TaxTMI 
TaxTMI 
2019 (9) TMI 1632
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....e Station Cantt, Lucknow for the offences punishable Under Sections 265, 267, 420, 34, 120-B of the Indian Penal Code, 1860 Indian Penal Code and Sections 3/7 of the Essential Commodities Act, 1955 Act, 1955 in respect of short delivery of petrol and diesel by 200-220 ml. on each sale of 5 liters. 4. On April 27, 2017, the Special Task Force STF of the State Police took up the investigation into the commission of offence viz. short delivery of petroleum products i.e. high-speed diesel and motor spirit at various retail outlets operating within the city of Lucknow. The STF with the aid of officers of the Department of Weight and Measures and the District Administration raided the premises of the retail outlets. The team found that 15 nozzles connected to four machines i.e. dispensing units with seals intact were operative and functional. The testing was carried out in the presence of Apar Nagar Magistrate, two Inspectors of Weights and Measures Department and the partners of the firm M/s. Shiv Narain & Sons and its Manager. As per the inspection memo recorded on April 27, 2017, out of 15 nozzles, 10 nozzles were used for sale of petrol and the remaining 5 nozzles were used for sa....
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....rate has taken cognizance of an offence Under Section 30 of the Act. 7. It is thereafter two applications were filed Under Sections 167(2) and 190(1) of the Code of Criminal Procedure, 1973 Code on July 26, 2017 on the ground that the prosecution has no material making out a case of offences mentioned in the chargesheet, therefore, the cognizance may not be taken. The learned Magistrate rejected both the applications on July 27, 2017. It is thereafter the petition was filed Under Section 482 of the Code before the High Court, which was decided by an order impugned in the present appeal. The High Court has passed a detailed order examining the following questions of law: (i) Whether in view of the promulgation of Legal Metrology Act, 2009, the offences relating to weights and measures particularly short delivery of petroleum products sold to the public at large through dispensing machines, are open to be registered and investigated by the police authorities in terms of the provisions of Indian Penal Code and Code of Criminal Procedure or the provisions of Indian Penal Code and Code of Criminal Procedure for the said purpose would stand ousted/obliterated/eclipsed by virt....
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.... the Special Act or Section 26 once noticed against any offender, as is the situation in the present case, it would not attract violation of Section 264 to 267 Indian Penal Code at all and the prosecution is bound to be guided by the relevant provisions under the Special Act. The Special Act has replaced the entire Chapter by defining the offences of all descriptions and classified them in the nature of non-cognizable compoundable offences, as such, the procedure deserves to be applied accordingly as per the classification of offences against other laws in the first Schedule of Code of Criminal Procedure insofar as criminal prosecution is concerned. 10. The High Court ordered that the trial court has not taken cognizance of offence Under Sections 34, 120B, 471 of Indian Penal Code or 26 of the Act. Therefore, there is no reason as to why the Court may not take into account such materials for the purposes of taking cognizance of the offences, in the light of the orders passed on July 7, 2017 and August 17, 2017. The High Court held that Sections 467, 468, 471, 120-B and 34 of Indian Penal Code stand clearly attracted. 11. In respect of third question, the High Court directed t....
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....iod of 6 weeks from the date of submission of the samples. The reports so obtained may be filed in the respective courts by the investigating officer after endorsement by the District Judge; (v) The seized dispensing machines be released to the owner as soon as the residual stock in the underground tanks is handed over to the oil company concerned for which the oil company shall provide all the transport and custodial facility besides operational guidance to the investigating officer and learned District Judge, without asking for any remuneration; (vi) The investigating officer shall submit the supplementary report in terms of the observations made in this judgment not later than a period of two months, by taking over all the materials and record from the previous investigating officer in the form in which discovery and seizure were made; and (vii) The oil companies henceforth shall make use of collapsible pulsers essential in the dispensing machines in order to prevent malpractices. Thus, the State Government is directed to implement the installation of such a device in consultation with the oil companies within a planned time framework of not later than....
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....that the Act provides for the offences and penalties but reading of Sections 3 and 51 of the Act does not exclude the offences under the Indian Penal Code. The Act will override only those offences which are inconsistent with the offences under Indian Penal Code, except to the extent specified in the Act. 15. Learned Counsel for the State relied upon an order passed by this Court in State of Maharashtra v. Sayyed Hassan Criminal Appeal No. 1195 of 2018 decided on September 20, 2018 wherein, while interpreting the provisions of Food and Safety Standards Act, 2006, it was held that the provisions of the said Act is not the only provision that can be resorted to, the prosecution can be lodged for the offences under Indian Penal Code as well. Learned Counsel for the State also relied upon an order passed by this Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Anr. (2012) 7 SCC 621 wherein, for a dishonour of cheque, the prosecution for an offence Under Section 420 Indian Penal Code was found to be maintainable even after the prosecution Under Section 138 of the Negotiable Instruments Act, 1881 NI Act is lodged. It was held that the mens rea i.e. fraudulent or dishone....
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.... xx 3. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. xx xx &n....
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....a term which may extend to one year, or with fine, or with both. xx xx xx 51. The provisions of the Indian Penal Code and Section 153 of the Code of Criminal Procedure, 1973 in so far as such provisions relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under this Act. THE CODE OF CRIMINAL PROCEDURE, 1973 153. Inspection of weights and measures.-(1) Any officer in charge of a police station may, without a warrant, enter ....
