IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 W.A.No.162 of 2004 ---------------------------------- AGAINST THE JUDGEMENT IN O.P.NO.10761/1993 DATED 03/03/2003 .................... APPELLANTS: RESPONDENTS 1TO 3 IN THE O.P.:- -------------------------------------------------------------------------- 1. INSPECTOR OF LEGAL METROLOGY, KOCHI. 2. THE CONTROLLER OF LEGAL METROLOGY, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY. BY SENIOR GOVERNMENT PLEADER SMT.K.MEERA. RESPONDENTS: PETITIONER & RESPONDENT 4 IN THE O.P.:- ------------------------------------------------------------------------------------------- 1. R.PASUPATHY, GENERAL MANAGER, MALABAR HOTEL, WELLINGTON ISLAND, KOCHI 682 009. 2. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE MINISTRY OF CIVIL SUPPLIES, CONSUMER AFFAIRS AND PUBLIC DISTRIBUTION, NEW DELHI. R1 BY ADV. SRI.A.M.SHAFFIQUE (SR.), SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.ANIL D.NAIR. R2 BY ASSISTANT SOLICITOR GENERAL OF INDIA SRI.P.PARAMESWARAN NAIR. ADV.SRI.V.SANTHARAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.Dattu, C.J. & A.K.Basheer, J. -------------------------------------------- W.A.No.162 of 2004 --------------------------------------------- Dated, this the 8th day of July, 2008 JUDGMENT H.L.Dattu, C.J. Though the matter is posted for admission, by consent of both the learned counsels, the matter is taken up for final hearing, since the issue involved in this Writ Appeal lies in a narrow compass. 2. In the Original Petition filed, the petitioner had called in question Exhibit P1 notice issued by the Inspector, Legal Metrology, Kochi dated 2.7.1993 and Ext.P3 order passed pursuant thereto. In the said notice, it was informed to the petitioner certain defects said to have been noticed by them at the time of surprise inspection of the petitioner's business premises. The defects are: “1. 60 ml. Dubonnet sold was on measurement found to be less by 4 ml. 2. The certificate of verification was not exhibited in the Bar. 3. A packet of Wills Filter Cigarette was sold for Rs.13/-”. 3. After receipt of the said notice, the petitioner had offered his explanation, by his reply letter dated 19.7.1993 and, in that, had brought to the notice of the authority that the defects pointed out are trivial in nature and in the line of business the petitioner is conducting, such things do W.A.No.162 of 2004 2 happen and, therefore, requested the authority to drop the proceedings. 4. After receipt of the reply so filed, the first respondent by his order dated 2.7.1993 (Exhibit P3) has only observed that the explanation offered by the petitioner is not satisfactory and, therefore, either the petitioner should compound the offence departmentally or face the prosecution. 5. Aggrieved by Exhibit P1 notice and Exhibit P3 order, petitioner was before this Court. The learned Single Judge, has allowed the Original Petition and has quashed Exhibits P1 and P3. 6. The State, being aggrieved by the orders passed by the learned Single Judge, is before us in this Writ Appeal. 7. Smt.K.Meera, learned counsel appearing for the Revenue, would submit that the learned Single Judge ought not to have quashed Ext.P1 notice and Exhibit P3 order passed by the first respondent, for the reason, that, in Exhibit P3 the authority had only stated that the explanation offered by the petitioner is not satisfactory and, therefore, either he will pay up the compounding fee or face prosecution. 8. The primary contention of the petitioner before the learned Single Judge was that the 1st respondent, without considering the explanation offered by him, had directed him either to compound the offence departmentally or face prosecution. In our opinion, if for any W.A.No.162 of 2004 3 reason the learned Single Judge was of the opinion that the explanation offered by the petitioner had not been properly considered by the first respondent, he ought to have quashed the said order and directed the authority to consider the explanation offered by the petitioner in its proper perspective and pass a speaking order. That has not been done by the learned Single Judge. In fact, the learned Single Judge has allowed the writ petition without even remanding the matter to the 1st respondent. In our opinion, in a case of this nature, if for any reason the learned Single Judge was of the opinion that the explanation offered by the petitioner is not considered properly while passing Exhibit P3 order, the learned Single Judge ought to have quashed the said order and should have remanded the matter to the said authority to redo the matter in accordance with law. 9. In that view of the matter, we have no other alternative, but to allow the Writ Appeal, set aside the orders passed by the learned Single Judge and then direct the 1st respondent-authority to consider the explanation offered by the petitioner (Exhibit P2) and to pass appropriate orders in accordance with law. 10. Accordingly, we pass the following: Order (i) The Writ Appeal is allowed. (ii) The impugned order passed by the learned Single Judge in W.A.No.162 of 2004 4 O.P.No.10761 of 1993 dated 3/3/2003 is set aside. (iii) Exhibit P3 order passed by the 1st respondent-authority dated 2.7.1993 is quashed. (iv) The matter is now remanded back to the 1st respondent/successor in office, to consider Exhibit P2 explanation offered by the petitioner in accordance with law and pass a speaking order, after affording an opportunity of hearing to the petitioner. (v) All the contentions of the parties are left open. Ordered accordingly. (H.L.Dattu) Chief Justice (A.K.Basheer) Judge vku/dk