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Wait and Measure? Analysing the Legal Metrology The proposed changes in the Legal Metrology Act, 2009 to decriminalize repeated offence as a 'one-size-fits-all' remedy may be fairly improbable

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Over the past few months, the government has steadily shortlisted more than 19 legislations and proposed decriminalization of minor offences in such legislations, namely the Companies Act, Negotiable Instrument Act, among various others. The list is getting longer as the latest proposal on decriminalization pertains to the Legal Metrology Act, 2009 ("Act")—an Act which enforces technical and legal standards in relation to weights and measures, and regulates trade in such weights and measures.

As per the Act, if a violation is observed by a Legal Metrology officer (Officer), then the Officer sends a notice to the alleged offender and if such person agrees with the notice, then he/she may pay the requisite compounding fee and close the case. In case the alleged offender does not agree with the charges, they can appeal to the controller, and thereafter, to the state government. However, in cases wherein no appeal is filed; or offence is non-compoundable; or offence is compoundable but the accused has failed to respond to the notice or pay the requisite fee, then the Officer will file the case in the court of law and initiate legal proceedings.

Chapter V of the Act, which deals with "offences and penalties', prescribes imprisonment (and fine) for second or subsequent offence (i.e. in cases where same or similar offence is committed within a period of three years from the first compounded offence). As of July, 2020, the department of consumer affairs, by way of a proposal, was undertaking stakeholder consultation exercise, with the intent of examining whether such second/subsequent offence should be retained as a criminal offence or be converted into a civil penalty (Proposal). The Proposal replaces the imprisonment provision with a fine and proposes a further action of cancellation of license (if compounding is not done after appeal stage). Suggestions on the Proposal were to be sent to the department till August 12, 2020.

It may be noted that the Act deals with varying degrees of offences and penalties, such as penalties on use and sale of unverified weight or measure; manufacture/sale/use of weights and measures not according to prescribed standards; tampering or altering with weights or measures; giving false information to any Officer; sale of commodities by non-standard weight or measure. In such a scenario, it is only possible to decriminalize the offences after suitably categorizing such offences into "compoundable' or "non-compoundable'. This is because for offences to be decriminalized, they should ideally be "minor' hiccups, i.e. not involving mens rea or criminal intent (i.e. fraud versus inadvertent omission); and exclude the larger public interest.

It cannot be disregarded that the Act has a large-scale impact on the society, and flouting the standard units of weights and measures will hamper the objective of accuracy and public guarantee prescribed by the Act. However, the revised penalties under the Proposal significantly raise the upper limit of penalty (i.e. from up to INR 25,000 to INR 2 lakh in many cases and around INR 10 lakh in others). The further possibility of cancellation of license issued to entities (like manufacturer, dealer, repairer) dealing in weights and measures should serve as a strong deterrent factor.

The proposed amendment of the Act has also beamed a kinder light on the directors nominated by a company as persons responsible for conduct of business. The proposed amendment of the Act now permits nomination of persons at managerial level instead of director level as the nominated directors are oftentimes not even available or involved at the time of occurrence of an offence. This is to provide a relief to the directors from round-the-clock fear of prosecution.

As of July 2020, the National Judicial Data Grid shows a pendency of cases in excess of 3.33 crore, out of which 72 per cent cases are criminal cases and 27 per cent are civil cases. The proposed move of decriminalization will definitely aid in de-clogging of the courts, which has been a need of the hour for decades now. The gloomy clouds of backlog and unnecessary delays have also affected the economic activity of the nation. Improvement in backlog of cases will have a positive impact on the legal landscape and consequently improve India's ranking in the "Ease of Doing Business' Index.

However, it must be acknowledged that the complete effectiveness of a "one-size-fits-all' decriminalization remedy is fairly improbable. In such a scenario, the decriminalization remedy provided in the Proposal should only be undertaken for offences other than where mens rea can be attributed. In relation to compoundable offences, as suggested in the Proposal, repeat offenders should be charged with high penalties and subsequent offenders should face strict cancellation of licences. This will safeguard the objectives of "accuracy' and "public guarantee' stipulated under the Act and cause deterrence as well as aid in de-clogging of courts.

About the Author: Pankaj Agarwal, Partner, Shardul Amarchand Mangaldas & Co.; Sagarika Chandel, Associate, Shardul Amarchand Mangaldas & Co.

*Note: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Further, the views in this article are the personal views of the authors.

Pankaj Agarwal & Sagarika Chandel

Shardul Amarchand Mangaldas & Co

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