1999 P Cr (PLP)

(3) All Deputy Commissioners; and (4) All Additional Deputy Commissioners No.CGPS-1(9)/77 (Sd. Allauddin Ahmad); Secretary

9. I have heard the learned counsel for the contesting parties and gone through the record before me. Learned counsel for the petitioner argued that no notification under section 3/6 of the Act, 1977 had been issued by the competent Authority (District Magistrate, Okara) fixing the sale price of diesel so as to attract the provisions of section 7 of the Act for the criminal liability of the writ petition and other accused. He added that rather no notification in the matter could be issued by the District Magistrate, Okara as diesel has not been included in the Schedule as one of the items about which a notification for fixing the price could be issued. According to him it is not a case of deceiving the complainant so as to attract the provisions of section 420, Pakistan Penal Code. He added that it is not a case of overcharging and that act of less measuring the diesel does not come within the purview of cheating punishable under section 420, Pakistan Penal Code. On the contrary learned Assistant Advocate-General canvassed that the complainant was provided/supplied less quantity of diesel from whom more price was recovered by the accused to the extent of 11/12 liters of diesel who was, thus, criminally liable and that the First Information Report required and desired to be quashed was correctly lodged in view of section 154 of the Code of Criminal Procedure. My view is that the reasoning adopted by the learned counsel for the writ petitioner has to prevail. The police cannot claim the supervisory jurisdiction in such-like matters keeping in view the substantive cum-procedural codified law reproduced above. Without the notification to be issued under section 3/6 of the Act, 1977 for some specified period by the District Magistrate, Okara keeping in view the narrated/included in the above reproduced Schedule of the Act, the matter does not become cognizable and if the aforesaid type of correct notification is issued that is operative for the relevant period contained therein. However, with respect to petrol/diesel gesoline products suffice it to express that the minimum price is fixed by the Federal Government itself and not by the Magistrate of the District under the Act, 1977 who is not made competent thereof as such-like item(s) stand eclipsed from the aforesaid Schedule. Further, it is matter of common knowledge that the prices of diesel/petrol are fixed by the Federal Government as have been announced in the month of July, 1998. It, therefore, becomes clear that the Police, Police Station Choochak, District Okara exceeded its jurisdiction and acted illegally by registering the F.I.R. under the Act, 1977.

10. About the attraction of section 420, Pakistan Penal Code I would express that no fraud was committed. The alleged recovery of more amount of price than due in the matter allegedly by supply of less liters does not come within and is not covered by the definition of "fraud" reproduced above. The less measuring of diesel is to be dealt with under the Punjab Weights and Measures (International System) Enforcement Act, 1975. This section 420, Pakistan Penal Code is mentioned by the police to project its authority to make the offence cognizable, even though bailable, so that the affectee/victim is brought in its grip and control. I, therefore, hold that the petitioner and his co accused are not criminally liable under section 420, Pakistan Penal Code.

11. The cumulative effect of the aforesaid analysis of the matter and discussion is that F.I.R. No. 169 registered on 7-6-1995 at Police Station Choochak, District Okara is without jurisdiction, without authority and, thus, mala fide which is liable to be quashed.

12. At this stage I would myself like to look into, analyse and discuss the matter/dispute contained in the aforesaid First Information Report. It is that according to Riaz Ahmad complainant he was charged price for 226 litres of diesel while he told the concerned salesman that 214 litres of diesel filled the drum whose meter was not correctly running as 226 litres of diesel were shown to have been put in the drum and thus, he was defrauded of the price of 11/12 litres of diesel. As expressed and held above this dispute has not to be taken/considered within the purview of "fraud". It is covered by the Punjab Weights and Measures (International System) Enforcement Act, 1975 (Act No.LII of 1975) published as PLD '1976 Punjab Statutes page 1 and Punjab Weights and Measures (International System) Enforcement Rules, 1976 printed as PLD 1976 Punjab Statutes

45. The provisions of the said Act and Rules do not empower the police to proceed in the matter of less measuring of petrol/diesel and to take cognizance at the instance of Riaz Ahmad complainant to register the First Information Report in dispute.

