# THE STATE OF UTTAR PRADESH v. AMAN MITTAL & ANR

- **Citation:** [2019] 11 S.C.R. 1180
- **Court:** Supreme Court of India
- **Decided:** 2019-09-04
- **Case number:** Criminal Appeal Nos. 1328-1329 of 2019
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-v-aman-mittal-anr-33028
- **Pages:** 25

## Headnote

Legal Metrology Act, 2009:
ss.3 and 51 - Proceedings u/ss. 265, 267, 420, 34, 120B, 467,
468 and 471 of IPC; u/ss. 3 and 7 of Essential Commodities Act,
1955; u/ss. 12/30 of Weights and Measures Act, 1976 and u/ss.12/
30 of the Legal Metrology Act - Applicability of the provisions of
IPC - Held: The Act is a special Act vis-a-vis IPC - Section 3 of
the Act completely overrides the provisions of Chapter XIII of IPC
in respect of the offences and penalties imposable for violations
of the provisions of the Act, it being a special Act - Therefore, if
offence is made out under the provisions of the Act, an accused
cannot be charged for the same offence under Chapter XIII of IPC
- Section 51 of the Act also makes it clear that the provisions of
IPC insofar as they relate to offences with regard to weight and
measure shall not apply to any offence punishable under the Act
- However, all the offences under IPC are not excluded - The Act
does not foresee any offence u/s. 415, 467, 468, 471, 34 or 120B of IPC - Since such offences are not punishable under the Act,
the prosecution for such offences will be maintained - Offences u/
ss.265 and 267 which fall under Chapter XIII of IPC alone are
liable to be quashed - Penal Code, 1860 - Chapter XIII.
s.51 - Proceedings for the offences under the Legal
Metrology Act - Applicability of provisions u/s.153 of Cr.P.C. -
Held: Power of search and seizure in respect of weights and
measures is vested with the Designated Authorities under the Act,
hence in view of s.51, entire Cr.P.C. is inapplicable in respect of
prosecution under the Act - Code of Criminal Procedure, 1973 -
s.153.
Code of Criminal Procedure, 1973:
s.482 - Jurisdiction under - Scope of - Held: Directions of
High Court against the interest of the accused in the petition u/
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s.482 filed by the accused, are beyond the jurisdiction of the High
Court - Order by the High Court directing disciplinary action
against erring officials in a petition u/s.482 seeking quashing of
charge-sheet, is also beyond the scope of jurisdiction of High
Court.
Partly allowing the appeals, the Court
HELD: 1.1 The Act is a special Act vis-à-vis IPC. Section
51 of the Legal Metrology Act, 2009 provides that the provisions
of IPC and of Section 153 of Cr.P.C. insofar as such provisions
relate to offences with regard to weight and measures only shall
not apply to any offence which is punishable under the Act.
Section 153 of Cr.P.C permits an officer in charge of police
station to enter any place for the purpose of inspecting or
searching any weights or measures or instruments for weighing,
used or kept therein. Section 153 of Cr.P.C has been made
inapplicable under the Act as power of search and seizure is
vested with the designated authorities under the Act. Therefore,
the entire Cr.P.C is inapplicable in respect of the prosecution
under the Act that the police cannot enter any place for the
purpose of inspecting or searching for any weights or measures.
Section 3 of the Act completely overrides the provisions of
Chapter XIII of IPC in respect of the offences and penalties
imposable for violations of the provisions of the Act, it being
special Act. Therefore, if the offence is disclosed to be made
out under the provisions of the Act, an accused cannot be
charged for the same offence under Chapter XIII of IPC.
Therefore, the provisions of IPC which relate to offences with
regard to weight and measure as contained in Chapter XIII of
IPC alone will not apply. No person can be charged for an offence
relating to weight or measure falling under Chapter XIII of IPC
in view of the provisions of the Act. The offences under
Sections 265 and 267 IPC are liable to be quashed. [Paras 31,
33, 34 and 36] [1202-E-G; 1201-A; 1203-A-C-G]
1.2 The scheme of the Act is for the offences for use of
weights and measures which are non-standard and for tampering
with or altering any standards, secondary standards or working
stan

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SUPREME COURT REPORTS
[2019] 11 S.C.R.
THE STATE OF UTTAR PRADESH
v.
AMAN MITTAL & ANR.
