Essential Commodities Act, 1955

Transcription

1 Essential Commodities Act, 1955 It is an Act to provide in the interest of the general public for the control of the production, supply and distribution of, and trade and commerce in, certain commodities. The dominant object of the Act is to secure equitable distribution and availability at fair prices of essential commodities in the interest of the general public. IMPORTANT DEFINITIONS Collector Collector includes an Additional Collector, and such other officer not below the rank of sub-divisional Officer as may be authorised to perform the functions and exercise the powers of the Collector under the Act. Essential Commodities (Section 2A) Means a commodity specified in the Schedule. Schedule to the Act lists out following commodities: (1) drugs: (2) fertilizer, whether inorganic, organic or mixed; (3) foodstuffs, including edible oilseeds and oils; (4) hank yarn made wholly from cotton; (5) petroleum and petroleum products; (6) raw jute and jute textiles; (7) (i) seeds of food-crops and seeds of fruits and vegetables; (ii) seeds of cattle fodder; and (iii) jute seeds. Case - S. Samuel, AID. Harrisons Malayava v. Union of India. In this case Supreme Court held that Tea is not foodstuff. Even in a wider sense, foodstuffs will not include tea as tea either in the form of the leaves or in the form of beverage, does not go into the preparation of food proper to make it more palatable and digestible. Tea leaves are not eaten. Tea is a beverage produced by steeping tea leaves or buds of the tea plants in the boiled water. Such tea is consumed hot or cold for its flavour, taste and its quality as a stimulant. The stimulating effect is caused by the presence of caffeine therein. Tea neither nourishes the body nor sustains nor promotes its growth. It does not have any nutritional value. It does not help formation of enzymes nor does it enable anabolism. Tea or its beverage does not go into the preparation of any foodstuff. In common parlance, any one who has taken tea would not say that he has taken or eaten food. Thus tea is not a food. Sugar [Section 2(e)] means: (i) any form of sugar containing more than 90 per cent of sucrose, including sugar candy; (ii) Khandsari sugar or bura sugar or crushedsugar, or any sugar in crystalline or powdered form; or (iii) sugar in process in vacuum pan sugar factory, or raw sugar Page 1

2 Authorities responsible to administer the Act The Central Government at its apex level is responsible for achieving the objectives enshrined by the Parliament under this Act for the welfare and general well-being of all the citizens. Powers of Central Government to control production, supply and distribution etc. of essential commodities [Section 3] The Central Government can issue order in the following circumstances: (i) when it is necessary or expedient for maintaining or increasing supplies of any essential commodity; (ii) for securing the equitable distribution and availability of essential commodities at fair price; or (iii) for securing any essential commodity for the defence of India or the efficient conduct of military operations. Contents of the Order Central Government may issue an order which may provide for all or any of the following matters: (a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity; (b) for bringing under cultivation any waste land; (c) for controlling the price at which any essential commodity may be bought or sold. (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; (f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity. (g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs which in the opinion of the authority making the order, are, or if unregulated, are likely to be detrimental to the public interest; (h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters; (i) for any incidental and supplementary matters, including in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals and the seizure by a person authorised to make such entry, search or examination of any article in respect of which such person has reason to believe that a contravention of the order has been. Fixing the Price of Essential Commodities being sold to Government a) the agreed price, where the price can be agreed upon consistently with the controlled price fixed under this section; (b) controlled price: where no such agreement can be reached, the price calculated with reference to controlled price; Page 2

