State vs S. Radhakrishnan

Janarthanam, J.—The appeal is against acquittal.

The brief facts are, the Tamil Nadu Civil Supplies Corporation is having number of branches throughout the State for sale of provisions. One

such branch is located at Distillery Road, Nagarcoil. The accused-appellant was in charge of this branch. There was also a watchman by name,

Vijayakrishnan in this branch. On 3-2-1983 at 10:45 a.m. the Assistant Inspector of Labour II circle, Nagarcoil, namely P.W. 1 and his party

made an inspection of the business premises of this branch. At that time, the accused was not present in the shop and was stated to be on leave on

that day. The watchman Vinayakrishnan alone was present. The inspection revealed that one 500 ml. measure namely M.O. 1, was not verified

and stamped subsequent to the quarter of the year 1980-81. It was seized by P.W. 1, under Ex.P. 1, mahazar. Subsequently, P.W. 1 issued show

cause notice to the accused as well as the watchman Vijayakrishnan directing them as to why action should not be taken for violation of the

provisions of the Tamil Nadu Weights and Measures Enforcement Act, 1958 (hereinafter referred to as the Act). The accused as well as

Vijayakrishnan gave reply under Ex.P. 3. They also appealed to the Controller of Weights and Measures, praying that they might be excused this

time. The Controller of Weights and Measures passed the order under Ex.P. 4 rejecting the appeal. In the meantime P.W. 1 was transferred and in

his place P.W. 2 was posted. The Commissioner of Labour directed P.W. 2 to prosecute the accused alone as he was the person responsible for

verification and stamping of the weights and measures available in the shop. As per the instructions P.W. 2 laid the complaint against the accused

alone before the Chief Judicial Magistrate, Nagarcoil for the violation of the provisions of S. 11 and R. 10(2) punishable under S. 25 of the Act.

The accused when questioned regarding the incriminating circumstances appearing in the evidence, denied his complicity in the crime. He chose

to examine a defence witness on his side. In fact, he got himself examined as D.W. 1, in the case. He had deposed in his evidence that he was on

leave on the date in question and the M.O. 1, seized from the shop was not at all in use. He would also add that he was the person responsible for

verifying and stamping the weights and measures in the shop in accordance with the provisions under the Act.

The learned Magistrate, on considering of the evidence placed before him and after hearing the arguments of the learned Additional Public

Prosecutor, and the counsel for the defence, came to the conclusion that no offence under any of the provisions of the Tamil Nadu Weights and

Measures (Enforcement) Act, 1958 had been made out against the accused-appellant and consequently acquitted him of the charges framed

against him, giving rise to this appeal. The learned Magistrate acquitted the accused on the ground that the measure M.O. 1, seized in the case was

not proved to be in use in the shop since it was not found along with the other measures duly verified and stamped. The learned Public Prosecutor

would contend that the learned Magistrate while rendering the verdict of acquittal on the ground was factually in error in view of the fact that the

evidence of P.W. 1 puts the matter beyond any shadow of doubt that the measure M.O. 1, at the time of seizure was found along with the other

measures found in the premises of the shop at the time of inspection. A perusal of the evidence of P.W. 1 makes it abundantly clear that the

argument of the argument of the learned Public Prosecutor on this aspect is perfectly correct. The learned Public Prosecutor also contends that

once the measure which is not verified and sealed is recovered from the business premises, then there is a statutory presumption available to the

prosecution under Explanation I to S. 25of the Act, that such measure was deemed to be in use for measuring purposes, unless and until the

contrary is proved by the other side. Explanation I to S. 25 of the Act reads as follows :-

If any such weight or measure of weighing or measuring instrument is found in the possession of any trader or any employee or agent of such

trader, such trader, employee or agent shall be presumed, until the contrary is proved, to have had it is his possession for use on transactions for

trade, business or commerce.

From a cursory perusal of the said section, it is abundantly clear that once the measure which was seized was not duly verified and stamped, but

was available in the premises, then it goes without saying that such measure was deemed to be in use unless and until the contrary is proved. As

such, the argument of the learned Public Prosecutor on this aspect has to be countenanced, consequence of which is that the order of the Court

below in acquitting the accused has to be set aside as being perverse. Therefore, the appellate order of the Court below is set aside. The accused

respondent is found guilty under S. 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1958.

Section 25 of the said Act prescribes a punishment of fine to a maximum of Rs. 500/- for the first offence. So far as the respondent is

concerned, admittedly, he is a first offender. So, it is well-nigh possible that he can be fastened with the criminal liability u/s 25 of the Act in

imposing on him a fine up to a maximum of Rs. 500/-. The learned counsel for the respondent at this juncture would submit that since he is an

employee of the Tamil Nadu Civil Supplies Corporation, if any fine is imposed on him, it is very likely that he will be ousted from the job thereby

his family will be thrown in the street, and, therefore, he would request for the clemency of the court for the benevolent provisions the Probation of

Offenders Act to be invoked in this case. I also feel that this is a fit case where the benevolent provisions of the Probation of Offenders Act can be

invoked in favour of the accused-respondent since he has already undergone the agony of trial and appeal against acquittal before this court all

along these five to six years. In such circumstances, though I find the accused respondent guilty u/s 25 of the Act, yet, in lieu of sentencing him to

pay fine, I release him under S. 3(1) of the Probation of Offenders Act, after due admonition. I also want to make it clear that the release of the

accused-respondent u/s 3(1) of the Act would not be construed as a disqualification attached to conviction under S. 12 of the Probation of

Offenders Act.

Appeal allowed.