(Criminal Appeal Nos. 1328-1329 of 2019)
SEPTEMBER 04, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Legal Metrology Act, 2009:
ss.3 and 51 - Proceedings u/ss. 265, 267, 420, 34, 120B, 467,
468 and 471 of IPC; u/ss. 3 and 7 of Essential Commodities Act,
1955; u/ss. 12/30 of Weights and Measures Act, 1976 and u/ss.12/
30 of the Legal Metrology Act - Applicability of the provisions of
IPC - Held: The Act is a special Act vis-a-vis IPC - Section 3 of
the Act completely overrides the provisions of Chapter XIII of IPC
in respect of the offences and penalties imposable for violations
of the provisions of the Act, it being a special Act - Therefore, if
offence is made out under the provisions of the Act, an accused
cannot be charged for the same offence under Chapter XIII of IPC
- Section 51 of the Act also makes it clear that the provisions of
IPC insofar as they relate to offences with regard to weight and
measure shall not apply to any offence punishable under the Act
- However, all the offences under IPC are not excluded - The Act
does not foresee any offence u/s. 415, 467, 468, 471, 34 or 120B of IPC - Since such offences are not punishable under the Act,
the prosecution for such offences will be maintained - Offences u/
ss.265 and 267 which fall under Chapter XIII of IPC alone are
liable to be quashed - Penal Code, 1860 - Chapter XIII.
s.51 - Proceedings for the offences under the Legal
Metrology Act - Applicability of provisions u/s.153 of Cr.P.C. -
Held: Power of search and seizure in respect of weights and
measures is vested with the Designated Authorities under the Act,
hence in view of s.51, entire Cr.P.C. is inapplicable in respect of
prosecution under the Act - Code of Criminal Procedure, 1973 -
s.153.
Code of Criminal Procedure, 1973:
s.482 - Jurisdiction under - Scope of - Held: Directions of
High Court against the interest of the accused in the petition u/
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s.482 filed by the accused, are beyond the jurisdiction of the High
Court - Order by the High Court directing disciplinary action
against erring officials in a petition u/s.482 seeking quashing of
charge-sheet, is also beyond the scope of jurisdiction of High
Court.
Partly allowing the appeals, the Court
HELD: 1.1 The Act is a special Act vis-à-vis IPC. Section
51 of the Legal Metrology Act, 2009 provides that the provisions
of IPC and of Section 153 of Cr.P.C. insofar as such provisions
relate to offences with regard to weight and measures only shall
not apply to any offence which is punishable under the Act.
Section 153 of Cr.P.C permits an officer in charge of police
station to enter any place for the purpose of inspecting or
searching any weights or measures or instruments for weighing,
used or kept therein. Section 153 of Cr.P.C has been made
inapplicable under the Act as power of search and seizure is
vested with the designated authorities under the Act. Therefore,
the entire Cr.P.C is inapplicable in respect of the prosecution
under the Act that the police cannot enter any place for the
purpose of inspecting or searching for any weights or measures.
Section 3 of the Act completely overrides the provisions of
Chapter XIII of IPC in respect of the offences and penalties
imposable for violations of the provisions of the Act, it being
special Act. Therefore, if the offence is disclosed to be made
out under the provisions of the Act, an accused cannot be
charged for the same offence under Chapter XIII of IPC.
Therefore, the provisions of IPC which relate to offences with
regard to weight and measure as contained in Chapter XIII of
IPC alone will not apply. No person can be charged for an offence
relating to weight or measure falling under Chapter XIII of IPC
in view of the provisions of the Act. The offences under
Sections 265 and 267 IPC are liable to be quashed. [Paras 31,
33, 34 and 36] [1202-E-G; 1201-A; 1203-A-C-G]
1.2 The scheme of the Act is for the offences for use of
weights and measures which are non-standard and for tampering
with or altering any standards, secondary standards or working
standards of any weight or measure. The Act does not foresee
any offence relating to cheating as defined in Section 415 of IPC
or the offences under Sections 467, 468 and 471 of IPC.
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
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Similarly, an act performed in furtherance of a common intention
disclosing an offence under Section 34 is not covered by the
provisions of the Act. An offence disclosing a criminal conspiracy
to commit an offence which is punishable under Section 120-B
IPC is also not an offence under the Act. Since such offences
are not punishable under the provisions of the Act, therefore,
the prosecution for such offences could be maintained since the
trial of such offences is not inconsistent with any of the
provisions of the Act. Similar is the provision in respect of the
offences under Sections 467, 468, 471 IPC as such offences are
not covered by the provisions of the Act. [Para 35] [1203-D-F]
State of Maharashtra v. Sayyed Hassan 2018 (11)
SCALE 317 ; Sangeetaben Mahendrabhai Patel v.
State of Gujarat & Anr. (2012) 7 SCC 621 : [2012] 3
SCR 1155 - relied on.
Sharat Babu Digumarti v. Government (NCT
of Delhi) (2017) 2 SCC 18 : [2016] 8 SCR 1015 -
distinguished.
