Binod Kumar Roy and R. K. Singh, JJ.@mdashThe petitioners have come up with prayers to (i) declare Sections 39. 60 and 61 of the Standards of Weights and Measures (Enforcement) Act, 1985 (hereafter referred to as the Act) as unconstitutional and void and (ii) restrain the respondents from prosecuting them for violation of the aforementioned provisions of the Act.
2. Petitioner No. 1 claims itself to be representative body of the dealers of petroleum products in our State, duly registered with the Registrar -Chits, Firms and Societies, U. P., Lucknow and its registered office at Kanpur. Petitioner No. 2 is a petrol pump owner and dealer appointed by the Indian Oil Corporation situate at G. T. Road, Bamrauli, Allahabad.
The Pleadings:
3. Shortly put the case of the petitioners is to this effect :
The petrol and diesel supplied by the Oil Companies, are stored in an underground tank from which retail supply is made through a measure which is a mechanical process through machines, manufactured by leading manufacturers (1) M/s. Larson and Toubro and (2) M/s. Mercantile and Industrial Company Limited, which are maintained by them ; according to the Brochures issued by the aforementioned manufacturers (as contained in Annexures-1 and 2) there are five causes for inaccurate measurements, namely, (i) Improper adjustment of the calibrating wheel ; (ii) Swollen ''O'' ring GM 50002 ; (iii) Worn sealing surface, i.e., valve, valve seal and valve seat ; (iv) Worn piston cups, and (v) Inaccurate test can ; these machines are beyond the control of the petitioners, besides the faults can occur at any point of time : at the time of installation of these machines variation of a range up to 0.6%, and while delivering 5 litres of oil variation between 4.86 litres to 5.16 litres, i.e., 0.3% have been found, which is apparent from the test checks carried out by the manufacturers, as contained in Annexures-3 and 4 ; the Government being alive to these natural variations, has been issuing Orders dated September, 5, 1977 and September 5, 1975 (Copies appended as Annexures-5 and 6) to the effect that a dealer should not be prosecuted merely on account of variations unless there are solid reasons or proof of dishonesty ; the legislation in question is a new one : Sections 39 and 60 of the Act are totally unreasonable and they infringe upon their fundamental rights under Article 19(1)(g) and Article 21 of the Constitution of India and the presumptions mentioned in Sections 60 and 61 of the Act per se imposes wholly unreasonable restriction on the fundamental rights of the petitioner to carry on their trade, business and occupation as guaranteed under Article 19(1)(g) of the Constitution.
4, In the counter-affidavit (filed on 7.12.1998, and a copy of which was sent by Registered Post on 30.11.1998 to petitioner No. 2) of the respondent Nos. 2 and 3 following facts have been stated :
The stand that until 1984 there was no comprehensive provision for regulating the Weights and Measures is not true inasmuch as there were specific provisions to regulate and enquire the commercial transactions under the U. P. Weights and Measures (Enforcement) Act. 1959 and the rules framed thereunder, the petitioners are required to maintain their dispensing pumps in such a way so as to deliver correct quantity, the Act and the rules made thereunder provide range of variation of 0.6% in excess and 0.3% in deficiency at the time of Inspection of the dispensing pumps ; the G. O, dated September 5. 1977, requires the petrol/dlesel dealers to check the quantity delivered by the dispensing pumps each and every morning and on finding any deficiency they are required to inform in that regard to the Oil Company and stop the sale till the dispensing pump is corrected; it does not prohibit the Weights and Measures Department from prosecuting the retail outlets of the Oil Companies on finding committal of malpractices by the owners of the retail outlets/ dispensing pumps, rather it provides guidance that only on finding solid proof of tempering or dishonesty, prosecution should be lodged : the officers of the department follow the guidelines though the provisions of the Act and the Rules will prevail ; the said G. O. should not be misinterpreted by the petitioners for their own benefits ; once weights and measures are duly verified and stamped by the Inspector of Weights and Measures they shall be deemed to conform to the standards prescribed under the Act ; a certificate is issued u/s 24(4) of the Act but it is not admitted that a dealer cannot be prosecuted, if defects develop during the course of the currency of the certificate because such defects can be deliberately caused by the dispensing pump owners by adopting various illegal and unfair ways and means and effecting manipulations by several devices in the machines ; circular dated December 23. 1989 was issued by the Ministry of Supplies (Civil and Food) (Department of Civil Supplies). Government of India, which indicate that the Directorate was considering details of alternative arrangements to be worked out by an expert panel regarding the verification of such dispensing pumps which deliver short quantities ; considering the variation in speed in dispensing pumps while delivering the product to the consumers appropriate amendment has been made in this regard in the Rules by notification dated July 15, 1991 (being filed as C. A. 1) though the Oil Companies have not yet made provision in dispensing pumps as per the amended Rules ; the permissible variations allowed is upto 0.6%, that is to say 30 ml. in 5 litres at the time of verification to condone minor variation only likely to develop in course of use of the dispensing pumps mechanism for delivery purposes ; the said circular does not indicate that this variation has been allowed in deficiency also ; the Act aims to safeguard the interest of the consumers and that is why no variation either at the time of verification or at the time of inspection is allowed in deficiency beyond tolerance limit prescribed under the Act or the Rules ; the stand of the petitioners that they have absolutely no control over the maintenance of measuring machines is not correct and they cannot be exonerated from their responsibilities in not keeping them in perfect condition with a view to ensure correct delivery ; the petitioners have deliberately not impleaded the Oil Companies to have their version in this regard though they have tried to fix up the entire responsibility on them ; the Oil Companies have been issuing marketing guide lines and suitable instructions to their dealers time and again to maintain accuracy of dispensing pumps so that the consumers should not be cheated by short delivery ; the reports of the companies also suggests that they are taking punitive action against such erring dealers, who are found involved in cheating consumers by their fraudulent activities and other malpractices viz.. short delivery, overcharging, adulteration etc., it is prima facie duty of the users of the dispensing pumps to maintain its accuracy with the help and active association of their principals, i.e., the Oil Companies, it is not true that the defects may not come to the knowledge of the petitioners for months altogether when they are required to check their pumps every morning and tally the stock position stored in the tanks with their dally records of the sale and balance, and thus they can very well know the defects every day, the dealers shall also be held responsible for the abatement of the offence being committed by them by their connivance in causing defects in the machines either deliberately or by their callous negligence in regard to maintenance of the accuracy of the machines ; the errors specified in the circular do not permit dealers to cheat consumers by way of short delivery : Sections 39. 60 and 61 along with Section 37 of the Act clearly deal with various aspects in regard to ensuring correct delivery to the consumers and provide suitable punishment of the dealers found guilty of committing breach of the aforementioned provisions, which are reasonable and in no way violate Articles 19(1)(g) and 21 of the Constitution, the petitioners are neither harassed nor are vexed by the Officers of the Department, rather they are prosecuted only when they are found committing deliberate breach of the aforementioned provisions ; none of the grounds taken are tenable in law and the petitioners are not entitled to any relief under Article 226 of the Constitution, and their petition is liable to be dismissed with costs."
5. No rejoinder to the aforesaid counter has been filed by the petitioners.
The Submissions .-
6. Sri Ravi Kant, learned counsel appearing on behalf of the petitioner, contended as follows :
(i) It is impossible for the petitioner to have a machine, delivering petrol/ diesel, free from any fault. In view of the inherent defect in the machines the Government itself has recognised variation of 0.6% while delivering five litres of petrol/diesel and has issued G.O.''s yet prosecution has been made in case of even such a variation. Restriction in the variation between the actual weight and standard" weight being inherent it is per se excessive and not consummate with public interest and accordingly violative of Article 19(1)(g) of the Constitution of India.
(ii) Sections 60 and 61 of the Act create a presumption regarding guilt ruling out mens rea which ultra vires the Constitution.
In order to support his submission he placed reliance on
7. Sri Krishna Kumar Parekh, the learned additional standing counsel of the Union appearing for the respondent No. 1, the Union of India contended as follows :
(i) The provisions in question do not ultra vires Articles 14, 19(1)(g) and 21 of the Constitution of India ;
(ii) We are having in our country best software technology and computer and/or with the help of micro gauge and microscope so as to have variations upto .005 only at the time of delivery. In fact on many petrol pumps machines with computers have been installed for supplying petrol and diesel.
(iii) In fact the petitioners are adopting dubious methods at the time of delivery of petrol/diesel to the consumers. Some of them are even using adulterated petrol/diesel which is causing damage to the engine of the vehicle of the consumer. In support of his contentions he placed reliance on
(iv) The Oil Companies are necessary parties, who have been left out and thus this writ petition is liable to be dismissed.
8. Sri P. K. Bisarla. learned standing counsel appearing on behalf of the respondent Nos. 2 and 3 contended as follows :
(i) The impugned sections safeguard the protection of the consumers from being cheated by unscrupulous dealers/traders who indulge in delivering lessor quantum of petrol/diesel by using substandard weight and measures. The sections in question were enacted by the Parliament to safeguard the interest of the consumers, which by no stretch of imagination can be dubbed as arbitrary and unreasonable and/or violative of the constitutional mandate enshrined under Articles 14, 19(1)(g) and 21 of the Constitution of India.
(ii) In our State was U. P. Weights and Measures Act, 1959 and 1960 Rules framed thereunder, but having found them insufficient to curb the malpractice of the unscrupulous traders the Parliament enacted Standards of Weights and Measures Act, 1966 ; Standards of Weights and Measures (Enforcement) Act. 1985, and Standards of Weights and Measures (General) Rules. 1997, were framed with a view to provide more severe punishment for those dealers who intended to deceive and cheat the consumers/buyers by delivering fraudulently lesser quantity of petroleum products by using non-standard and false weights and measures.
(iii) The range of variations in the machine is only minor one. The Oil Companies have been issuing instructions to the petitioners to maintain accuracy in supply of petrol/diesel so that the consumers are not cheated by short delivery. They have been even taking positive action against such dealers who have been found involved in cheating the consumers by their fraudulent activities and malpractice in supplying short delivery of the fuel, overcharging, adulteration etc., which stand corroborated by the very documents appended as Annexure-1 to the written submissions made by Sri Ravi Kant. Accordingly there is no merit in the submission of Mr. Ravi Kant and the writ petition is fit to be dismissed summarily.
8.1. When this case was listed for further hearing on 17.12.1998 the learned counsel for the parties informed us that no further argument will be advanced by them.
9. Our findings :
9.1. The need to have correct balances, weights and measures is not a new need. In our country more than 2200 year ago. Kautilya in his book ''Arthshastra'' Adhyaksh Prachar Dwittya Adhikaran. 19th Chapter, has stated as follows :
In English translation it means : The balance and weights should be examined at the interval of every four months. Those who do not get examined at the scheduled time they should be awarded an economic punishment of 27-1/2 Pan".
9.2. Even around 7th Century the Holy-Quran, Verse (Aayat) No. 35 Surah 17A stated thus :
"Give full measure when ye measure, and weight With a balance that is straight : That is better and fairer In the final determination."
10. Through the preamble of the Constitution an attempt has been made to secure to all its citizen, inter alia, social and economic Justice ; and through Article 19(2) it has been provided that nothing in sub-clause (g) of Article 19(1) will prevent the State (means Parliament or the State Legislature) from making any law imposing reasonable restriction on the exercise of the right to carry on any occupation, trade or business guaranteed under Article 19(1)(g). Thus, in order to achieve the objective of securing social and economic justice, and the directive principles of the State policy under Articles 38 and 39 the Parliament enacted ''The Standard of Weight and Measures Act, 1976, in order to establish standards of weight and measures, to regulate inter-state trade or commerce in weights, measures and other goods, which are sold or distributed by weight, measures or number, and to provide for matters connected therewith or incidental thereto. The Parliament in 1985 enacted the instant Act to provide for the enforcement of the standards of weights and measures established by or under the aforesaid Act, and for matters connected therewith or incidental thereto. The Act came into force in our State with effect from January 26. 1990, the day appointed by the Governor in exercise of powers u/s 1(3) of the Act.
11. Section 39, of the Act reads thus :
"39, Penalty for keeping non-standard weights or measures for use and for other contraventions.-
(1) Whoever keeps any weight or measures other than the standards weight or measure in arty premises in such circumstances as to indicate that such weight or measure is being, or is likely to be, used for any :
(a) weightment or measurement, or
(b) transaction or for industrial production or for protection, shall be punished with fine which may extend to two thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine.
(2) Whoever,--
(i) in selling any article or thing by weight, measure or number, delivers or cause to be delivered to the purchaser any quantity or number of that article or thing less than the quantity or number contracted for and paid for, or
(ii) in rendering any service by weight, measure or number, renders that service less than the service contracted for and paid for, or
(iii) in buying any article or thing by weight, measure or numbers, fraudulently receives, or causes to be received any quantity or number of that article or thing in excess of the quantity or number contracted for and paid for, or
(iv) in obtaining any service by weight, measure or number, obtains that service in excess of the service contracted for and paid for ;
shall be punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine.
(3) Whoever enters, after the commencement of this Act, into any contract or other agreement (not being a contract or other agreement for export) in which any weight, measure or number is expressed in terms of any standard other than the standard weight or measure, shall be punished with fine which may extend to two thousand rupees and, for the second of subsequent offence, with imprisonment for a term which may extend to one year and also with fine."
11.1. Its perusal shows that subsection (1) prohibits keeping of substandard weights or measures with an intention to use them for weighment or measure or transaction or for industrial production or even for protection and on the first occasion shall be fined upto Rs. 2,000 and on second time or subsequent time with imprisonment upto 1 year with fine. Sub-section 2 (i) provides punishment for those, who are found guilty in selling any article or thing by weight, measures or number, delivers to purchasers less than the quantity contracted and paid for. Sub-section 2 (ii) likewise deals with persons who are rendering any service. Subsection 2 (iii) likewise deals with such persons who in buying fraudulently receive or cause to be received in excess. Sub-section 2 (iv) deals with those who obtain service, and prescribes punishment with fine upto Rs. 5,000 on first account, and for second and subsequent time, with imprisonment upto 5 years along with fine. Sub-section (3) imposes punishment of fine upto Rs. 2,000 on first count, and for second and subsequent acts imprisonment upto 1 year and with fine for those who enter into any contract or agreement except for export in which any weight/measure/number is expressed other than the standard ones.