13. For proper application of law and to ascertain the legislative intent for which it was brought on the Statute Book, it is appropriate to reproduce as under the relevant provisions of the aforesaid Act No.LII of 1975 enforced to regulate the use thereof and to provide for matters connected therewith in the Province of the Punjab:-- "Section,

2. Definitions.

(a) Assistant Controller means Assistant Controller appointed under this Act; (b) "Commercial Weight or Measure" means a weight or measure purporting to be a standard weight or measure used or intended to be used in any transaction of trade or commerce; (c) "Controller" means the Controller appointed under this Act; (d) "Deputy Controller" means the Deputy Controller appointed under this Act; (e) "Government" means the Government of the Punjab; (t) "Inspector" means an Inspector including Assistant Inspector appointed under this Act; (g) "Measuring instrument" includes any instrument for measuring length, area, volume or capacity but does not include a weighing instrument; (j) "Secondary standard" means the sets of weights and measures prepared under section 3 of this Act; (k) "Stamping" means marking in such manner as to be, so far as practicable, indelible and includes casting, engraving, etching or branding; (l) "Trade" means any sale, bargain, transaction dealing or contract and includes collection of tolls and duties; (m) "Verification" means the verification or reverification made under this Act or Rules made thereunder; (n) "Weighing instrument" means any instrument for measuring weight and includes scales with the weights belonging thereto, beamscales, balances, spring balances, steel yards and other weighing machines; and (o) "Working Standard" means the sets of weights and measures prepared under section 4 of this Act. Section

3. Secondary Standards.

(1) For the purpose of verifying the working standard, such standard weights and measures shall be prepared by such authority or person as may be approved by Government, and such weights and measures shall be made of such material, be of such weight, length, form and specification and made in such manner as may be prescribed and shall be stamped in such manner as Government may approve. (2) The standard weights and measures so prepared and stamped shall be called secondary standards. (3) The Secondary Standards shall be kept at such places and by such officers as may be specified by Government. (4) The Secondary Standards shall be verified or reverified with the Reference Standards within the prescribed period and shall be adjusted or renewed, if necessary, and shall be marked with the date of verification in the prescribed manner by such officer as Government may direct. (5) A Secondary Standard which is not so verified, adjusted or renewed and marked within the prescribed period shall not be deemed to be legal and shall not be used for the purpose of this Act. Section

4. Working Standards.-- (1) For the purpose of verifying commercial weights and measures in use, Government may provide such standard weights and measures, which conform to the Reference Standard, as it thinks fit to be Working Standards, and they shall be verified with the Secondary Standards before being stamped. (2) A Working Standard shall not be deemed legal or be used for the purposes of this Act, unless, it has been verified or reverified and marked in the prescribed manner, within such period as may be prescribed before the time at which it is used. (3)A Working Standard which has become defective shall not be legal or be used for the purposes of this Act until it has been reverified and marked in the prescribed manner. (4) The Working Standard shall not be kept at such places, in such manner and by such persons as may be prescribed. Section

5. Standard Weighing and Measuring Instrument.

(1) For the purpose of verifying the weighing instruments and measuring instruments used in trade or commerce, Government may cause to be prepared as many sets of standard weighing instruments and standard measuring instruments as it may consider expedient and the correctness of such instruments shall be verified, and the date of such verification shall be marked, in such manner as may be prescribed. (2) The Standard Weighing instruments and standard measuring instruments shall be kept at all places where the secondary standards or working standards are kept. Section

6. Appointment of Controller, Inspectors, etc.

(1) Government may appoint a Controller of Weights and Measures, Deputy Controllers, Assistant Controllers, Inspectors and Assistant Inspectors of Weights and Measures as it may deem fit. (2) Subject to the provisions of this Act and the Rules, all Deputy Controllers, Assistant Controllers, Inspectors and Assistant Inspectors shall perform their functions under the general superintendence and control of the Controller. (3) The Deputy Controllers and Assistant Controllers, may, in addition to the powers and duties conferred or imposed on them by or under this Act exercise any power or discharge any duty so conferred or imposed on any Inspector. (4) Government may, by general or special order, define the local limits within which each Inspector shall exercise the powers and discharge the duties conferred or imposed on an Inspector by or under this Act. (5) Every Controller, Deputy Controller, Assistant Controller, Inspector and Assistant Inspector shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code (Act No.XLV of 1860). Section