2. The directions of the High Court in proceedings under
Section 482 of Cr.P.C. against the interest of the accused in a
petition filed by the accused are beyond the jurisdiction of the
High Court and, thus, all such observations and directions are
quashed. The directions issued by the High Court that the erring
officers/officials named in the supplementary report shall be
subject to disciplinary action are again beyond the scope of the
High Court in a petition under Section 482 of Cr.P.C. seeking
quashing of the charge-sheet and are, thus, quashed. [Para 36]
[1203-H; 1204-A-B]
3. It is open to the investigating agency to charge the
accused for such offences or any other offence by way of a
supplementary report or at a subsequent stage during trial as
considered appropriate by the investigating agency. [Para 36]
[1204-C]
M.C. Abraham and Another v. State of Maharashtra
and Others (2003) 2 SCC 649 : [2002] 5 Suppl. SCR
677 ; Khoday Distilleries Ltd. & Ors. v. Sri
Mahadeshwara Sahakara Sakkare Karkhane Ltd.
(2019) 4 SCC 376 : [2019] 3 SCR 411 ; Macquarie
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Bank Limited v. Shilpi Cable Technologies Limited
(2018) 2 SCC 674 : [2017] 13 SCR 751 - referred
to.
Case Law Reference
[2002] 5 Suppl. SCR 677
referred to
Para 12
[2016] 8 SCR 1015
distinguished
Para 19
[2019] 3 SCR 411
referred to
Para 24
2018 (11) SCALE 317
relied on
Para 26
[2012] 3 SCR 1155
relied on
Para 29
[2017] 13 SCR 751
referred to
Para 33
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1328-1329 Of 2019.
From the Judgment and Order dated 04.10.2017 and 09.11.2017
of the High Court of Judicature at Allahabad (Lucknow Bench) in
Criminal Misc. Application No. 4211 of 2017.
With
Criminal Appeal Nos. 1330-1331, 1332 of 2019
Vinod Diwakar, AAG, Mukul Rohatgi, B. N. Dubey, Sayandeep
Pahari, Ms. Garima Prasad, Mrs. Swarupama Chaturvedi, Mrs. Pragya
Baghel, Sameer Rohatgi, Ms. Devanshi, S. Chakraborty, Ms. Harshita
Verma (for M/s. Legal Options), Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
Crl. Appeal Nos. 1328-1329 of 2019 (@SLP (Criminal)
Nos.9981-9982 of 2017)
AND
Crl. Appeal Nos. 1330-1331 of 2019 (@SLP (Criminal)
Nos.1912-1913 of 2017)
1. Leave granted.
2. The order dated October 4, 2017 passed by the Lucknow
Bench of the High Court of Judicature at Allahabad is the subject matter
of challenge in these appeals.
3. An FIR No. 130 was lodged on April 28, 2017 with Police
Station Cantt, Lucknow for the offences punishable under Sections 265,
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
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267, 420, 34, 120-B of the Indian Penal Code, 18601 and Sections 3/7
of the Essential Commodities Act, 19552 in respect of short delivery of
petrol and diesel by 200-220 ml. on each sale of 5 liters.
4. On April 27, 2017, the Special Task Force3 of the State Police
took up the investigation into the commission of offence viz. short
delivery of petroleum products i.e. high-speed diesel and motor spirit
at various retail outlets operating within the city of Lucknow. The STF
with the aid of officers of the Department of Weight and Measures
and the District Administration raided the premises of the retail outlets.
The team found that 15 nozzles connected to four machines i.e.
dispensing units with seals intact were operative and functional. The
testing was carried out in the presence of Apar Nagar Magistrate, two
Inspectors of Weights and Measures Department and the partners of
the firm M/s. Shiv Narain & Sons and its Manager. As per the inspection
memo recorded on April 27, 2017, out of 15 nozzles, 10 nozzles were
used for sale of petrol and the remaining 5 nozzles were used for sale
of diesel. 13 nozzles were involved in malpractice of short delivery. The
team derived 5 liters of petrol and diesel respectively in the testing work
standard measurement kept at the outlet but on calibration, it was found
that the quantity of 200 ml. was short. For such short delivery, the FIR,
as mentioned above, was lodged.
5. In the FIR, it is alleged that some electronic chip was fixed
inside the dispensing unit which was operated through a remote. Three
remote controls bearing Nos. 2, 3 and 4 were recovered and two remote
controls were recovered without any numbers. The inspection team also
verified the storage of stocks available as on date in the underground
tanks by using a dip rod. On verification of actual stock, the comparative
record maintained by the dealer was found to be inconsistent rather
the stock available was found to be excessive and was recorded
accordingly. The dispensing machines were sealed by the inspection
team and the sale was immediately stopped. The accused were arrested
on April 28, 2017. Later, on June 1, 2017, the Investigating Officer along
with seven persons including the City Magistrate visited the retail outlet
and with the help of technicians hired from General Energy Management
Systems Pvt. Ltd. opened the dispensing machines. The seals were
1 IPC
2 Act, 1955
3 STF
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found intact both at the initial stage of inspection i.e. on April 27, 2017
and on June 1, 2017. The electronic chips fixed inside the 24 dispensing
units were taken into custody by the Investigating Officer. Such
electronic chips recovered on June 1, 2017 are now with Forensic
Science Laboratory, Lucknow for its forensic report. The Magistrate
on an application made by the Investigating Officer allowed the judicial
remand of accused vide order dated June 7, 2017 and also permitted
the investigation under Sections 467, 468, 471 IPC and Sections 12/30
of the Legal Metrology Act, 20094.