3 (c) the price calculated at the market rate prevailing in the locality on the date of sale, where neither clause (a) nor clause (b) applies. Fixing the Price of Essential commodities during Emergency This direction will be issued only when the Central Government is of the opinion that takings such step is necessary for controlling price rise or preventing the hoarding of any foodstuff in any locality. The notification issued by the Government shall be in force for 3 months only. For selling specified foodstuffs in the specified locality, the seller shall be paid price therefor as follows: (a) agreed price, when the price can be agreed upon consistently with the controlled price fixed under this sub-section; or (b) the controlled price, when no such agreement can be reached at as stated above; or (c) the market rate price as per the prevailing market rate in the locality at the date of sale where neither of the above clause (a) or (b) apply. Payment of Procurement Price for Food grains and Edible Oil Payment of procurement price of such foodgrains, edible oils or oilseeds as may be specified by State Government with the prior approval of Central Government. Where any person is required to sell to the Central Government or a State Government or any officer or agent of such Government or to a Corporation owned or controlled by such Government any grade or variety of food grains, edible oil and oilseeds in relation to which no notification has been issued, procurement price shall be paid regard to the following facts: (a) the controlled price, if any, fixed under this section or by or under arty other law for the time being in force for such grade or variety of foodgrains, edible oils and oilseeds; (b) the general crop prospects; (c) the need for making such grade or variety of foodgrains, edible oils and seeds available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and (d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of food grains, edible oils and oilseeds. Fixing Price for Sugar to be paid to Producer Where any producer of sugar is required by an order to sell any kind of sugar to the Central or State Government/officer or agent of such government or to any person/class of persons, whether notification is issued or not, the producer shall be paid such price for sugar as the Central Government may, by order, determine having regard to (a) the minimum price, if any fixed for sugar cane by the Central Government under this section; (b) the manufacturing cost of sugar; (c) the duty or tax, if any, paid or payable thereon; and (d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar. The Central Government may determine different prices for different areas from time to time or for different factories or for different kinds of sugar. Page 3

4 Issuance and Service of Order An order made shall be issued and served in the following manner: (a) in the case of an order of general nature or affecting a class of persons be notified in the official gazette; and (b) in the case of an order directed to a specified individual be served on such individual (i) by delivering or tendering it to that individual, or (ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighborhood. Effect of the Order The order made shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. Case:- Ramananda Agrawala v. State Case:- Mohammad Anwar Hussi v. State of Bihar Seizure and Confiscation of Essential Commodities Seizure Means to take possession contrary to the wishes of the owner of the property and that such action is unilateral action of the person seizing. The person from whom anything is seized loses, from the moment of seizure, the right or power to control or regulate the use of that thing. Seizure had been used in connection with the taking of actual physical possession of moveable property. Where any essential commodity is seized in pursuance of an order made, a report of such seizure shall be made, without any unreasonable delay, to the collector of the district in which such essential commodity is seized. The Collector at his discretion, may direct for the production of the seized commodity before him and if he is satisfied that there has been contravention of the order he may pass order for confiscation of (a) the essential commodity so seized, (b) any package, covering or receptacle in which such essential commodity is found, and (c) any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. Confiscation Case:- State of Kerala v. Mathai In this case it was held that confiscation is not to be considered part of the sentence for an offence but is only a mode by which Courts can dispose of property which comes before it in criminal trials. An essential commodity which has been seized could be confiscated. Therefore, confiscation is an action posterior to the seizure of the essential commodity. A commodity that has not been seized cannot be confiscated. Seizure itself does not imply confiscation. Power is conferred on the Collector to confiscate any Animal, vehicle, vessel or other conveyance if used in carrying the essential commodities. Page 4

5 Case:- Ramchandra v. Sub-Inspector of Police In this case it was held that if it was clear from the report of the Sub-Inspector of Police that the jeep in question was not found or used for carrying any essential commodity, it was found moving in front of the lorry which was loaded with paddy, it was held that, by itself was no ground for its seizure. Unless the vehicle was used for carrying the essential commodities, the Deputy Commissioner had no jurisdiction to initiate proceedings for its confiscation. The Collector has no jurisdiction to go into the validity of the seizure; he could only confiscate goods, out of those seized, in respect of which contravention is established. Sale of the Confiscated Commodity Where the collector, on receiving a report of seizure or on inspection of any essential commodity, is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do he may (i) order the same to be sold at the controlled price, if any, fixed for such essential commodity under this Act or under any other law for the time being in force; (ii) where no such price is fixed, order the same to be sold by public auction. In case of food grains, the collector may, for its equitable distribution and availability at fair prices, order the same to be sold through fair price shops at the price fixed by the Central Government or by the State Government as the case may be, for the retail sale of such food grains to the public. Disposal of Sale Proceeds of Confiscated Goods The sale proceeds of the essential commodity sold, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto shall be paid to the owner or person from whom it is seized in the following circumstances: (a) where no order of confiscation is ultimately passed by the Collector; (b) where an order passed on appeal so requires, or (c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted. Issue of Show Cause Notice before Confiscation of Essential Commodity Before passing an order for confiscation, the owner of the essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance or the person from whom it is seized is required to be given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods to provide him an opportunity of making a representation in writing within a reasonable, time and give him a reasonable opportunity of being heard in the matter. No order of confiscation can be made if the owner of the confiscated animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that the said modes of transport owned by him were used in carrying the essential commodity without his knowledge or connivance of himself or his agent, if any, and each of them had taken the necessary precautions against such use. It is not sufficient for the owner to prove that the vehicle carried the essential commodity without his knowledge or concurrence. He must also prove that the vehicle was used without the knowledge, or concurrence of the person in charge of the vehicle. He must prove that not only he but also the person incharge of the vehicle had taken all reasonable and necessary precautions against such use. Page 5

6 Appeal against Confiscation Order Any person aggrieved by an order of confiscation may appeal to the State Government concerned within one month from the date of passing the order. The State Government shall give an opportunity to the appellant to be heard and pass such order as it may think fit, confirming, modifying or annulling the order appealed against. If the appeal has been decided in favour of appellant, he is entitled to the possession of the confiscated goods and if it is not possible for any reason to return the essential commodity seized from him, such person shall be paid the price therefor as if the essential commodity had been sold to the Government with reasonable interest calculated from the day of seizure of essential commodity. Bar of Jurisdiction in Matters of Confiscation No court, tribunal or authority shall have any jurisdiction to make an order with regard to the matters falling within the purview of this Act particularly wherever any essential commodity is seized, when the collector or the judicial authority appointed under this Act shall have the jurisdiction. OFFENCES AND PENALTIES Cognizance of offences Every offence punishable under the Act shall be cognizable i.e. a police officer may arrest a person without a warrant. Before a Court can take cognizance of any offence punishable under the Act, the following conditions must be satisfied:- (i) there must be a report in writing, (ii) the report must be made by a public servant, or any aggrieved person or any recognised consumer association. Penalties Contravention of an order passed by the Central Government under Section 3 with reference to clause (h) or (i) of Sub-section (2) thereof is punishable with imprisonment for a term which may extend to one year and also with fine [Section 7(1)(a)(i)]. For the contravention of an order with reference to other clauses of Sub-section (2) of Section 3 the punishment is imprisonment for a term ranging from three months to seven years and in addition fine is also leviable. Further if any person contravenes any order made under Section 3, any property in respect of which the order has been contravened shall be forfeited to the Government and any package, covering, receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the property,could also be forfeited if the court so orders. If any person to whom a direction is given under Section 3(4) (b) fails to comply with it, he shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. If any person convicted of an offence under Section 7(1)(a)(ii) or 7(2) is again convicted of an offence under the same provision he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years besides fine. Where an offence is committed for a second time, besides the above punishment, the Court can also order that the person shall not carry on any business of that essential commodity for such period not being less than six months as may be specified by the Court. Page 6

7 Mens rea Case:- Nathulal v. State of Madhya Pradesh In this case it was held by the Supreme Court that mens rea or guilty mind is an ingredient of the offence punishable the Essential Commodities Act, 1955 i.e., an intentional contravention of an order made under Section 3, is an essential ingredient of an offence under Section 7. In other words, if the dealer did believe bona fide that he could store the foodgrains for instance, without infringing any order under Section 3, there could be no contravention under Section 7. Case :- Hariprasad Rao v. State In this case it was observed that unless a Statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, an accused cannot be found guilty of an offence against the criminal law unless he has got a guilty mind. Therefore, mens rea is an essential ingredient of an offence under Section 7 of the Act. The Collector before exercising his powers under the section would be entitled to take into consideration the question whether there was an intentional contravention of the order or whether the conduct of the dealer was bona fide under the belief that he was acting legally. In the case of a master and servant the legislature make the master liable for the act of his servants, although the master himself had no mens rea. Case: - State v. Gangaram In this case the charge against the respondents was that they sold some cloth in excess of the controlled price, and thus contravened the provisions of the Madhya Bharat Cotton Control Order; one of the respondents, Gangaram Saboo was not present in the shop at the time the cloth was alleged to have been sold, and it was, therefore, held that he could not be held vicariously liable for the act of his munim who had actually sold the cloth. Page 7