7. Verification and Stampin b y Inspectors.

An Inspector shall, at such place within his jurisdiction and at such time as the Controller may direct, verify a weight, measure, weighing instrument or measuring instrument brought to him for the purpose and shall, if he finds it correct and in conformity with this Act and the rules, stamp it with a stamp of verification in the prescribed manner. Section

8. Power to inspect and verify weights and measures.

An Inspector may, at all reasonable times, inspect and verify with a secondary standard or a working standard or, as the case may be, with a weighing instrument or a measuring instrument prescribed for the purpose, any weight, measure, weighing instrument or measuring instrument which is used in any transaction of trade or commerce or is in possession of any person or is found on any premises for such use, and may, for the purpose of such inspection and verification enter into or upon any place or premises and require any trade or any employee or agent of a trader to produce before him any weight, measure, weighing instrument or measuring instrument or any document or record relating thereto. (2) For the purpose of verifying any weight, measure, weighing instrument or measuring instrument (1) the Inspector may verify the weight or measure of any article sold or delivered in the course of any transaction of trade or commerce. (3) Where any weight, measure, weighing instrument or measuring instrument inspected and verified under subsection (1) is not found to be what it purports to be, the Inspector may seize or detain the same against a receipt. Section

10. Power to adjust weights and measures.

The Controller may, if hp considers it desirable that in any area a weight, measure, weighing instrument or measuring instrument should be adjusted, require an Inspector to adjust in such manner as he may direct, such weight, measure, weighing instrument or measuring instrument and the Inspector shall adjust it accordingly. Section

12. Penalty for neglect or refusal to produce weight or measure, etc. for inspection.

Whoever-- (a) refuses or neglects to produce for inspection under section 8 any weight, measure, weighing instrument or measuring instrument or any document or record relating thereto in his possession or on his premises; or (b) refuses to permit an Inspector to inspect and verify such weight measure, instrument, document or record; or (c) obstructs the entry of an Inspector into or upon any place or premises he is authorised by section 8 to enter; or (d) fails to maintain the records and accounts or to produce them before an Inspector as required under section 11; or (3) otherwise obstructs or hinders an Inspector in the performance of his duties under this Act or the Rules; shall be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to two thousand and five hundred rupees, or with both. Section

14. Prohibition of use of weights and measures other than standard weights and measures.

(1) Notwithstanding anything contained in any other law or any custom or usage or practice, no unit of measure, other than a standard weight or standard measure, shall, after the expiry of six months from the date on which this section has come into force in any area or in relation to any goods or undertakes, in any transaction of trade or commerce or in any dealing or contract. (2) Government may, by notification in the official Gazette, permit the continuance of the use in any area in which, or in relation to any class of goods or undertakings in respect of which, this section has come into force, of such weight or measure which was in use immediately before the date of such coming into force, for such period not exceeding three years from that date, as may be specified in the notification. (3) Whoever contravenes the provisions of subsection (l) shall be punishable with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to two thousand and five hundred rupees, or with both. Section

19. Penalty for forgine or using forged stamps or measures, etc.-- Whoever forges or counterfeits any stamp used under this Act for the stamping of any standard weight or standard measure, or weighing instrument or measuring instrument, or wilfully increases or diminishes a weight or standard measure, or weighing instrument or measuring instrument, or wilfully increases or diminishes a weight or measure so stamped shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to ten thousand rupees, or with both. Section

20. Penalty for using or selling forged weight measure etc.-- Whoever knowingly uses, sells, disposes, of or exposes for sale any weight or measure or weighing instrument or measuring instrument with a forged or counterfeit stamp thereon, or a weight or measure stamped under this Act which has been increased or diminished, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both. Section