6. It is on the basis of investigations carried out, the charge-sheet
dated July 25, 2017 for the offences under Sections 265, 267, 420, 34,
120B IPC and Sections 3 and 7 of the Act, 1955, Sections 467, 468,
471 IPC and Sections 12/30 of the Weights and Measures Act, 1976
came to be filed before the competent court. The Magistrate did not
take cognizance of offence under Sections 471 and 120B of IPC for
want of evidence but the Magistrate has taken cognizance of an offence
under Section 30 of the Act.
7. It is thereafter two applications were filed under Sections
167(2) and 190(1) of the Code of Criminal Procedure, 19735 on July
26, 2017 on the ground that the prosecution has no material making
out a case of offences mentioned in the chargesheet, therefore, the
cognizance may not be taken. The learned Magistrate rejected both
the applications on July 27, 2017. It is thereafter the petition was filed
under Section 482 of the Code before the High Court, which was
decided by an order impugned in the present appeal. The High Court
has passed a detailed order examining the following questions of law:
"(i) Whether in view of the promulgation of Legal Metrology Act,
2009, the offences relating to weights and measures particularly
short delivery of petroleum products sold to the public at large
through dispensing machines, are open to be registered and
investigated by the police authorities in terms of the provisions
of IPC and Code of Criminal Procedure or the provisions of IPC
and Cr.P.C. for the said purpose would stand ousted/obliterated/
eclipsed by virtue of Section 51 of Legal Metrology Act, 2009;
(ii) Whether the Legal Metrology Act and the Essential
Commodities Act and the procedure envisaged thereunder has
4 Act
5 Code
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
[HEMANT GUPTA, J.]
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an overriding effect over the provisions of Code of Criminal
Procedure insofar as the investigation/search and seizure in
respect of the offences relating to weights and measures are
concerned.
(iii) Whether the investigation held by the investigating officer
assuming as if the same was permissible, has been held in
consonance with the relevant law applicable as on the date or
not and if not, its effect;
(iv) Whether the court below while taking cognizance of the
offences has passed the orders in accordance with the well-settled
principles of law and if not, its effect.
(v) Directions and directives necessary in the case."
8. It was held that the Code is applicable so long as a different
procedure is not prescribed under the special law with respect to the
cognizable or non-cognizable offences but application of the provisions
of IPC has to be understood within the broader scope of special law in
the light of exclusionary provision embodied therein. Thus, considering
Sections 3 and 51 of the Act, the High Court held as under:
"From a conjoint reading of this provision with the other provisions
of the Act, the logical conclusion to serve the purpose of the Act,
2009 that can be deduced is that all other offences under the
Legal Metrology Act, 2009 except the offence under Section 26
are non-cognizable and compoundable when committed for the
first time; whereas the offence under Section 26 of the Act is a
non-cognizable offence triable as per the procedure prescribed
under the Code of Criminal Procedure and the other offences
when committed second time as well. Thus, the procedure of
investigation, inquiry and trial under the Cr.P.C. would accordingly
apply inasmuch as, no procedure in relation thereto is prescribed
under the Special Act."
9. It was further held that Section 26 of the Act overrides the
provisions of Sections 264 to 267 of IPC as Section 51 of the Act clearly
excludes the application of IPC and Section 153 of the Code insofar
as it relates with regard to weights and measures punishable under the
special Act. The High Court held as under:
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"The violation of any provision of the Special Act or Section 26
once noticed against any offender, as is the situation in the
present case, it would not attract violation of Section 264 to 267
IPC at all and the prosecution is bound to be guided by the
relevant provisions under the Special Act. The Special Act has
replaced the entire Chapter by defining the offences of all
descriptions and classified them in the nature of non-cognizable
compoundable offences, as such, the procedure deserves to be
applied accordingly as per the classification of offences against
other laws in the first schedule of Cr.P.C. insofar as criminal
prosecution is concerned."
10. The High Court ordered that the trial court has not taken
cognizance of offence under Sections 34, 120B, 471 of IPC or 26 of
the Act. Therefore, there is no reason as to why the Court may not
take into account such materials for the purposes of taking cognizance
of the offences, in the light of the orders passed on July 7, 2017 and
August 17, 2017. The High Court held that Sections 467, 468, 471, 120B and 34 of IPC stand clearly attracted.
