1 471.11 CWP IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 471 OF 11 S.C. Johnson Products Private Limited Having its registered office at N 69, M Block Market, Greater Kailash II, New Delhi 110 048 through C.B. Singh, Age 40, Occu. Area sales Manager, R/o C/o Flat No. 102, Vaishnavi Enclave, Katol Road, Raj Nagar, Nagpur PETITIONER VERSUS 1] The State of Maharashtra 2] The Inspector, Weights and Measures Weight and Measures office Subhash Chowk Jalna, Dist. Jalna RESPONDENTS ..... Shri C.R. Deshpande, Advocate for petitioner Smt. R.K. Ladda, APP for the respondents /State ..... CORAM : U.D. SALVI, J. DATED : 9 th November, 2011. ORAL JUDGMENT : 1. Heard. Perused. Rule made returnable forthwith. Taken up for final hearing by mutual consent. 2 471.11 CWP 2. Petitioner / S.C. Johnson Products Private Limited is praying for quashing of the S.T.C. No. 722/2010 lodged by respondent No. 1- the Inspector, Weights and Measures, Jalna, in the Court of learned VIIth Judicial Magistrate First Class, Jalna under Section 39 of the Standards of Weights and Measures Act, 1976 (for short ‘the said Act’). 3. According to the petitioner, proceedings S.T.C. No. 722/2010 under section 39 of the said Act deserves to be quashed and set aside on the following grounds. I] The complaint does not disclose the said Act and Packaged Commodities Rules ( for short ‘said Rules’) framed thereunder. ii] Section 202(1) of the Criminal Procedure Code, 1973 mandates an enquiry before issuance of process, in a case where the accused is shown to be residing outside the territorial jurisdiction and as such enquiry had not been conducted. 3 471.11 CWP iii] Three are no specific allegations regarding complicity of Mr. C.B. Singh arrayed as accused in the complaint. 4. Learned Advocate Shri C.R. Deshpande for the petitioner with reference to definition of ‘wholesale package’ available in Rule 2(x) of the said Rules submitted that the packing referred in the complaint as the offending one i.e. violative of Rule 29 of the said Rules was not the one as sold by the petitioner company as ‘wholesale package’. But was a transport packing a portion of the wholesale package. He submitted that each bunch of transport packing containing 20 or so retail packages, packed and wrapped together form a wholesale package, which was actually sold by the petitioner company to wholesale dealers and as such the petitioner company cannot be held liable for the alleged infringement of Rule 29 of the said Rules. With reference to Section 202 of the Criminal Procedure Code, 1973, the learned Advocate Shri C.R. Deshpande for the petitioner, submitted that it was incumbent upon the learned Magistrate to have postponed the issuance of process against the accused / C.B. Singh who was shown to have been residing at a place beyond his territorial jurisdiction and either inquired into the complaint or directed an investigation made by a police officer for the purpose of deciding whether or not there are sufficient grounds for proceeding. He 4 471.11 CWP further submitted that such safe guard in relation to the accused residing outside the jurisdiction of the Court has been incorporated in the statute, in order to have a check on harassment of the innocent persons residing distinct place at the hands of unscrupulous complainants. He further submitted that such enquiry could have brought to light the exact role of the accused-C.B. Singh in the alleged crime. 5. Inviting attention to the Section 74 of the said Act, he submitted that it was the duty of the complainant to show how the accused-C.B. Singh was in-charge of, and was responsible to the company for the conduct of the business of the company or how the offence is attributable to the accused-C.B. Singh. 6. Without going into the controversies over the ‘wholesale packaging’ as it needs to be answered in the trial. It can be seen from the order issuing the process passed below the complaint (Exhibit A) that the learned Magistrate had directly issued the process against the accused-C.B.Singh who is shown to be resident of New Delhi, a place outside his territorial jurisdiction, regardless of mandate of Section 202 of the Criminal Procedure Code, 1973. Section 202 of the Criminal Procedure Code, 1973 5 471.11 CWP mandates an enquiry before the Magistrate issues the process against the accused residing outside his territorial jurisdiction. 7. Learned APP Smt. R.K. Ladda, conceded to this position of law and sought remand of the case before the learned Magistrate for conducting necessary enquiry as contemplated in under Section 202 of the Criminal Procedure Code, 1973. ORDER [i] Order dated 04-02-2011 passed by the VIIth Judicial Magistrate First Class, Jalna in complaint STC No. 722/2010, issuing process against the accused No. 1-C.B. Singh is quashed and set aside. [ii] Learned Magistrate is directed to conduct enquiry before issuance of process for the purpose of deciding whether or not there are sufficient grounds for proceeding and thereafter, pass the appropriate order in accordance with law. The complainant to appear before the learned Magistrate on the given date by the learned Magistrate. Rule is made absolute in above terms. ( U.D. SALVI, J. ) SDM* November-11