IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.31155 of 2007 RAJ KUMAR AGRAWAL, Son of Sri Nand Lal Agrawal, resident of Mohalla- New Market Road, Katihar, District- Katihar. . . . . Petitioner. Versus THE STATE OF BIHAR & ORS ----------- 7/ 04.05.2010 Heard learned counsel for the petitioner and the State. The petitioner has prayed for quashing the entire criminal proceeding including the order dated 13.03.2007 passed by Chief Judicial Magistrate, Katihar in Complaint Case no. C II Case No. 63 of 2007 / Tr. No. 1774 of 2007 by which learned Magistrate has been pleased to take cognizance under Section 39 of the Weights and Measure Act, 1976 (hereinafter referred to as Act, 1976). The petitioner is proprietor of a retail shop, namely M/s Roop-Rang situated at New Market Road in the town and district Katihar. The petitioner had purchased six packets of Carefree Sanitary Napkins containing 10 pieces in each packet from a local wholesale dealer M/s Agrawal Brothers, Mangal Bazar, Katihar under cash memo no. 538 dated 05.07.2002. The opposite party no.-3, Assistant Controller, visited the petitioner’s retail shop on 05.08.2002 and seized the Carefree Sanitary Napkins under the Standards of Weights and Measure Act, 1976, the standards of Weights and Measure (Enforcement) Act, 1985 and Packaged Commodities Rules, 1977 without mentioning any specific provision in the seizure list. The only allegation was that the size of Sanitary Napkin has not been mentioned in Metric System. After 4½ years, on 08.03.2007, opposite party no.4, - 2 - Inspector, Weights and Measure, Katihar filed a prosecution report in the court of learned Chief Judicial Magistrate, Katihar for prosecution under Section 39 of the Weights and Measure Act for violation of Rule 12(6)(ii) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Learned counsel for the petitioner has assailed the impugned order on the following grounds: Firstly; The instant prosecution is vexatious, as the same has been filed after 4 ½ years of the inspection and seizure, Secondly; The Napkins would not be covered under the term Napkin used in Rule 12 to 18 of the Standards of Weights and Measures (Packaged Commodities) Rules 1977, as in the context, it necessarily refers to textile Napkins and not Sanitary Napkins, Thirdly; The prosecution is defective for non-making of the manufacturer also an accused. In this context, learned counsel has relied upon decisions in the case of Md. Izhar Vs. The State of Bihar reported in 2009(3) PLJR 136 and also in the case of Md. Izhar Vs. The State of Bihar reported in 2009(4) PLJR 405. Learned counsel submits that though the decisions were expressed in respect of offence under the Food Adulteration Act, but the ratio laid down would also cover the facts of the instant case. He further submits that the offence is also compoundable. Counsel for the State opposes the quashing application and submits that Napkin used in Rule 12 to 18 would also cover Carefree Napkins. - 3 - The first point raised by the petitioner is that the prosecution is vexatious and malicious, as the same has been initiated after 4 ½ years of seizure of the Napkins on 05.08.2002. The contention seems to have substance. It would appear that the Napkins were seized on 05.08.2002 by opposite party no.3, Assistant Controller, Legal Metrology, Bihar, Patna. However, the prosecution was launched on 08.03.2007 and that too by the successor Inspector, one Shri Lal Babu Sao, Weights and Measure, Katihar. No explanation has been furnished for the abnormal delay in lodging the prosecution case. As such, the impugned prosecution is bad and liable to be quashed on this ground alone. As the petitioner has succeeded on the first point itself, this Court need not go into other issues. In the result, this application is allowed and the impugned order taking cognizance is set aside. Uday/ (Samarendra Pratap Singh, J.)