11. In respect of third question, the High Court directed the
District Judge, Lucknow to ascertain the quantitative and qualitative
figures of the residual stock lying in the underground tanks and allow
the stock to be delivered to the oil company for custody after due
calibration through the dispensing pumps installed. The High Court issued
the following directions:
"(i) The Investigating Officer assigned the duty of investigation
in case crime no. 130/2017 shall stand changed forthwith and
the Superintendent of Police (City), North, Lucknow at present
is hereby directed to take over the further investigation and
cooperate with the District Judge, Lucknow to deliver the custody
of petrol/diesel in the seized underground tanks to the respective
oil company after due calibration of the same through the
dispensing units. The District Judge/Investigating officer shall
collect the samples for quality and quantity checks both in the
calibrated containers to be provided by the department of Weights
and Measures and oil company immediately on demand. The
samples shall be collected as per the procedure of sample
collection provided for quality/quantity check specified in the
statutory Order, 2005;
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
[HEMANT GUPTA, J.]
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(ii) The District Judge, Lucknow jointly with the investigating
officer authorised hereinabove shall submit the calibration report
of the residual stock to the court concerned not later than a period
of 15 days from the date a copy of this order is communicated
to them by the Senior Registrar of this Court;
(iii) The investigating officer appointed hereinabove, in association
with the District Judge, Lucknow, shall jointly forward the report
of calibration of the stock in the respective tanks by duly
comparing the figures mentioned in the seizure memo/F.I.R. and
resultant excessive figures be mentioned in clear figures taking
aid of the totaliser reading in each dispensing unit alongwith their
photographic evidence at the time of start/finish;
(iv) For the purposes of sample reports, the District Judge/
investigating officer are jointly authorised to requisition the quality
check from any of the nearest defence laboratories notified in
the statutory Order, 2005 and quantity check from any of the
centres mentioned in para-22 of the counter affidavit sworn by
the Chief Secretary, Government of U.P. The reports shall be
called for expeditiously and may be requested to be supplied not
later than a period of 6 weeks from the date of submission of
the samples. The reports so obtained may be filed in the
respective courts by the investigating officer after endorsement
by the District Judge;
(v) The seized dispensing machines be released to the owner as
soon as the residual stock in the underground tanks is handed
over to the oil company concerned for which the oil company
shall provide all the transport and custodial facility besides
operational guidance to the investigating officer and learned
District Judge, without asking for any remuneration;
(vi) The investigating officer shall submit the supplementary report
in terms of the observations made in this judgement not later than
a period of two months, by taking over all the materials and record
from the previous investigating officer in the form in which
discovery and seizure were made; and
(vii) The oil companies henceforth shall make use of collapsible
pulsers essential in the dispensing machines in order to prevent
malpractices. Thus, the State Government is directed to implement
the installation of such a device in consultation with the oil
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companies within a planned time framework of not later than four
months."
12. The State as well as one of the accused are in appeal before
this Court. At the outset, learned counsel for the parties stated that the
directions issued by the High Court cannot be sustained in law, therefore,
they have no objection if such directions are set aside. Such directions
are liable to be set aside in view of the fact that the High Court, while
exercising jurisdiction under Section 482 of the Code, cannot interfere
in the manner of investigation, in terms of the Judgment of this Court
in M. C. Abraham and Another v. State of Maharashtra and Others6
wherein it was held as under: -
"13. This Court held in the case of J.A.C. Saldanha [(1980) 1
SCC 554: 1980 SCC (Cri) 272] that there is a clear-cut and welldemarcated sphere of activity in the field of crime detection and
crime punishment. Investigation of an offence is the field
exclusively reserved by the executive through the police
department, the superintendence over which vests in the State
Government. It is the bounden duty of the executive to
investigate, if an offence is alleged, and bring the offender to
book. Once it investigates and finds an offence having been
committed, it is its duty to collect evidence for the purpose of
proving the offence. Once that is completed and the investigating
officer submits report to the court requesting the court to take
cognizance of the offence under Section 190 of the Code of
Criminal Procedure, its duty comes to an end. On cognizance of
the offence being taken by the court, the police function of
investigation comes to an end subject to the provision contained
in Section 173(8), then commences the adjudicatory function of
the judiciary to determine whether an offence has been committed
and if so, whether by the person or persons charged with the
crime. In the circumstances, the judgment and order of the High
Court was set aside by this Court."
13. Therefore, the directions issued including in respect of change
of Investigating Officer and that the District Judge to be associated
with various action, falling exclusively in the domain of the Investigating
Agency are patently beyond the scope of the petition under Section
482 of the Code and are, therefore, liable to be set aside.
6 (2003) 2 SCC 649
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[HEMANT GUPTA, J.]