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....under Indian Penal Code. 19. In Sharat Babu Digumarti, an FIR was lodged for the offences Under Sections 292 and 294 of Indian Penal Code and Section 67 of IT Act. This Court struck down the offences Under Sections 292 and 294 of Indian Penal Code in view of the provisions of Section 67 of the IT Act. 20. The question examined was as to whether an activity emanating from electronic form which may be obscene would be punishable Under Section 292 Indian Penal Code or Section 67 of the IT Act or both or any other provision of the IT Act. This Court held that Section 292 Indian Penal Code makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot be ignored and negated in view of special provision for a specific purpose. The IT Act has to be given effect to so as to make the protection effective and true to the legislative intent. The Court held as under: 31. Having noted the provisions, it has to be recapitulated that Section 67 clearly stipulates punishment for publishing, transmitting obscene materials in electronic form. The said provision read with Sections 67-A a....
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.... specific purpose and has observed that the mandate behind Section 81 of the Information Technology Act needs to be understood in its proper perspective. It referred to the earlier precedents on the point where a special statute is pitted against a General enactment and thereafter has concluded by making reference Section 79 and 81 that once the special provisions are accorded overriding effect to cover a criminal Act, the offender gets out of the net of the Indian Penal Code and in the case in hand of Section 292. *** *** *** 21. Keeping the....
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....is view has already been authored by their lordships in case of Sharat Babu Digumarti (Supra). 22. It may be noticed that Bombay High Court considered the judgment of this Court in Sayyed Hassan wherein this Court has held that an offence Under Section 188 of Indian Penal Code is wider in scope and did not cover only breach of law but is attracted in cases where the act complained of causes or tends to cause danger to human life, health or safety as well. The Court held as under: 24. The aforesaid judgment of the Hon'ble Apex Court is therefore clearly distinguishable on facts but even the said judgment of the Hon'ble Apex Court reiterates the settled position of law that where an act or an omission constitutes for an offence under two enactments the offender may be punished under either or both enactment but was not liable to be punished twice for the same offence. It is always possible that the same set of facts can constitute offence under two different laws but a person cannot be punished twice for the said act which would constitute an offence. 23. The special leave petition against the said order was dismissed without any reasoned order but with the ord....
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....(Kunhayammed case [Kunhayammed v. State of Kerala, (2000) 6 SCC 359], SCC p. 384) (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. 25. The Bombay High Court in Gagan Harsh Sharma has found that even a dishonest and fraudulent act falls within the scope of Section 66 of IT Act. We are not called upon in the present appeals to examine whether an Accused can be tried for an offence under Indian Penal Code in view of Section 66 of IT Act. Such question can be raised and decided in an appropriate case. 26. In Sayyed Hassan, the Court held that Section 55 of Food and Safety Standards Act, 2006 being a specific provision made in the special enactment but still an offence Under Section 188 of Indian Penal Code is made out. The Court held as under: 8. There is no bar to a trial or conviction of an offender under two different enactments, but ....
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....ining to the cheque for which proceedings were initiated Under Section 138 of the NI Act. In the said case, the Court held that there may be overlapping of facts in both the cases but the ingredients of the offences are entirely different. Thus, the subsequent case is not barred by any of the provisions of the NI Act. The Court held as under: 37. Admittedly, the Appellant had been tried earlier for the offences punishable under the provisions of Section 138 of the NI Act and the case is sub judice before the High Court. In the instant case, he is involved Under Sections 406/420 read with Section 114 Indian Penal Code. In the prosecution Under Section 138 of the NI Act, the mens rea i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under Indian Penal Code involved herein, the issue of mens rea may be relevant. The offence punishable Under Section 420 Indian Penal Code is a serious one as the sentence of 7 years can be imposed. 38. In the case under the NI Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebu....
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....XIII Indian Penal Code alone stand excluded in view of Section 51 of the Act. 33. It cannot be disputed that the Act is a special Act vis-à-vis Indian Penal Code. In Macquarie Bank Limited v. Shilpi Cable Technologies Limited (2018) 2 SCC 674, this Court adopted a doctrine of harmonious construction to hold that there was clear disharmony between the two parliamentary statutes which cannot be resolved by harmonious interpretation. This Court held as under: 44. Similarly, in CTO v. Binani Cements Ltd. [CTO v. Binani Cements Ltd., (2014) 8 SCC 319], the Rule of construction of two parliamentary statutes being harmoniously construed was laid down as follows: (SCC pp. 332-33, para 35) 35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes § 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if p....
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....n by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes clear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department. In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of the General Rules should be read together. If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. In a given case where there are no Special Rules then naturally the General Rules would be applicable. Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later ....
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....is the provision in respect of the offences Under Sections 467, 468, 471 Indian Penal Code as such offences are not covered by the provisions of the Act. 36. Thus, we partly allow the present appeals with the following directions: (i) Directions given by the High Court, as mentioned in para 11 above, are hereby quashed. (ii) We uphold the order of the High Court that the offences Under Sections 265 and 267 Indian Penal Code are liable to be quashed. (iii) The directions of the High Court in proceedings Under Section 482 of the Code against the interest of the Accused in a petition filed by the Accused are beyond the jurisdiction of the High Court and, thus, all such observations and directions are quashed. (iv) The directions issued by the High Court that the erring officers/officials named in the supplementary report shall be subject to disciplinary action are again beyond the scope of the High Court in a petition Under Section 482 of the Code seeking quashing of the charge-sheet and are, thus, quashed. (v) It is open to the investigating agency to charge the Accused for such offences or any other offence by way of a supplementary re....