IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 CRL.MC.NO. 218 OF 2011() -------------------------------------- CC.1756/2009 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): ---------------------- 1. C.L.ANTONY,S/O.LONAPPAN, CHITHALN HOUSE KORATTY SOUTH PO, THRISSUR. 2. PRADEEO ANTONY, S/O.ANTONY RESIDING DO... 3. PRIYA C.A.,D/O.LONAPPAN, RESIDING DO... BY ADV. SRI.P.K.ANIL RESPONDENT(S): ------------------------- 1. CONTROLLER OF LEGAL METROLOGY THIRUVANANTHAPURAM. 2. SENIOR INSPECTOR LEGAL METROLOGY (VT) ERNAKULAM 3. STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SHRI PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No. 218 of 2011 ==================================== Dated this the 02nd day of February, 2011 O R D E R Petitioners are accused in C.C .No.1756 of 2009 of the court of learned Judicial First Class Magistrate-I, Aluva. That case is based on Annexure-III, complaint filed by respondent No.2 alleging commission of offence punishable under Section 63 of the Standards of Weights and Measures (Enforcement) Act (for short, “the Act”) for alleged violation of Sec.37(1)(vii) of the Act. Petitioners are owners of tanker lorries on contract with Bharat Petroleum Corporation Limited for transportation of aviation turbine fuel from Kochi Refinery to the fueling station at Nedumbassery. Respondent No.2 is said to have inspected the vehicles at the premises of the Corporation and found that cylindrical clandestine tank was unauthorisedly fitted in the tanks of the vehicles allegedly for the purpose of pilferation of fuel. It is accordingly that complaint was preferred. Contention raised by petitioners is that what is involved is only offence under Sec.38 of the Act and that no offence under Sec.63 read with Sec.37(1)(vii) of the Act would lie. It is also complained that earlier directions issued by this court have not been complied by the learned CRL.M.C. No.218 of 2011 -: 2 :- Magistrate. I have heard learned counsel for petitioners and the learned Public Prosecutor. 2. It is seen from Annexure-IV, order dated January 11, 2010 in Crl. M.C. No.4105 of 2009 of this Court that same argument was advanced and learned Judge observed that learned Magistrate has already taken cognizance of the offence, issued summons to the petitioners and that it is for the Magistrate to consider whether offence alleged came under Sec.37(1)(vii) of the Act as pleaded by respondent No.2 or it came under Sec.38 of the Act as pleaded by the petitioners. Petitioners were given liberty to raise the question before learned Magistrate. Learned Magistrate was directed to consider the question before charge is framed/particulars of offence are read over, as the case may be. Petitioners then filed Crl. M.C. No.2193 of 2010 in this Court seeking a direction to the learned Magistrate to consider the question. Learned Judge as per Annexure-V, order dated June 18, 2010 observed that learned Magistrate shall decide as to the offence which is actually made out in the case within a month from the date of receipt of that order and thereupon shall proceed with the matter. Learned counsel submitted that the said order has not been complied. 3. If, as submitted by learned counsel the order of this CRL.M.C. No.218 of 2011 -: 3 :- Court has not been complied by the learned Magistrate it is a serious matter. But I do not intend to proceed in the matter as if the order of this Court has been violated. I make it clear that when a superior court issues direction, the subordinate court is bound to comply with the same and there shall not be any excuse. If there was any difficulty in complying with the direction the court concerned ought to have approached this Court. I do not intend to express anything further in the matter. 4. As observed in Annexure-V, order referred to above I direct that the learned Magistrate has to consider whether offence involved comes under Sec.37(1)(vii) of the Act as pleaded by respondent No.2 or it came under Sec.38 of the Act as pleaded by petitioners. Learned Magistrate shall hear the parties before proceeding to frame charge/read over particulars of the offence as the case may be, against petitioners. This shall be done within one month from the date of receipt of a copy of this order, without fail. Criminal Miscellaneous Case is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv