IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 162 of 2004(B)
1. INSPECTOR OF LEGAL METROLOGY,
... Petitioner
2. THE CONTROLLER OF LEGAL METROLOGY,
3. THE STATE OF KERALA, REP. BY THE
Vs
1. R.PASUPATHY, GENERAL MANAGER,
... Respondent
2. UNION OF INDIA, REP. BY THE
For Petitioner :GOVERNMENT PLEADER
For Respondent :.
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :08/07/2008
O R D E R
H.L.Dattu, C.J. & A.K.Basheer, J.
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W.A.No.162 of 2004
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Dated, this the 8th day of July, 2008
JUDGMENT
H.L.Dattu, C.J.
Though the matter is posted for admission, by consent of both
the learned counsels, the matter is taken up for final hearing, since the issue
involved in this Writ Appeal lies in a narrow compass.
2. In the Original Petition filed, the petitioner had called in
question Exhibit P1 notice issued by the Inspector, Legal Metrology, Kochi
dated 2.7.1993 and Ext.P3 order passed pursuant thereto. In the said notice,
it was informed to the petitioner certain defects said to have been noticed
by them at the time of surprise inspection of the petitioner’s business
premises. The defects are:
“1. 60 ml. Dubonnet sold was on measurement found to be
less by 4 ml.
2. The certificate of verification was not exhibited in the Bar.
3. A packet of Wills Filter Cigarette was sold for Rs.13/-“.
3. After receipt of the said notice, the petitioner had offered
his explanation, by his reply letter dated 19.7.1993 and, in that, had brought
to the notice of the authority that the defects pointed out are trivial in nature
and in the line of business the petitioner is conducting, such things do
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happen and, therefore, requested the authority to drop the proceedings.
4. After receipt of the reply so filed, the first respondent by
his order dated 2.7.1993 (Exhibit P3) has only observed that the
explanation offered by the petitioner is not satisfactory and, therefore,
either the petitioner should compound the offence departmentally or face
the prosecution.
5. Aggrieved by Exhibit P1 notice and Exhibit P3 order,
petitioner was before this Court. The learned Single Judge, has allowed the
Original Petition and has quashed Exhibits P1 and P3.
6. The State, being aggrieved by the orders passed by the
learned Single Judge, is before us in this Writ Appeal.
7. Smt.K.Meera, learned counsel appearing for the Revenue,
would submit that the learned Single Judge ought not to have quashed
Ext.P1 notice and Exhibit P3 order passed by the first respondent, for the
reason, that, in Exhibit P3 the authority had only stated that the explanation
offered by the petitioner is not satisfactory and, therefore, either he will pay
up the compounding fee or face prosecution.
8. The primary contention of the petitioner before the learned
Single Judge was that the 1st respondent, without considering the
explanation offered by him, had directed him either to compound the
offence departmentally or face prosecution. In our opinion, if for any
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reason the learned Single Judge was of the opinion that the explanation
offered by the petitioner had not been properly considered by the first
respondent, he ought to have quashed the said order and directed the
authority to consider the explanation offered by the petitioner in its proper
perspective and pass a speaking order. That has not been done by the
learned Single Judge. In fact, the learned Single Judge has allowed the writ
petition without even remanding the matter to the 1st respondent. In our
opinion, in a case of this nature, if for any reason the learned Single Judge
was of the opinion that the explanation offered by the petitioner is not
considered properly while passing Exhibit P3 order, the learned Single
Judge ought to have quashed the said order and should have remanded the
matter to the said authority to redo the matter in accordance with law.
9. In that view of the matter, we have no other alternative, but
to allow the Writ Appeal, set aside the orders passed by the learned Single
Judge and then direct the 1st respondent-authority to consider the
explanation offered by the petitioner (Exhibit P2) and to pass appropriate
orders in accordance with law.
10. Accordingly, we pass the following:
Order
(i) The Writ Appeal is allowed.
(ii) The impugned order passed by the learned Single Judge in
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O.P.No.10761 of 1993 dated 3/3/2003 is set aside.
(iii) Exhibit P3 order passed by the 1st respondent-authority dated
2.7.1993 is quashed.
(iv) The matter is now remanded back to the 1st
respondent/successor in office, to consider Exhibit P2 explanation offered
by the petitioner in accordance with law and pass a speaking order, after
affording an opportunity of hearing to the petitioner.
(v) All the contentions of the parties are left open.
Ordered accordingly.
(H.L.Dattu)
Chief Justice
(A.K.Basheer)
Judge
vku/dk