8 The Legal Meteorology Act, 2009 Legal Metrology is the name by which the law relating to weights and measures is known in international parlance. Legal Metrology is very vital for scientific, technological and industrial progress of any country. Legal metrology can be defined as that part of metrology which deals with units of measurement, methods of measurement and measuring instruments in so far as they concern statutory, technical and legal requirements which have the ultimate object of assuring public guarantee from the point of view of security and of appropriate accuracy of measurements. International Organization of Legal Metrology (OIML) The International Organization of Legal Metrology (OIML) is an intergovernmental treaty organization. It was established in 1955 in order to promote the global harmonization of legal metrology procedures. The OIML has developed a worldwide technical structure that provides its Members with metrological guidelines for the elaboration of national and regional requirements concerning the manufacture and use of measuring instruments for legal metrology applications. The OIML develops model regulations, International Recommendations, which provide Members with an internationally agreed-upon basis for the establishment of national legislation on various categories of measuring instruments. Given the increasing national implementation of OIML guidelines, more and more manufacturers are referring to OIML International and Recommendations to ensure that their products meet international specifications for metrological performance and testing. OIML Certificate System for Measuring Instruments The OIML Certificate System for Measuring Instruments was introduced in 1991 to facilitate administrative procedures and lower the costs associated with the international trade of measuring instruments subject to legal requirements. The System provides the possibility for a manufacturer to obtain an OIML Certificate and a Test Report indicating that a given instrument type (pattern) complies with the requirements of the relevant OIML International Recommendations. Certificates are delivered by OIML Member States that have established one or several Issuing Authorities responsible for processing applications by manufacturers wishing to have their instrument types (patterns) certified. Certificates issued by OIML are accepted by national metrology services on a voluntary basis, and as the climate for mutual confidence and recognition of test results develops between OIML Members, the System serves to simplify the type (pattern) approval process for manufacturers and metrology authorities by eliminating costly duplication of application and test procedures. IMPORTANT DEFINITIONS Dealer Means a person who, carries on, directly or otherwise, the business of buying, selling, supplying or distributing any such weight or measure, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration; and includes a commission agent, an importer, a manufacturer, who sells, supplies, distributes or otherwise delivers any weight or measure manufactured by him to any person other than a dealer; Page 8

9 Label Means any written, marked, stamped, printed or graphic matter affixed to or appearing upon any prepackaged commodity; 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; Manufacture Means a person who (i) manufactures weight or measure, (ii) manufactures one or more parts, and acquires other parts, of such weight or measure and, after assembling those parts, claims the end product to be a weight or measure manufactured by himself or itself, as the case may be, (iii) does not manufacture any part of such weight or measure but assembles parts thereof manufactured by others and claims the end product to be a weight or measure manufactured by himself or itself, as the case may be, (iv) puts, or causes to be put, his own mark on any complete weight or measure made or manufactured by any other person and claims such product to be a weight or measure made or manufactured by himself or itself, as the case may be; Pre-packed Commodity Mean a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity. Person "person" includes,- (i) a Hindu undivided family, (ii) every department or office, (iii) every organisation established or constituted by Government, (iv) every local authority within the territory of India, (v) a company, firm and association of individuals, (vi) trust constituted under an Act, (vii) every co-operative society, constituted under an Act, (viii) every other society registered under the Societies Registration Act, 1860; Page 9