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14. Learned counsel for the State vehemently argued that the
Act does not exclude the offences under IPC. It is contended that the
Act provides for the offences and penalties but reading of Sections 3
and 51 of the Act does not exclude the offences under the IPC. The
Act will override only those offences which are inconsistent with the
offences under IPC, except to the extent specified in the Act.
15. Learned counsel for the State relied upon an order passed
by this Court in State of Maharashtra v. Sayyed Hassan7 wherein,
while interpreting the provisions of Food and Safety Standards Act,
2006, it was held that the provisions of the said Act is not the only
provision that can be resorted to, the prosecution can be lodged for the
offences under IPC as well. Learned counsel for the State also relied
upon an order passed by this Court in Sangeetaben Mahendrabhai
Patel v. State of Gujarat & Anr.8 wherein, for a dishonour of cheque,
the prosecution for an offence under Section 420 IPC was found to be
maintainable even after the prosecution under Section 138 of the
Negotiable Instruments Act, 18819 is lodged. It was held that the mens
rea i.e. fraudulent or dishonest intention at the time of issuance of
cheque is not required to be proved in proceeding of an offence under
Section 138 of the NI Act, whereas in the case under IPC, the issue
of mens rea is relevant. It was held that the offences under Section
420 of IPC and Section 138 of NI Act are different, may on same facts.
16. On the other hand, Mr. Mukul Rohatgi, learned senior counsel
for the accused argued that the Act is a complete Code providing for
the standards of the weights and measures, the manner in which the
same are required to be tested and also the offences for which the
action can be taken. Since the Act is a special statute having overriding
effect, therefore, the accused cannot be charged for the offences under
IPC. Reliance is placed upon judgment of this Court in Sharat Babu
Digumarti v. Government10 (NCT of Delhi) as also the Division Bench
judgment of Bombay High Court in Gagan Harsh Sharma & Anr. v.
The State of Maharashtra & Anr.11 whereby, considering the
provisions of the Information Technology Act, 200012 , it was held that
the offence under IPC cannot be lodged. It is pointed out that special
7 Criminal Appeal No. 1195 of 2018 decided on September 20, 2018
8 (2012) 7 SCC 621
9 NI Act
10 (2017) 2 SCC 18
11 Criminal Writ Petition No. 4361 of 2018 decided on October 26, 2018
12 IT Act
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leave petitions filed against the said judgment were dismissed by this
Court on December 7, 2018.
17. In this background, the arguments raised by learned counsel
for the parties need to be examined but before we examine the
arguments, certain provisions from the applicable statutes may be
reproduced hereunder:
"THE LEGAL METROLOGY ACT, 2009
2(g). "Legal Metrology" means that part of metrology which
treats units of weighment and measurement, methods of
weighment and measurement and weighing and measuring
instruments, in relation to the mandatory technical and legal
requirements which have the object of ensuring public guarantee
from the point of view of security and accuracy of the
weighments and measurements;
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3. The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in any enactment other
than this Act or in any instrument having effect by virtue of any
enactment other than this Act.
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26. Whoever tampers with, or alters in any way, any reference
standard, secondary standard or working standard or increases
or decreases or alters any weight or measure with a view to
deceiving any person or knowing or having reason to believe that
any person is likely to be deceived thereby, except where such
alteration is made for the correction of any error noticed therein
on verification, shall be punished with fine which may extend to
fifty thousand rupees and for the second and subsequent offence
with imprisonment for a term which shall not be less than six
months but which may extend to one year or with fine or with
both.
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30. Penalty for transactions in contravening of standard
weight or measure. - WhoeverTHE STATE OF UTTAR PRADESH v. AMAN MITTAL
[HEMANT GUPTA, J.]
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(a) in selling any article or thing by weight, measure or number,
delivers or causes to be delivered to the purchaser any
quantity or number of that article or thing less than the
quantity or number contracted for or paid for; or
(b) in rendering any service by weight, measure or number,
renders that service less than the service contracted for or
paid for; or
(c) in buying any article or thing by weight, measure or number,
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 or paid for; or
 (d) in obtaining any service by weight, measure or number,
obtains that service in excess of the service contracted for
or paid for, shall be punished with fine which may extend
to ten thousand rupees, and; for the second or subsequent
offence, with imprisonment for a term which may extend
to one year, or with fine, or with both.
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51. The provisions of the Indian Penal Code and section 153 of
the Code of Criminal Procedure, 1973 in so far as such provisions
relate to offences with regard to weight or measure, shall not
apply to any offence which is punishable under this Act."
"THE CODE OF CRIMINAL PROCEDURE, 1973
153. Inspection of weights and measures.-(1) Any officer in
charge of a police station may, without a warrant, enter any place
within the limits of such station for the purpose of inspecting or
searching for any weights or measures or instruments for
weighing, used or kept therein, whenever he has reason to
believe that there are in such place any weights, measures or
instruments for weighing which are false.
