IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH AUGUST 2009 / 28TH SRAVANA 1931 Crl.MC.No. 1947 of 2009() ------------------------- CC.794/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... PETITIONER(S): ACCUSED NOS.1 TO 6: ---------------------------------------------------------- 1. BADUSHA, AGED 45 YEARS, S/O.ABDUL KHADER, BLAYIPARAMBIL HOUSE, EDAPPILLY NORTH VILLAGE, ERNAKULAM. 2. JOSHY, AGED 38, S/O.VARKEY, KANDATHIL HOUSE, VAZHAKKALA, ERNAKULAM. 3. VARGHESE, AGED 51, S/O.VARKEY, KIZHIPPALLI VEEDU, VAZHAKKALA, ERNAKULAM. 4. MUHAMMED SHAKKEER, AGED 44, S/O.PAREEKUTTY, CHERIYIL HOUSE, VAZHAKKALA, ERNAKULAM. 5. GEORGE, AGED 47, S/O.ANTONY, THARAMEL HOUSE, VAZHAKKALA, ERNAKULAM. 6. SABU JOSEPH, AGED 42, S/O.JOSEPH, NIRAPPUKATTIL HOUSE, VAZHAKKALA, ERNAKULAM. BY ADV.MR.JAISON JOSEPH RESPONDENT(S): STATE & COMPLAINANT: ----------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. INSPECTOR OF LEGAL METROLOGY, ERNAKULAM CIRCLE - II, KAKKANAD – 682 030. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1947 of 2009 -------------------------- ORDER Petitioners are the accused in C.C.No.794/2006 on the file of Judicial First Class Magistrate's Court-I, Aluva. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings. Learned Magistrate took cognizance of the offences on Annexure- A1 complaint filed by the second respondent, Inspector of Legal Metrology. Allegation in Annexure-A1 complaint is that on 17.7.2001, second respondent, along with Assistant Controller of Legal Metrology (Flying Squad), Ernakulam, inspected the trade premises of M/s.Blayees Duty Paid Shop, Vazhakkala and detected that first accused had stored and exhibited for sale packages, which did not bear the declarations as required under Rule 6(1) of Standards of Weights and Measures (Packages Commodities) Rules, 1977 read with Section 39 of Standards of Weights and Measures Act, 1976 and Section 33 of Standards of Weights and Measures (Enforcement)Act, 1985 and there is violation CRMC 1947/09 2 of Rules 4, 6(1) and 23(1) of Standards of Weights and Measures (Packaged Commodities) Rules 1977. 2. Prosecution case is that petitioners prevented and obstructed second respondent and other officers of Legal Metrology from seizing the false packages and prevented them from exercising the powers and discharging the functions conferred under the Provisions of Standards of Weights and Measures Act, 1976 and Standards of Weights and Measures (Enforcement) Act, 1985 and thereby committed the alleged offences. Case of the petitioners is that in respect of the very same incident, Crime No.151/2001 of Thrikkakara Police Station was registered for the offences under Sections 143, 147, 342, 294(b) and 353 read with Section 149 of Indian Penal Code and as seen from Annexure-A2 final report in that case and the allegations in the complaint are identical. It is contended that though petitioners were tried by Judicial First Class Magistrate-I, Aluva on Annexure-A2 final report, under Annexure-A3 judgment, they were acquitted and therefore, continuation of proceedings in respect of the same incident and that too on the same allegations is only an abuse of process of the court CRMC 1947/09 3 and is to be quashed. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Argument of the learned counsel appearing for the petitioners is that police submitted Annexure-A2 charge sheet on identical facts in respect of the same incident and under Annexure-A3 judgment, whereby petitioners were acquitted by the learned Magistrate, even if petitioners are to be tried in C.C.No.794/2006, there is no chance of a successful conviction and in such circumstances, it is only an abuse of process of the court and is to be quashed. 4. Learned Public Prosecutor pointed out that the offences, taken cognizance by the learned Magistrate on the basis of Annexure-A1 complaint, are only offences provided under Standards of Weights and Measures Act, 1976, Standards of Weights and Measures (Enforcement) Act, 1985 and Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and petitioners were not tried for the said offences in C.C.No.1836/2002 and therefore, for the reason that petitioners were acquitted under Annexure-A3 judgment the case cannot be quashed. CRMC 1947/09 4 5. On hearing the learned counsel appearing for the petitioners and learned Public prosecutor, I cannot agree with the submissions of the learned counsel that for the reason that petitioners were tried and acquitted in C.C.No.1836/2002, the proceedings in C.C. No.794/2006 is to be quashed. If the ingredients of the offences tried by the learned Magistrate in C.C.No. 1836/2002 and the ingredients of the offences being tried in C.C.No.794/2006 are the same, it could have been said that continuation of the proceedings in C.C. No.794/2006 is an abuse of process of the court or that when petitioners, on the very same set of facts, were acquitted under Annexure-A3 judgment, there is no possibility of a conviction even if petitioners are to be tried in C.C.No.794/2006 and therefore, this Court has to invoke the extraordinary inherent power under Section 482 of Code of Criminal Procedure. But, that is not the case herein. Petitioners were tried for the offences under Sections 143, 147, 342, 294(b) and 353 read with Section 149 of Indian Penal Code. Though learned counsel appearing for the petitioners submitted that ingredients of the offence under Section 353 of Indian Penal Code and ingredients of the offences being CRMC 1947/09 5 tried in C.C.No.794/2006 are the same, I cannot agree with the submission. 6. An offence under Section 353 of Indian Penal Code is attracted only if petitioners have assaulted or used criminal force to any person being a public servant in execution of his duty as a public servant or with intent to prevent or deter that person from discharging his duty as a public servant or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as a public servant. Therefore, if there is no evidence to establish assault or use by criminal force, petitioners could only be acquitted for the offence under Section 353 of Indian Penal Code. 7. Section 50 of Standards of Weights and Measures (Enforcement) Act, 1985 provides penalty for contravention of Sections 30 and 31. Under Section 50, whoever prevents the Controller or any officer authorised by the Controller from searching any premises or prevents any Inspector from making any seizure of any weight, measure, packaged commodity, goods, documents, records or label shall be punishable for the said offence. Therefore, even if there was no CRMC 1947/09 6 use of criminal force or assault, if the Controller or any officer authorised by the Controller was prevented from searching or making seizure, the offence is attracted. Therefore, the ingredients are different. Hence, for the reason that petitioners were acquitted for the offence under Section 353 of Indian Penal Code, it cannot be said that petitioners shall, necessarily, be acquitted for the offence under Section 50 of the Act. Whether there are evidence to convict the petitioners or not is to be looked into by the Magistrate at the time of trial. But, for the reason that petitioners were earlier tried and acquitted for the offences under the provsiions of Indian Penal Code, prosecution for the offences under Standards of Weights and Measures Act, 1976 and Standards of Weights and Measures (Enforcement)Act, 1985 cannot be quashed as sought for. Petition is dismissed. Petitioners are entitled to take up all the contentions raised herein before the learned Magistrate. 19th August, 2009 (M.Sasidharan Nambiar, Judge) tkv