27. Cognizance of offences.

No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made before a Magistrate of First Class by the Controller or Inspector or any other person authorised in this behalf by Government. "

14. Following rules are being reproduced from Weights and Measures (International System) Enforcement Rules, 1976:-- "Rule

7. Commercial weights and measures.

All commercial weights, measures of length and measures of capacity shall conform as regards denomination, material used in preparation, construction and design, to the specifications laid down in Schedule V. y Rule

8. Commercial weighing and measuring instruments.

(1) All weighing instruments and measuring instruments used for intended to be used in transactions of trade and commerce shall conform, as regards capacities, material and design to the specification laid down in Schedule VI. (2) The limits of error which may be tolerated in such weighing and measuring instruments at the time of verification, shall be as specified in Schedule VI. (3) A beamscale used in transactions in trade commerce shall be suspended to a stand or to a chain by a hook: Provided that this sub-rule shall not apply to hawkers and persons other than shopkeepers. Rule

9. Periodical verification of commercial weights and measures.

(3) All petrol and fuel pumps shall be verified and stamped in accordance with the provisions of the Act and these rules at least once in every 12 months. Rule

29. Penalty.

Any person who contravenes any provision of these rules shall be punishable with fine which may extend to one thousand rupees."

15. A perusal of the aforesaid sections of Act No.LII, 1975 and Rules, 1976 project that the petrol or other fuel is to be checked by the Inspector or any other person authorised in this behalf by the Government. Thus, neither the complainant could lodge the First Information Report before the police nor the police could take cognizance of the allegation/complaint. Only the Inspector or any other authorised person could check/measure the petrol/fuel pump of writ petitioner. The Inspector could file complaint before the learned Area Magistrate. Since the aforesaid substantive and procedural law has not been followed the First Information Report cannot remain in the field. Rather the First Information Report could not be registered at the police station. Legally the complaint could be lodged by the Inspector or other authorised person by the Government under the Punjab Weights and Measures (International System) Enforcement Act, 1975 and that also before the Ilaqa Magistrate. It means that even the said Inspector could not get registered the F.I.R. It is proper to express that the aforesaid punishments provided under the Act, 1975 and Rules, 1976 are bailable while the instant matter the police arrested the writ petitioner and other accused who had to get themselves admitted to bail.

16. At this stage it is proper to refer to the maxim: "A communi observantia non est recedenum" where a thin, was provided to be done in that manner and, if not so done the same would not be lawful. The important reasoning to be mentioned in the matter is that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings cannot be initiated and consequently processed with. The watertight compartments of jurisdiction have to play the vital legal role and as expressed and held above the police could not proceed against the writ petitioner and his co-accused in view of the aforesaid Special Codification which has preference over the general law. Further, section 5(2) of the Code of Criminal Procedure is also applicable being clear on. the legal proposition that all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regarding the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences.

17. Consequently I hold that the Police, Police Station Choochak had no authority and jurisdiction to register the case regarding the alleged less measuring of the diesel. Rather, as held above, the Police Officers of all ranks cannot check and raid any Petrol Pump/Diesel Pump with respect to the measuring of the same.

18. The contention of the learned Assistant Advocate-General is that due to submission of challan the application under section 249-A of the Code of Criminal Procedure is maintainable and this writ petition should have not been processed with so as to be disposed of on merits. I do not give weight to this assertion on the ground that, as held above, the First Information Report could; not be registered by the police at the instance of Riaz Ahmad complainant as the complaint could only be lodged by the competent Inspector or other authorised person under the Punjab Weights and Measures (International System Enforcement Act, 1975 under section 27 of the said Act, 1975 before the Area Magistrate 1st Class.

19. I, therefore, accept this writ petition and quash F.I.R No.169 registered on 7-6-1995 at Police Station Choochak, District Okara.

20. In view of the legal complexity involved in the matter, leave the parties to bear their own costs. H.B.T./M-922/L Order accordingly