(2) If he finds in such place any weights, measures or instruments
for weighing which are false, he may seize the same, and shall
forthwith give information of such seizure to a Magistrate having
jurisdiction."
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"THE INDIAN PENAL CODE, 1860
265. Fraudulent use of false weight or measure.-Whoever
fraudulently uses any false weight or false measure of length or
capacity, or fraudulently uses any weight or any measure of
length or capacity as a different weight or measure from what
it is, shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with
both.
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267. Making or selling false weight or measure.-Whoever makes,
sells or disposes of any instrument for weighing, or any weight,
or any measure of length or capacity which he knows to be false,
in order that the same may be used as true, or knowing that the
same is likely to be used as true, shall be punished with
imprisonment of either description for a term which may extend
to one year, or with fine, or with both."
18. We do not find any merit in the argument of Mr. Mukul
Rohatgi that the Act is a complete Code which contains the provisions
of offences and penalties under the said Act, therefore, for any violation
of the provisions of the Act, the prosecution can be lodged only under
the Act and not for the offences even if disclosed under IPC.
19. In Sharat Babu Digumarti, an FIR was lodged for the
offences under Sections 292 and 294 of IPC and Section 67 of IT Act.
This Court struck down the offences under Sections 292 and 294 of
IPC in view of the provisions of Section 67 of the IT Act.
20. The question examined was as to whether an activity
emanating from electronic form which may be obscene would be
punishable under Section 292 IPC or Section 67 of the IT Act or both
or any other provision of the IT Act. This Court held that Section 292
IPC makes offence sale of obscene books, etc. but once the offence
has a nexus or connection with the electronic record the protection and
effect of Section 79 cannot be ignored and negated in view of special
provision for a specific purpose. The IT Act has to be given effect to
so as to make the protection effective and true to the legislative intent.
The Court held as under:
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
[HEMANT GUPTA, J.]
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"31. Having noted the provisions, it has to be recapitulated that
Section 67 clearly stipulates punishment for publishing,
transmitting obscene materials in electronic form. The said
provision read with Sections 67-A and 67-B is a complete code
relating to the offences that are covered under the IT Act. Section
79, as has been interpreted, is an exemption provision conferring
protection to the individuals. However, the said protection has
been expanded in the dictum of Shreya Singhal [Shreya Singhal
v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449]
and we concur with the same.
32. Section 81 of the IT Act also specifically provides that the
provisions of the Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time
being in force. All provisions will have their play and significance,
if the alleged offence pertains to offence of electronic record. It
has to be borne in mind that IT Act is a special enactment. It
has special provisions. Section 292 IPC makes offence sale of
obscene books, etc. but once the offence has a nexus or
connection with the electronic record the protection and effect
of Section 79 cannot be ignored and negated. We are inclined to
think so as it is a special provision for a specific purpose and
the Act has to be given effect to so as to make the protection
effective and true to the legislative intent. This is the mandate
behind Section 81 of the IT Act. The additional protection granted
by the IT Act would apply."
21. The Bombay High Court in Gagan Harsh Sharma has found
that even a dishonest and fraudulent act falls within the scope of Section
66 of the IT Act and that the IT Act has been given overriding effect
notwithstanding anything inconsistent therewith, therefore, an offender
gets out of net of IPC. It was held that IPC is a general statute whereas
IT Act is a special statute and, therefore, special enactment would
prevail. The Bombay High Court held as under:
"11. Reading of the said judgment, makes is clear that the Hon'ble
Apex Court had considered the effect of the overriding provisions
contained in the Information Technology Act and has observed
that all the provisions in the enactment are of significance
particularly if the alleged offences pertains to electronic record.
By observing that the Information Technology Act is a special
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enactment and it contain special provision, the Hon'ble Apex
Court has also considered the effect of Section 79 contained in
the Information Technology Act which is enacted for a specific
purpose and has observed that the mandate behind Section 81
of the Information Technology Act needs to be understood in its
proper perspective. It referred to the earlier precedents on the
point where a special statute is pitted against a General
enactment and thereafter has concluded by making reference
Section 79 and 81 that once the special provisions are accorded
overriding effect to cover a criminal Act, the offender gets out
of the net of the Indian Penal Code and in the case in hand of
Section 292.