10 Premises premises" includes (i) a place where any business, industry, production or transaction is carried on by a person, whether by himself or through an agent, by whatever name called, including the person who carries on the business in such premises, (ii) a warehouse, godown or other place where any weight or measure or other goods are stored or exhibited, (iii) a place where any books of account or other documents pertaining to any trade or transaction are kept, (iv) a dwelling house, if any part thereof is used for the purpose of carrying on any business, industry, production or trade, (v) a vehicle or vessel or any other mobile device, with the help of which any transaction or business is carried on; Repairer Means a person who repairs a weight or measure and includes a person who adjusts, cleans, lubricates or paints any weight or measure or renders any other service to such weight or measure to ensure that such weight or measure conforms to the standards established by or under this Act; Sale Means transfer of property in any weight, measure or other goods by one person to another for cash or for deferred payment or for any other valuable consideration and includes a transfer of any weight, measure or other goods on the hire-purchase system or any other system of payment by instalments, but does not include a mortgage or hypothecation of, or a charge or pledge on, such weight, measure or other goods. Seal Means a device or process by which a stamp is made, and includes any wire or other accessory which is used for ensuring the integrity of any stamp; Stamp Mean a mark, made by impressing, casting, engraving, etching, branding, affixing pre-stressed paper seal or any other process in relation to, any weight or measure with a view to- (i) certifying that such weight or measure conforms to the standard specified by or under this Act, or (ii) indicating that any mark which was previously made thereon certifying that such weight Or measure conforms to the standards specified by or under this Act, has been obliterated; Transaction Means,- (i) any contract, whether for sale, purchase, exchange or any other purpose, or (ii) any assessment of royalty, toll, duty or other dues, or (iii) the assessment of any work done, wages due or services rendered; Page 10

11 Verification Includes, in relation to any weight or measure, the process of comparing, checking, testing or adjusting such weight or measure with a view to ensuring that such weight or measure conforms to the standards established by or under this Act and also includes re-verification and calibration. Appointment and Power of Director, Controller and legal metrology officers Central Government may appoint (by Notification) a Director of legal metrology, Additional Director, Joint Director, Deputy Director, Assistant Director and other employees for exercising the powers and discharging the duties conferred or imposed on them by or under this Act in relation to inter-state trade and commerce. The Director and every legal metrology officer, appointed, shall exercise such powers and discharge such functions in respect of such local limits as the Central Government may, by notification, specify. Every legal metrology officer shall exercise powers and discharge duties under the general superintendence, direction and control of the Director. The Central Government may, with the consent of the State Government and subject to such conditions, limitations and restrictions, delegate such of the powers of the Director as it may think fit to the Controller of legal metrology in the State. State Government may, by notification, appoint a Controller of legal metrology, Additional Controller, Joint Controller, Deputy Controller, Assistant Controller, Inspector and other employees for the State for exercising the powers and discharging the duties conferred or imposed on them by or under this Act in relation to intra State trade and commerce. The Controller and every legal metrology officer so appointed shall exercise such powers and discharge such functions in respect of such local limits as the State Government may, by notification, specify. Every legal metrology officer shall exercise and discharge the duties under the general superintendence, direction and control of the Controller. Power of inspection, seizure Director, Controller or any legal metrology officer may, if he has any reason to believe, whether from any information given to him by any person and taken down in writing or from personal knowledge or otherwise, that any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place and in respect of which an offence punishable under this Act appears to have been, or is likely to be, committed are either kept or concealed in any premises or are in the course of transportation. The powers include entery at any reasonable time into any such premises and search for and inspect any weight, measure or other goods in relation to which trade and commerce has taken place, or is intended to take place and any record, register or other document relating thereto. The power also include seizer of any weight, measure or other goods and any record, register or other document or article which he has reason to believe may furnish evidence indicating that an offence punishable under the Act has been, or is likely to be, committed in the course of or in relation to, any trade and commerce. Where any goods seized are subject to speedy or natural decay, the Director, Controller or legal metrology officer may dispose of such goods in such manner as may be prescribed. Forfeiture Every non-standard or unverified weight or measure, and every package used in the course of, or in relation to, any trade and commerce and seized, shall be liable to be forfeited to the State Government. Page 11

