directions issued by the High Court cannot be sustained in law, therefore, they have no objection if such directions are set aside. Such directions are liable to be set aside in view of the fact that the High Court, while exercising jurisdiction Under Section 482 of the Code, cannot interfere in the manner of investigation, in terms of the Judgment of this Court in M.C. Abraham and Anr. v. State of Maharashtra and Ors. (2003) 2 SCC 649 wherein it was held as under: 13. This Court held in the case of J.A.C. Saldanha [(1980) 1 SCC 554: 1980 SCC (Cri.) 272] that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved by the executive through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of cheque, the prosecution for an offence Under Section 420 Indian Penal Code was found to be maintainable even after the prosecution Under Section 138 of the Negotiable Instruments Act, 1881 NI Act is lodged. It was held that the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved in proceeding of an offence Under Section 138 of the NI Act, whereas in the case under Indian Penal Code, the issue of mens rea is relevant. It was held that the offences Under Section 420 of Indian Penal Code and Section 138 of NI Act are different, may on same facts. 16. On the other hand, Mr. Mukul Rohatgi, learned senior Counsel for the Accused argued that the Act is a complete Code providing for the standards of the weights and measures, the manner in which the same are required to be tested and also the offences for which the action can be taken. Since the Act is a special statute having overriding effect, therefore, the Accused cannot be charged for the offences under Indian Penal Code. Reliance is placed upon judgment of this Court in Sharat Babu Digumarti v. Government (NCT of Delhi) (2017) 2 SCC 18 as also the Division Bench judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or measure.-Whoever- (a) 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 or paid for; or (b) in rendering any service by weight, measure or number, renders that service less than the service contracted for or paid for; or (c) in buying any Article or thing by weight, measure or number, fraudulently receives, or causes to be received any quantity or number of that Article or thing in excess of the quantity or number contracted for or paid for; or (d) in obtaining any service by weight, measure or number, obtains that service in excess of the service contracted for or paid for, shall be punished with fine which may extend to ten thousand rupees and; for the second or subsequent offence, with imprisonment for a term which may extend to one year, or with fine, or with both. xx xx xx 51. The provisions of the Indian Penal Code and Section 153 of the Code of Criminal Procedure, 1973 in so far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act. 20. The question examined was as to whether an activity emanating from electronic form which may be obscene would be punishable Under Section 292 Indian Penal Code or Section 67 of the IT Act or both or any other provision of the IT Act. This Court held that Section 292 Indian Penal Code makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated in view of special provision for a specific purpose. The IT Act has to be given effect to so as to make the protection effective and true to the legislative intent. The Court held as under: 31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A and 67-B is a complete code relating to the offences that are covered under the IT Act. Section 79, as has been interpreted, is an exemption provision conferring protection to the individuals. However, the said protection has been expanded in the dictum of Shreya Singhal [Shreya Singhal v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 79 and 81 that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292. *** *** *** 21. Keeping the aforesaid authoritative pronouncements in mind, if the scheme of the Information Technology Act will have to be examined and given effect too. The said Act which is a special enactment so as to give fillip to the growth of electronic based transactions and to provide legal recognition for E-commerce and, to facilitate E-Governance and to Ensure Security Practice and Procedures in the context of the use of Information Technology Worldwide. The said enactment contains a full fledge mechanism for penalising certain acts which are committed without permission of the owner or any other persons who is in charge of a computer, computer system, or computer network and those acts are enumerated in Section 43. The said enactment also makes certain acts punishable and Chapter-XI of the Information Technology Act 2000 enumerates such acts. The same a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the same offence. It is always possible that the same set of facts can constitute offence under two different laws but a person cannot be punished twice for the said act which would constitute an offence. 23. The special leave petition against the said order was dismissed without any reasoned order but with the order The Special Leave Petitions are Dismissed . 