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21. Keeping the aforesaid authoritative pronouncements in mind,
if the scheme of the Information Technology Act will have to be
examined and given effect too. The said Act which is a special
enactment so as to give fillip to the growth of electronic based
transactions, and to provide legal recognition for E-commerce and,
to facilitate E-Governance and to Ensure Security Practice and
Procedures in the context of the use of Information Technology
Worldwide. The said enactment contains a full fledge mechanism
for penalising certain acts which are committed without
permission of the owner or any other persons who is in charge
of a computer, computer system, or computer network and those
acts are enumerated in Section 43. The said enactment also makes
certain acts punishable and Chapter-XI of the Information
Technology Act 2000 enumerates such acts. The same acts
which are enumerated in Section 43 of the enactment which
would invite penalty and compensation for accessing or securing
any information as contemplated in Section 43, would amount to
an offence under Section 66 if any person, dishonestly,
fraudulently commits such an act. The said Section has an
explanation appended to it to the effect that the word
"dishonestly" and "fraudulently" used in the said Section will be
assigned the same meaning as under the Indian Penal Code. In
such circumstances when the Information Technology Act, 2000
specifically provides a mechanism for dealing with an act covered
in Section 43(a) and (j):-
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
[HEMANT GUPTA, J.]
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"Section 43(a) Accesses or secures access to such
computer, computer system or computer network (or
computer resource);
43(j) Steel, conceals, destroys or alters or causes any
person to steal, conceal, destroy or alter any computer
source code used for a computer resource with an
intention to cause damage."
and if this is done with a fraudulent or dishonest intention, it
becomes an offence under Section 66 of the Information
Technology Act. Since, the Information Technology Act deals with
the use of means of electronic communication and has evolved
a complete mechanism in itself to deal with the offences in the
use of electronic transactions, and in the backdrop of the specific
facts of the case in hand, Section 66 would be attracted and in
view of the mechanism contained in the said section, the
invocation of the provisions of the Indian Penal Code is highly
unwarranted. This view has already been authored by their
lordships in case of Sharat Babu Digumarti (Supra)."
22. It may be noticed that Bombay High Court considered the
judgment of this Court in Sayyed Hassan wherein this Court has held
that an offence under Section 188 of IPC is wider in scope and did not
cover only breach of law but is attracted in cases where the act
complained of causes or tends to cause danger to human life, health or
safety as well. The Court held as under:
"24. The aforesaid judgment of the Hon'ble Apex Court is
therefore clearly distinguishable on facts but even the said
judgment of the Hon'ble Apex Court reiterates the settled position
of law that where an act or an omission constitutes for an
offence under two enactments the offender may be punished
under either or both enactment but was not liable to be punished
twice for the same offence. It is always possible that the same
set of facts can constitute offence under two different laws but
a person cannot be punished twice for the said act which would
constitute an offence."
23. The special leave petition against the said order was
dismissed without any reasoned order but with the order "The Special
Leave Petitions are Dismissed".
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24. Though, the Special Leave Petition against the order of the
Bombay High Court was dismissed but in view of three Judge Bench
judgment in Khoday Distilleries Ltd. & Ors. v. Sri Mahadeshwara
Sahakara Sakkare Karkhane Ltd.13 , the dismissal of special leave
petition does not amount to merger of the order of the High Court with
the order passed in the Special Leave Petition. This Court held as under:
"20. The Court thereafter analysed number of cases where orders
of different nature were passed and dealt with these judgments
by classifying them in the following categories:
(i) Dismissal at the stage of special leave petition - without
reasons - no res judicata, no merger. [Proposition based on
judgments in Workmen v. Cochin Port Trust, (1978) 3 SCC 119;
Western India Match Co. Ltd. v. Industrial Tribunal, AIR 1958
Mad 398; Indian Oil Corpn. Ltd. v. State of Bihar, (1986) 4 SCC
146; Rup Diamonds v. Union of India, (1989) 2 SCC 356; Wilson
v. Colchester Justices, (1985) 2 All ER 97 (HL); Supreme Court
Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187;
Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC
1; V.M. Salgaocar & Bros. (P) Ltd. v. CIT, (2000) 5 SCC 373;
Sree Narayana Dharmasanghom Trust v. Swami Prakasananda,
(1997) 6 SCC 78 and State of Maharashtra v. Prabhakar Bhikaji
Ingle, (1996) 3 SCC 463.
(ii) Dismissal of the special leave petition by speaking or reasoned
order - no merger, but rule of discipline and Article 141 attracted.
[Penu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965
SC 195; Abbai Maligai Partnership Firm v. K.
Santhakumaran, (1998) 7 SCC 386; Shankar Ramchandra
Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74;
Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774;
Gopabandhu Biswal v. Krishna Chandra Mohanty, (1998) 4
SCC 447; Junior Telecom Officers Forum v. Union of India,
1993 Supp (4) SCC 693 and Supreme Court Employees'
Welfare Assn. Case, (1989) 4 SCC 187.
(iii) Leave granted - dismissal without reasons - merger results.
[Thungabhadra Industries Ltd. v. Govt. of A.P., AIR 1964 SC
1372]."
"26. From a cumulative reading of the various judgments, we sum
up the legal position as under:
13 (2019) 4 SCC 376
THE STATE OF UTTAR PRADESH v. AMAN MITTAL
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26.1.
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26.2.