12. Section 60 of the Act reads thus :
"60. Presumption to be made in certain, cases.-
(1) If any person :
(a) m a k e s or manufactures, or causes to be made or manufactured, any false weight or measures, or
(b) uses, or causes to be used, any false or unverified weight or measure in any transaction or for Industrial production or for protection, or
(c) sells, distributes, delivers or otherwise transfers, or causes to be sold, distributed, delivered or otherwise transferred, any false or unverified weight or measure,
It shall be presumed, until then contrary is proved, that he had done so with the knowledge that the weight or measure was a false or unverified weight or measure, as the case may be.
(2) If any person has in his possession, custody or control A.W.C. 44 any false or unverified weight or measure in such circumstances as to indicate that such weight or measure is likely to be used in any transaction or for industrial production or for protection. It shall be presumed, until the contrary is proved, that such false or unverified weight or measure was possessed, held or controlled by such person with the intention of using the same in any transaction or for Industrial production or for protection."
12.1. This section talks of a statutory presumption against such persons who indulge in the acts mentioned unless contrary is proved.
13. Section 61 of the Act reads thus :
"61. When employer to be deemed to have abetted an offence, (1) Any employer, who knows or has reason to believe that any person employed by him has, in the course of such employment, contravened and provision of this Act or any rule made thereunder, shall be deemed to have abetted an offence against this Act :
Provided that no such abatement shall be deemed to have taken place if such employer has, before the expiry of seven days from, the date on which :
(a) he comes to know of the contravention, or
(b) he has reason to believe that such contravention has been made, intimated in writing, to the Controller the name of the person by whom such contravention was made and the date and other particulars of such contravention.
(2) Whoever is deemed under sub-section (1) to have abetted an offence against this Act shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both, and, for the second or subsequent offence, with imprisonment for a term which may extent to five years and also with fine.
Explanation.--Dismissal or termination of service of an employee after the expiry of the period specified in the proviso to sub-section (1) shall not absolve any employer of his liability under this sub-section."
13.1. The aforesaid section takes care of those who abate the acts constitutiong the offence/offences.
14. The consumers are now said to be the kings of the market. Petrol is being called Petro-Gold. One of the well known slogans of the ''Bharat Petroleum'' is to the effect that every drop of Petrol should be saved as it is not going to last for ever. Obviously the emphasis is on its limited resources and on its weight/measurement and utilisation to the maximum. The Parliament has made endeavours to protect the consumer''s interest. The law stands well-settled that there is a presumption of constitutionality of an Act and the onus lies on the person challenging its vires. Having gone through the aforementioned sections and other provisions of the Act, we find substance in the contentions of Mr. Parekh and Mr. Bisaria both.
15. By installation of computerised machines in the petrol pumps, the variations have now been brought to the minimal as claimed by the learned standing counsel for the Union, which has not been disputed before us. Unfortunately the petitioners have not impleaded the Oil Companies, whose presence would have been useful to know their view points. Thus, the assertion of the petitioners that it is impossible for them to install foolproof machines, is not acceptable to us. The submission in this regard being based on mere self-serving statements of petitioner No. 2 is not worthy of acceptance. True it is that there is well known dictum that the law does not expect a party to do the impossible ''impossibilium mulla obligatio est" --but here we do not find that the law is asking the petitioners to do impossible rather the petitioners have been given a latitude to supply upto 0.3% deficient fuel to the consumers out of 5 litres. It, thus, cannot be held to be unreasonable or an arbitrary legislation. The Act is a socio-economic legislation which intends to remedy the evil of short supply of petrol/diesel/or any commodity which may be purchased by any consumer.
16. We have also perused the judgments relied upon by Sri Ravi Kant. They do not support his contentions as claimed.
17. We thus do not see any vice of arbitrariness or unreasonableness so as to hold these sections as violative of Articles 14. 19(1)(g) and 21 of the Constitution of India.
18. For the reasons aforementioned we dismiss this writ petition but without cost.
19. The office is directed to hand over a copy of this order within one week to (i) Sri K. K. Parekh. the learned additional standing counsel of the Union and (ii) Sri P. K. Bisaria, learned standing counsel of the State of U. P. both, for its intimation to the authorities concerned.
