Arun Singhvi vs State

S.N. Phukan, J.—This revision petition is directed against the judgment of the Additional Sessions Judge, Sonitpur at Tezpur in Crl. Appeal No. l7(S-2) of 1989 affirming the order of conviction and sentence passed by learned Judicial Magistrate, Tezpur in C.R. Case No. 281/89.

On 4.5.89 a mobile court was concluded at Tezpur town by the Judicial Magistrate and in the present case he accused-Petitioner was found guilty u/s 23 of the Assam Weights & Measures (Enforcement) Act, 1958, for short--Assam Act. The accused pleaded guilty and accordingly he was convicted and sentenced to fine of Rs. 300/-. While conducting the mobile court an offence report was submitted before the trial court as the accused-Petitioner was found in possession of a non-matric tailor''s tap. The offences was explained and the accused pleaded guilty.

The lower appellate court rejected the contention made on behalf of the accused that using of nonstandard measure that is, tailor''s tap cannot be brought within the provisions of Section 23 of the Assam Act. Lower appellate court also rejected the contention on behalf of the accused that from the seizure list it would appear that in the tailor''s tap both centimeter and inch were used and as such it cannot be stated to be non-standard one. The learned lower appellate court also considered Section 375 Code of Criminal Procedure as the accused pleaded guilty. On the above grounds, the appeal was rejected.

It is true that u/s 375 Code of Criminal Procedure no appeal lies, if the conviction by the court of Sessions or Magistrate where the accused pleads guilty except as to the extent of legality of the sentence (emphasis supplied). The words "extent of legality of the sentence" are wide enough and if it is found that the sentence was made without following the provisions of law, it is liable to be set aside.

I may accept here that in a mobile court, the procedure laid down by Code of Criminal Procedure must be followed and if it is not so done, both the conviction and sentence are liable to set aside.

The first contention of Mr. Khetri is that the accused-Petitioner was convicted u/s 23 of the Assam Act for violation of Section 7 of the said Act. But, Assam Act was enacted for enforcement of Standards of Weights and Measures Act, 1956 (Central Act 89 of 1956) but this Central Act is no longer in force and it has been repealed by Standards of Weights & Measures Act, 1976, (Act 6 of 1976) for short the Central Act. What Mr. Khetri wants to impress upon this Court is that as the Central Act of 1956 is no longer in existence, the Assam Act of 1958 cannot be enforced.

Clause (f) of Section 2 of the Assam Act defines "standard weight or measure", and according to the said definition, this term means in unit, mass or measure referred to in Sub-section (1) of Section 13 of the Central Act (Act 89 or 1956). Section 7 of the Assam Act inter alia, provides that no unit or mass or measure other than standard weights and measures shall be used in any transaction for trade or commerce in any area or classes of goods or undertakings the respect of which the Act has come into force or be kept in any premises where such transaction are usually conducted. Section 23 of the Assam Act provides for penalty. According to the said section, whoever sell or causes to be sold or deliver or causes to be delivered in case of any transaction for made or commerce any article by any denomination of weight and measure other than one of the standards of weights and measures, shall be punishable for the first offence with fine which may extend to Rs. 1000/- and for the second or subsequent to offence with imprisonment for a period which may extend to 3 months or fine or both.

Thus it appears that the Assam Act was for enforcement of Standards of Weights & Measures as defined in the Central Act. Though the Central Act has been repealed by the new Act of 1976, in my opinion, it would not alter the provisions of Assam Act, inasmuch as, after repeal the new Act of 1976 was re-enacted as such Central Act is necessary for the purpose of definition of standard of weights & measures. In Chapter I of Part II of the Central Act standards of units have been stated. According to Section 5 of the Central Act of 1976 basic unit of length shall be meter, According to Section 14 of the said Act basic unit of mass and measure as defined in Sections 5 to 11 shall be standard units of weight and measure as the case may be, According to Section 20 of the said Central Act, any weight or measure which conforms to the standard unit of such weight or measure shall be standard weight or measure. Section 21 of the said Central Act provides that no weight, measure or numeral other than standard weight, measure or numeral shall be used as standard weight, measure or numeral.

Above provisions of the Central Act of 1976 is to be now read with provisions of the Assam Act of 1958 as the old Central Act of 1956 has been replaced by the above new Act. Therefore, prohibition of using measure other than standard weights or measures is prohibited u/s 7 of the Assam Act and for such violation Section 23 of the Assam Act would apply. Therefore the contention of Mr. Khetri that reading Assam Act with the new Central Act of 1976 no offence is made out, has no force.

Drawing attention of this Court to the seizure list which is available in the record of the trial court, Mr. Khetri has urged that the tap cannot be said to be a non-standard as length was mentioned both in centimeters and in inches. In other words, according to Mr. Khetri it was standard measurement and inch was given as a matter of reference. This contention of the learned Counsel has force as in the seizure list the following has been recorded.

"Length below 150 c.m./60 inch." This Court can take judicial notice of the fact that even though Government has adopted matric system, the people even now while mentioning the measurement of any length or weight use the term inch/feet/mile etc. It is common knowledge that in a mobile court an accused does not get any chance to be defended and thereby he is deprived of proper legal assistance, as mobile courts are held outside the normal court campus and sometime outside the normal count hours. While examining the accused u/s 313 Code of Criminal Procedure the trial court has put general question regarding use of non-matric tap, but it was not put to the accused that in the tap in question both centimeters and inches were mentioned. This aspect of the matter was also not considered while convicting and sentencing the accused by the trial court. In view of this, I am of the opinion that there was illegality in sentencing the accused, and as such, this Court can exercise the revisional jurisdiction, notwithstanding the provisions of Section 375 Code of Criminal Procedure.

For what has been stated above, I find merit in the petition. Accordingly the petition is allowed and the conviction and sentence are set aside. The confiscated tap may be destroyed.

The accused-Petitioner is discharged from the liability of bailbond. Fine if realised shall be refunded.