Ratnavel Pandian, J.
1. The State of Tamil Nadu represented by the Public Prosecutor has preferred this appeal against the acquittal of the accused L. T. Pandian by the VII Presidency Magistrate, Egmore, in C. C. No. 12024 of 1973, on his file. A complaint was filed by the Assistant Inspector of Labour, 14th Circle, Madras 28, against the accused, alleging that on 2-6-1973 at 6 P.M. at No. 29, Pycrafts Road, Madras, the accused was found in possession of brass commercial weights of the denomination of 50 grams, 20 grams and 10 grams without bearing the verification stamps, in his business house at the aforesaid address and therefore the accused is said to have committed an offence under Section 25 of the Tamil Nadu Weights end Measures (Enforcement) Act, 1958 (hereinafter referred to as the Act) read with Rule 10 (2) of the Rules framed under the said Act (hereinafter referred to as the Rules). The accused when questioned under Section 242, Cr. P.C., denied the offence.
2. The Assistant Inspector of Labour examined himself as P.W. 1 and testified that he inspected the stainless Steel shop of the accused on 2-6-1973 at 6 p.m. and that at that time the accused, who is one of the partners of the said establishment, was present in his shop. P.W. 1 noticed unstamped brass commercial weights of 50 grams which had been stamped in the first quarter of 1958, weights of 20 grams which had been stamped in 1965 and weights of 10 grams stamped in the 'A' quarter of 1967, marked as M. Os. 1 to 3 respectively, According to P.W. 1, these weights should have been stamped once in two years and as such they should have been stamped in 1971 or 1972. Since they were not so duly stamped as required by the Act, during his inspection he seized them under the mahazar Ex. P-1 wherein the accused also has signed. P.W. 1 issued a show-cause notice under Ex, P-2 asking the accused to explain why he should not be prosecuted. It seems that the accused sent reply to the said notice. Thereafter, after getting the necessary sanction under Ex. P-3, P.W. 1 has laid this complaint.
3. In the course of the cross-examination of P.W. 1, the accused filed a certificate Ex. D-1 dated 7-10-1971 issued by the Assistant Inspector of Labour, 14th Circle, Madras-28, to the effect that weights of 50, 20 and 10 grams are certified to be stamped.
4. Then, when the accused was examined on the evidence of P.W. 1, he said he never used M. Os. 1 to 3 in his business house, but admitted the seizure of M, Os. 1 to 3 by P.W. 1. D.W. 1, the Manager of the shop was examined on the side of the defence. D.W. 1 deposed that the accused had branches in the city and that P.W. 1 visited the shop of the accused on the day in question and seized M. Os. 1 to 3 which were used only as paperweights at the counter and that they were never used for the purpose of weighing.
5. The visit of the accused's shop by P.W. 1 on 2-6-1973 and the seizure of M. Os. 1 to 3 from the counter are all admitted. But, the only point for consideration now is whether M. Os. 1 to 3 had been kept for the purpose of being used in the course of commerce of the accused or whether they had been used only as paperweights. The learned Magistrate of the trial Court has stated that 'on a careful analysis of P.W. 1 and D.W. 1 and Ex. D-1, I am fairly convinced that the accused has succeeded in establishing that there was possibility for his not having used M. Os. 1 to 3 in his business house but instead utilising those weights as paperweights in his shop' and has finally held that the accused was not guilty on the ground that the charge against him had not been sufficiently proved by the prosecution. This appeal, as already stated, is against the order of acquittal by the learned Magistrate.
6. The learned Public Prosecutor, relying on Explanation 1 to Section 25 of the Act, would contend that when the prosecution has established that M. Os. 1 to 3 are found in the possession of the trader (the accused herein), it shall be presumed, until the contrary is proved, that the accused has had them in his possession in transactions of trade, business or commerce. Explanation 1 to Section 25 of the Act reads;-
If any such weight or measure or weighing or measuring instrument is found in the possession of any trader or any employee or agent of such trader, such trader employee or agent shall be presumed, until the contrary is proved, to have had it in his possession for use in transactions for trade, business or commerce.