12 However, such unverified weight or measure shall not be forfeited to the State Government if the person from whom such weight or measure was seized gets the same verified and stamped within such time as may be prescribed. Every weight, measure or other goods seized but not forfeited shall be disposed of by such authority and in such manner as may be prescribed. Manufacturers etc. to maintain records and registers Every manufacturer, repairer or dealer of weight or measure shall maintain such records and registers as may be prescribed. The records and registers maintained shall be produced at the time of inspection to the persons authorised for the purpose of Inspection. Declarations on pre-packaged commodities No person shall manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed. Any advertisement mentioning the retail sale price of a pre-packaged commodity shall contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed. Registration for importer of weight or measure No person shall import any weight or measure unless he is registered with the Director. No weight or measure, whether singly or as a part or component of any machine shall be imported unless it conforms to the standards of weight or measure established by or under this Act. Approval of model Every person, before manufacturing or importing any weight or measure shall seek the approval of model of such weight or measure in such manner, on payment of such fee and from such authority as may be prescribed. However, such approval of model may not be required in respect of any cast iron, brass, bullion, or carat weight or any beam scale, length measures (not being measuring tapes) which are ordinarily used in retail trade for measuring textiles or timber, capacity measures, not exceeding 20 litre in capacity, which are ordinarily used in retail trade for measuring kerosene, milk or potable liquors. The prescribed authority may, if he is satisfied that the model of any weight or measure which has been approved in a country outside India conforms to the standards established by or under this Act, approve such model without any test or after such test as he may deem fit. Prohibition manufacture, repair or sale of weight or measure without licence No person shall manufacture, repair or sell, or offer, expose or possess for repair or sale, any weight or measure unless he holds a licence issued by the Controller. However, no licence to repair shall be required by a manufacturer for repair of his own weight or measure in a State other than the State of manufacture of the same. The Controller shall issue a licence in such form and manner, on such conditions, for such period and such area of jurisdiction and on payment of such fee as may be prescribed. Every person having any weight or measure in his possession, custody or control in circumstances indicating that such weight or measure is being, or is intended or is likely to be, used by him in any transaction or for protection, shall, before putting such weight or measure into such use, have such weight or measure verified at such place and during such hours as the Controller may, by general or special order, specify in this behalf, on payment of such fees as may be prescribed. Page 12

13 The Central Government may prescribe the kinds of weights and measures for which the verification is to be done through the Government approved Test Centre. The Government approved Test Centre shall be notified by the Central Government or the State Government, as the case may be, in such manner, on such terms and conditions and on payment of such fee as may be prescribed. Offences and penalties Whoever uses or keeps for use any weight or measure or makes use of any numeration otherwise than in accordance with the standards of weight or measure or the standard of numeration, as the case may be, specified by or under this Act, shall be punished with fine which may extend to 25000/- rupees and for the second or subsequent offence, with imprisonment for a term which may extend to 6 months and also with fine. 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 50000/- 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. Every person who manufactures or causes to be manufactured or sells or offers, exposes or possesses for sale, any weight or measure which, does not conform to the standards of weight or measure specified by or under this Act; or which bears thereon any inscription of weight, measure or number which does not conform to the standards of weight, measure or numeration specified by or under this Act, except where he is permitted to do so under this Act, shall be punished with a fine which may extend to 20000/- rupees and for the second or subsequent offence with imprisonment for a term which may extend to three years or with fine or with both. Whoever, 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 in rendering any service by weight, measure or number, renders that service less than the service contracted for or paid for; or 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 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 10000/- 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 Whoever, being required by or under this Act or the rules made there under to submit returns, maintain any record or register, or being required by the Director or the Controller or any legal metrology officer to produce before him for inspection any weight or measure or any document, register or other record relating thereto, omits or fails without any reasonable excuse, so to do, shall be punished with fine which may extend to 5000 rupees and for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine. Whoever renders or causes to be rendered, any service through means other than the weight or measure or numeration or in terms of any weight, measure or number other than the standard weight or measure, shall be punished with fine which shall not be less than 2000 rupees but which may extend to 5000/- rupees and for the second or subsequent offence, with imprisonment for a term which shall not be less than 3 months but which may extend to one year, or with fine, or with both. Whoever manufactures, packs, imports, sells, distributes, delivers or otherwise transfers, offers, exposes or possesses for sale, or causes to be sold, distributed, delivered or otherwise transferred, offered, exposed for Page 13