24. Though, the Special Leave Petition against the order of the Bombay High Court was dismissed but in view of three Judge Bench judgment in Khoday Distilleries Ltd. and Ors. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd. (2019) 4 SCC 376, the dismissal of special leave petition does not amount to merger of the order of the High Court with the order passed in the Special Leave Petition. This Court held as under: 20. The Court thereafter analysed number of cases where orders of different nature were passed and dealt with these judgments by classifying them in the following categories: (i) Dismissal at the stage of special leave petition--without reasons--no res judicata, no merger. [Proposition based on judgments in Workmen v. Cochin Port Trust, (1978) 3 SCC 119; Western India Match Co. Ltd. v. Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andards Act, 2006 being a specific provision made in the special enactment but still an offence Under Section 188 of Indian Penal Code is made out. The Court held as under: 8. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence [T.S. Baliah v. T.S. Rengachari- (1969) 3 SCR 65]. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the Indian Penal Code and at the same time, an offence under any other law [State of Bihar v. Murad Ali Khan- (1988) 4 SCC 655]. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows: Provisions as to offences punishable under two or more enactments-Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 420 Indian Penal Code is a serious one as the sentence of 7 years can be imposed. 38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under Indian Penal Code. In the case under the NI Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under Indian Penal Code. The case under the NI Act can only be initiated by fling a complaint. However, in a case under Indian Penal Code such a condition is not necessary. 39. There may be some overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions. 30. This Court in Sangeetaben Mahendrabhai Patel has upheld the prosecution for an offence Under Section 420 Indian Penal Code even when the prosecution Under Section 138 of NI Act was lodged earlier. This Court has held that for an offence Under Section 420 Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy (Edmond v. United States [Edmond v. United States, 137 L Ed 2d 917: 520 US 651 (1997)], Warden v. Marrero [Warden v. Marrero, 41 L Ed 2d 383: 417 US 653 (1974)]). xx xx xx 47. Similarly, in R.S. Raghunath v. State of Karnataka [R.S. Raghunath v. State of Karnataka, (1992) 1 SCC 335: 1992 SCC (L S) 286], the non obstante Clause contained in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atent conflict or inconsistency at all between the General and the Special Rules. 34. In the light of principles laid down, we find that Section 3 of the Act completely overrides the provisions of Chapter XIII of Indian Penal Code in respect of the offences and penalties imposable for violations of the provisions of the Act, it being special Act. Therefore, if the offence is disclosed to be made out under the provisions of the Act, an Accused cannot be charged for the same offence under Chapter XIII of Indian Penal Code. Reading of Section 51 of the Act makes it clear that the provisions of Indian Penal Code insofar as they relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under the Act. Therefore, the provisions of Indian Penal Code which relate to offences with regard to weight and measure as contained in Chapter XIII of Indian Penal Code alone will not apply. No person can be charged for an offence relating to weight or measure falling under Chapter XIII of Indian Penal Code in view of the provisions of the Act. 35. The scheme of the Act is for the offences for use of weights and measures which are non-standard and for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with law. Crl. Appeal No. of 2019 (@SLP (Criminal) No. 3321 of 2018) 37. Leave granted. 38. The challenge in the present appeal is to an order passed by the High Court of Allahabad at Lucknow on November 24, 2017 whereby, petition Under Section 482 of the Code for quashing of Crime No. 0313, P.S. Hasanganj dated April 28, 2017 for the offences Under Sections 265, 267, 420, 467, 468 and 34 Indian Penal Code and Sections 3 and 7 of the Act, 1955 and Section 26/30 of the Act, filed by the Appellant who is being prosecuted, was dismissed. 39. The present appeal was posted for final hearing along with Criminal Appeals arising out of SLP (Criminal) Nos. 9981-9982 of 2017 and 1912-1913 of 2018. In the aforesaid case, it has been held that the offence under Chapter XIII of Indian Penal Code cannot be lodged in view of the provisions of the Act whereas the prosecution under other offences of Indian Penal Code has been found to be maintainable. 40. In view of the said fact, the present appeal is partly allowed. The offences Under Sections 265 and 267 Indian Penal Code are quashed in view of the reasons recorded in the aforesaid appeals. - - TaxTMI - TMITax - India ..... X X X X Extracts X X X X X X X X Extracts X X X X
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