Kashi Prasad Rajgarhia vs State of Bihar and Another

Lalit Mohan Sharma, J.—The Chief Judicial Magistrate, Monghyr, has by his order dated 26.2.1975, taken cognizance u/s 28 of the Bihar Weights and Measures (Enforcement) Act, 1959 (hereinafter referred to as ''the Act'') against the petitioner and has summoned him. The petitioner has moved this Court u/s 482 of the Code of Criminal Procedure, 1973, for quashing the proceeding on the ground that the complaint petition filed by opposite party No. 2 does not disclose any criminal offence.

It has been stated in the complaint petition that Lifebuoy soaps were being sold in the shop belonging to the petitioner without mentioning the net weight and, therefore, the provision of Section 14 of the Act had been contravened.

Mr. Rajgarhia, appearing for the petitioner has inter alia, contended that the allegation, even if accepted to be correct, does not prove violation of Section 14 which is in the following terms:

Marking of weight or measure on packages and containers.-No person shall sell, offer for sale, expose for sale, or have in his possession for sale, any article contained in a package or container, unless such package or container bears thereon, or on a label securely attached thereto, a description of the net weight or measure of the article contained therein:

Provided that the provisions of the section shall not apply to an article sold, offered for sale, exposed for sale, or in possession for sale, which is not ordinarily sold in transactions for trade or commerce by weight or measure.

The argument is that the proviso, quoted above, clearly shows that the section cannot apply to an article which is not ordinarily sold by weight or measure. It is, therefore, essential for the prosecution to have alleged that Lifebuoy soap is an article which is sold by weight. As there is no such allegation in the complaint petition, it is fit to be dismissed.

Mr. Tiwary, appearing for the State, has argued that the proviso, referred to above, is by way of an exception to the section and has to be established by the defence; and it is not essential for the prosecution to allege and prove facts that would exclude the proviso.

It will be seen that Section 14 of the Act applies to both cases where a package or container fails to mention the net weight or measure of the article contained therein.

This indicates that to some cases the absence of a description of the net weight of the article would arise and in some cases the absence of a description of the measure. The inference is irresistible that for the application of the section, it has to be shown that a description of either net weight of the article or the measure was relevant. Unless the occasion for mentioning the weight or the measure was relevant, their absence could not amount to commission of an offence. The object of the Act clearly indicates this. This position is clarified by the proviso, quoted above.

Although, ordinarily the proviso is an exception to the main part of the section, but in exceptional cases, it may be a substantive provision by itself See The Commissioner of Commercial Taxes and Others etc. Vs. R.S. Jhaver and Others etc., and in some cases by way of an explanation for removing any doubt. Craies in his book on statute law has referred to the case of West Derby Union v. Metropolitan Life Assurance Co. 1897 A.C. 647 and has said that provisos are often inserted "to allay fears". In Courtis v. Maloney (1950) 2 All. 982 a question arose about the interpretation of the proviso in Section 15 of the Bankruptcy and Deeds of Arrangement Act, 1913. The section contained a proviso; and Denning, L.J. while considering it observed that it was inserted due to the anxiety of the draftsman to defeat in advance an argument based upon interpretation of section not intended. Semervell, L.J. who also agreed with the interpretation observed that the words in a proviso may affect not only the range but the meaning of words which precede the proviso.

In the present case, the proviso has been inserted with the object of putting an interpretation on Section 14 beyond any controversy and it is not really a proviso in the accepted sense carrying out an exception to the main part, of the section. I, therefore, hold that Section 14 does not apply at all to a case where the article in question is not ordinarily sold by weight or measure and it was for the prosecution to have alleged in the complaint petition that Lifebuoy soaps are sold by net weight. It has, therefore, to be held that the present proceeding is an abuse of the process of the court and is fit to be quashed.

I accordingly allow this application and quash the proceeding which is pending against the petitioner in the court below.