14 sale any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act, shall be punished with fine which may extend to 25000/- rupees, for the second offence, with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than 50000/- rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both. Whoever manufactures or packs or imports or causes to be manufactured or packed or imported, any prepackaged commodity, with error in pet quantity as may be prescribed shall be punished with fine which shall not be less than 10000/- rupees but which may extend to fifty thousand rupees and for the second and subsequent offence, with fine which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both. Penalty for counterfeiting of seals Whoever counterfeits any seal specified by or under this Act or the rules made thereunder, or sells or otherwise disposes of any counterfeit seal, or possesses any counterfeit seal, or counterfeits or removes or tampers with any stamp, specified by or under this Act or rules made thereunder, or affixes the stamp so removed on, or inserts the same into, any other weight or measure, shall be punished with imprisonment for a term which shall not be less than 6 months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years. A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced. When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced. Whoever obtains, by unlawful means, any seal specified by or under this Act or the rules made thereunder and uses, or causes to be used, any such seal for making any stamp on any weight or measure with a view to representing that the stamp made by such seal is authorised under this Act, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months hut which may extend to five years. Whoever sells or offers or exposes for sale or otherwise disposes of any weight or measure which, he knows or has reason to believe, bears thereon a counterfeit stamp, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year and for the second or subsequent offence, with imprisonment for a term which shall not be less than six months but which may extend to five years. Offences by companies Where an offence under this Act has been committed by a company, the person, if any, who has been nominated to be in charge of, and responsible to, the company for the conduct of the business of the company; or where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. However, such person shall not be liable to any punishment, if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. Page 14

15 Any company may, by order in writing, authorise any of its directors to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Director or the concerned Controller or any legal metrology officer authorised in this behalf by such Controller in such form and in such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated. It may be noted that where a company has different establishments or branches or different, units in any establishment or branch, different persons may be nominated under this subsection in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. Where an offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Power of the Central Government to make rules In making any rule the Central Government may provide that a breach thereof shall be punishable with fine which may extend to 5000/- rupees. Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. Power of State Government to make rules State Government may make rules, by notification, and after consultation with the entral Government, to carry out the provisions of the Act. State Government may provide that a breach thereof shall be punishable with fine which may extend to 5000/- rupees. Every rule made under this section shall, as soon as may be after it is made, be laid before each House of State Legislature, where there are two Houses and where there is one House of State Legislature, before that House. Page 15

16 LAW RELATING TO SOCIETIES SOCIETIES REGISTRATION ACT, 1860 A registered society is a legal entity but it is not a body corporate. It is separate from its members. It can own properties. It is capable of suing or being sued. The position of a society is comparable with an incorporated company under the Companies Act 1956/2013. The main Act has been continuing to be applicable in all the States with some amendments made by almost all the States in operation, administration and management of societies within the respective States. Registration A society can be registered by minimum 7 individuals which may include foreigners, or registered society for the promotion of literature, science or fine arts or diffusion of useful knowledge and political education or charitable purposes as under:- (i) Grant of charitable assistance. (ii) Creation of military orphan funds. (iii) Societies established at the several Presidencies of India. (iv) Promotion of Science Literature Fine Arts Instructions or diffusion of useful knowledge Diffusion of political education Foundation or maintenance of libraries or reading rooms Public museum and galleries of paintings Works of art Collections of natural history Mechanical and philosophical investments Instruments Designs Case :- Md. Yunus v. The Inspector General of Registration In this case it was held that a "charitable purpose" is a purpose which has some element of general public benefit; it does not embrace purposes which are religious or predominantly religious. Case :- Hindu Public and another v. Rajdhani Puja Samithee and others A charitable purpose includes religious purpose. Procedure for Registration The following documents are required to be filed with the Registrar of Societies for registration of a society:- 1. Covering letter requesting for registration stating various documents annexed to it addressed to the registering authority and signed by all the subscribers to the Memorandum or by a person authorised by all of the them. 2. Memorandum of Association (in duplicate) containing (a) name of the society; (b) the objects of the society; Page 16