7. The above point was also raised before the trial Court and the trial Court, in view of the admission of P.W. 1 and the production of Ex. D-1 showing that on behalf of the accused, weights of the denominations of 50, 20 and 10 grams had been verified and stamped by his own department, coupled with the evidence of D.W. 1, explaining that M. Os. 1 to 3 were used only as paper weights, held that there is sufficient rebuttal to the prosecution case as contemplated under Explanation 1 to Section 25 of the Act. I am unable to agree with the observation of the learned Magistrate, for the following reasons: (1) The stamping of the weights of 50, 20 and 10 grams in the year 1971 as per Ex. D-1 dated 7-10-1971 will not in any way rebut the present prosecution case that the accused can be presumed to have used M. Os, 1 to 3 for his trade. (2) When it has been admitted by D.W. 1 in the cross-examination that these weights M. Os. 1 to 3 had been kept at a distance of 2 ft. from the weighing balance, naturally the presumption that follows is that these weights were kept only for the purpose of weighing and not as paper weights. (3) After the inspection, P.W. 1 has served the show-cause notice under Ex. P-2 dated 5-6-1973, i.e. much earlier to the sanction of the prosecution under Ex, P-3 dated 28-9-1973. If really the accused had used these M. Os. 1 to 3 only as paperweights, he would have definitely given an explanation even at the earliest point of time with the present version. The accused has come forward with this kind of defence for the first time only in the course of the cross-examination held on 10-1-1974. Therefore, the long delay on the part of the accused in coming forward with such kind of explanation will certainly lead to the presumption that the accused should have used these M. Os. 1 to 3 for his business, unless the contrary is satisfactorily proved. (4) D W. 1 was employed as a Manager in the accused's shop during the relevant period and as such his evidence is highly interested. He has not deposed that there were other stamped weights in use in the shop apart from M. Os. 1 to 3 which, according to him, were used only as paper weights. Even assuming that duly stamped weights were also kept in the shop, the presumption that M. Os. 1 to 3 were also used for the purpose of weighing materials cannot be ruled out and the onus of proving the contrary heavily lies on the accused, (5) Similarly, Ex. D-1 dated 7-10-1971, a certificate to the effect that certain weights of the denominations of 50, 20 and 10 grams were stamped, will never ipso facto prove that the accused was using only those stamped weights. (6) The other contention raised by the defence that there is no evidence on the side of the prosecution to show that M. Os. 1 to 3 were found in actual use and as such it cannot be said that they were kept in the shop for the purpose of weighing, cannot be countenanced for the simple reasons that Explanation 1 to Section 25 of the Act clearly states that when these weights are found in the possession of any trader, it shall be presumed, until the contrary is proved, that the weights were kept there for use in transactions for trade, business or commerce, and therefore this belated explanation put forth only at the time of cross-examination of P.W. 1 cannot be accepted. N. S. Ramaswami, J. in Bethraj Jain in re (Judgment of this Court in Cr. R. C. No. 915 of 1971 dated 21-12-1972 (Mad)) has held that 'when weights and measures are in the shop, the natural inference is that they had been kept there for being used.
8. For the reasons mentioned above, I have no hesitation to hold that these weights M. Os. 1 to 3 were not kept as paperweights and the accused has not explained with sufficient evidence by way of rebuttal excluding the operation of Explanation 1 to Section 25 of the Act.
9. Mr. Sureshan, appearing for the accused, relied on the decision of the Supreme Court in Noor Khan v. State of Rajasthan : 1964CriLJ167 wherein it has been held that in exercising the power conferred by the Code in cases of appeal against acquittal and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. On the basis of the abovesaid proposition, the learned Counsel contends that the finding of the lower Court should not be disturbed. For my part, having the guidelines laid down by the Supreme Court in the above cited decision in mind, I feel that the learned trial Magistrate has misappreciated the evidence, thus resulting in manifest illegality, and therefore this is a fit case wherein the finding of acquittal has to be reversed. For the foregoing discussions, I set aside the order of acquittal of the accused by the trial Court and convict him of an offence punishable under Section 25 of the Act.
10. Coming to the question of sentence, as the offence is said to have been committed in the year 1973, and as it seems to be the first offence committed by him, I take a very lenient view in imposing penalty. Accordingly, I release him after due admonition under Section 3 at the Probation of Offenders Act.
11. Accordingly, the appeal is allowed.