17 (c) the names, addresses and occupation of the members of the governing body; (d) the place of registered office of the Society, and (e) the names, addresses and full signatures of the 7 or more persons subscribing their names to the memorandum of Association. Their signatures should be witnessed. 3. Rules & Regulations/Bye-laws (in duplicate) duly signed by at least 3 members of the governing body. 4. Affidavit on non-judicial stamp paper of requisite value by the President or secretary of the society duly attested by Oath Commissioner or Notary Public or Magistrate of first class. 5. Documentary proof such as rent receipt or property tax receipt in respect of the Registered office of the Society or no-objection of the owner of the premises. 6. Registration fee in cash or by demand draft. Important Notes:- The formalities and requirements may differ from State to State. On registration, the society becomes a legal entity or a judicial person apart from its members. Its Rules & Regulations bound its members. It must confine its activities to the sphere embraced by its objects. Any inconsistent object with the provisions of the applicable Act shall be inoperative even after registration. A non-registered society may exist in fact but not in law. A unregistered society cannot claim benefits under the Income tax Act, Rules & Regulations The Rules & Regulations help and guide the members and management of the society in carrying out its objects. They also bind members of the society. The Rules that are inconsistent with the provisions of the Act are inoperative although registered with the Registrar of Societies. The Rules & Regulations of a society may provide for (i) the conditions of admissions of members, (ii) the liability of members for fines, forfeitures under certain circumstances, (iii) the consequence of non-payment of any subscription or fine registration and expulsion of members, (iv) the appointment and removal of trustees and their powers, (v) the manner of appointing and removing the governing body, (vi) the manner in which the notice of meetings may be given, (vii) the quorum necessary for the transactions of business at meetings of the society, (viii) the manner of making, altering and rescinding regulations, (ix) the investment of funds, keeping of accounts and for annual or periodical audit of account, (x) the manner of dissolving the society, (xi) the determination upon the dissolution that the property be utilised by the Government or others in particular manner, (xii) matters to be provided in bye-laws and the manner in which they shall be made, Page 17

18 (xiii) such other matters as may be thought expedient having reference to the nature and objects of the society. Bye-laws of Society A society can make its bye-laws in accordance with the Rules and Regulations of the society. If the rules do not provide for the making of bye-laws, bye-laws can be made at a general meeting of the society at which concurrent votes of three-fifths of the members present shall be necessary. The bye-laws of a society may provide for: (a) The business hours of the society; (b) The objects of the society; (c) The activities of the society in furtherance of its objects; (d) The name of the person or officer, if any, authorised to sue or to be sued on behalf of the society; (e) The name of other person or officer who is empowered to give directions in regard to the business of the society; (f) Enrolment of members (i) (ii) Qualifications for membership, classification, restrictions and conditions etc. The entrance and other fee, or subscription, if any, to be collected from members, (iii) The dates prescribed for payment of the amount specified above and levy of penalties or fine, if any, imposed on defaulting members. (g) Removal of members, the circumstances under which members could be removed from the rolls and the procedure for such removal and appeal, if any, against such removal; (h) Rights, applications, privileges of members; (i) The manner in which the society shall transact its business; (j) The constitution of the Committee and qualifications of the members of the Committee, their term of office and the procedure for their appointment and reappointment; (k) The preparation and filing with the concerned Registrar, of records, annual lists or other statements; (l) Audit of accounts and the balance-sheet for the financial year; (m) The supply of copies of bye-laws, the receipt and expenditure account and of the balance sheet to the members on application and the fee payable for the same; (n) Imposition of fine, if any, for breach of the provisions of the bye-laws by any member or officer; (o) The mode of custody, application and investment of the funds of the society and the extent and conditions of such investment; (p) Funds earmarked specifically for the purpose of making provisions for dependent of a deceased or disabled member and the quantum of payment to be made thereof; (q) Arrangements for transactions of day-to-day business of the society, the expenditure to be incurred therefor, the staff to be employed and condition of services of such employees; (r) (i) Conduct of annual general meetings and procedure therefor, (ii) Conduct of extraordinary general meetings and procedure therefor and the number of members required for making a requisition in writing, calling for such a meeting, Page 18