Bangalore District Court
Sri. K.V. Sudhir vs S/O. K.A. Velukutan on 30 July, 2016
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 30th day of July, 2016
PRESENT :- SRI.N.P.KOPARDE, B.A.,LL.B.(Spl.)
LXI Addl. City Civil & Sessions Judge,
Bengaluru City.
Criminal Appeal No. 320/2010
Appellants/ 1. Sri. K.V. Sudhir,
Accused: S/o. K.A. Velukutan,
Aged about 66 years, C & F agent,
M/s GOOD YEAR India Ltd.,
R/at No.10,Kumbaragudi Road,
New Kalashipalyam Extension,
Bengaluru.
2. M/s Good year South Asia Tyres
Private Ltd., No.H-18, MIDC
Industrial Area, Waluj, Aurangabad,
Maharastra.
(By Sri C.S. Suryakanth ,Adv.)
- Vs -
Respondent / State through
Complainant: The Inspector of Legal Metrology,
Auto & Taxi Unit No.1,
Ali Askar Road,
Bengaluru.
(By Ld. Public Prosecutor)
JUDGMENT
The Appellants/accused have preferred this appeal under Sec.374(3) of Cr.PC assailing the judgment of conviction and 2 sentence passed by the learned 9th ACMM, Bengaluru in C.C.No. 27832/2006 dated 23.03.2010 for the offence punishable u/s 39 r/w 63 of Standard of Weights and Measurement Act, 1976, praying for setting aside the impugned judgment by allowing the appeal.
2. For the sake of convenience, the parties are referred to as their ranks in the Court below.
3. The facts leading to the appeal are as under:
The complainants filed the private complaint before the court below for the alleged offence u/s 39 r/w 63 of the Weights and Measurements Act against the accused No.1 and 2. The accused No.1 is the agent of M/s Good Year India Pvt. Ltd., having its manufacturing of tyres, tubes and flaps. All kinds of Radial tyres are manufactured by accused No.2 company having its head office at Aurangabad.
On 28.2.2006 at about 1.35 p.m. the complainant visited the concern of accused No.1 and found the package of Good year wrangler RTS Steel builted two radial tyres without month and year of the packing and manufacturing as provided under Weights and Measurements Act 1976. After completion of formalities the 3 complainant presented the complaint against the accused. The cognizance of the offence was taken by the court below and summons issued to the accused No.1. The substance of accusation was framed, readover and explained to the accused. The accused No.1 personally and on behalf of accused No.2 pleaded not guilty and claimed for trial.
4. The complainant to substantiate its case, examined himself as PW 1 and examined witness as PW 2 and got marked in all six documents at Ex,.P.1 to Ex.P.6 and got marked two Material Objects as M.O.1 and 2. After closure of the prosecution evidence, the accused No.1 was examined u/s 313 Cr.P.C. wherein Accused No.1 denied the incriminating evidence and examined himself as DW.1 and got marked two documents as per Ex.D.1 and D.2. After hearing both the prosecution as well as defence counsel, the court below come to the conclusion that the accused are guilty of the offences alleged and consequently convicted for the offence punishable u/s 39 r/w 63 of Weights and Measurements Act, 1976 and sentenced to pay fine of Rs.5,000/- each.
5. Being aggrieved by the impugned judgment the appellants came up before this court under appeal challenging the propriety and correctness of the order on the following grounds: 4
6. The Learned Magistrate erred in convicting the appellants without properly considering the defence taken by the appellants. The Learned Magistrate has not properly appreciated the defence of the appellants in the cross-examination of PW 1. During the course of cross-examination PW 1 has admitted that he has verified various tyres and on all the tyres contained all the required information including manufacturing month and year was mentioned, except the two tyres seized. Even in the two tyres also information such as address, product name, size of tyre with tube were mentioned. From this, it is clearly evident that this could have happened from an omission and not commission. This is one of the crucial aspect which has not been considered by learned Magistrate. Moreover, PW 1 also admitted this aspect in cross- examination the appellants had no intention to defraud the customers or retail dealers. If it was so, when they would not have provided any information at all in the tyre as well in the outer wrapper. On the aforesaid reasons, it is prayed to set aside the impugned judgment of conviction by allowing appeal.
7. LCR called for and kept with this file. In response to the notice, the respondent/complainant was represented by Learned Public Prosecutor and it is argued on the part of the complainant 5 that, the findings given by the Court below are just and proper and based on the sound principles of law and evidence. Under such circumstances, interference by this Court in the findings given by the Court below does not require. Hence, it is prayed to dismiss the appeal.
8. Heard both sides and perused the materials placed on record.
9. The points arise for my considerations are:
1. Whether the impugned judgment of the Court below requires any interference by this Court ?
2. What order ?
10. My findings on the above points are as under:
Point No.1 : In the Point No.2 : As per the final order for the following:
REASONS
11. Point Nos.1 to 3:- It is the specific case of the complainant that, on 22.3.2006 at about 1.35 p.m. he visited the shop of accused No.1 who is the agent of accused No.2 complainant. When he inspected the packages in the shop of the accused he found two package of Good year Wrangler RTS Steel Belted radial tyres without any details/label about the month and year of 6 packing and manufacturing. So he issued notice of Ex.P. 1 to the accused No.1 and seized the said tyres i.e. M.O.1 and 2 through a panchanama as per Ex.P 2 in the presence of witnesses. PW 1 and PW 2 reiterated in their evidence as per the complaint averments. Learned counsel for the accused argued that all the details in respect of the tyres are mentioned on the tyre itself and that there is sufficient compliance of the law by the accused No.1 and 2. The wrapper or the outer cover of the tyres were put only to protect the tyres from the dust etc., It is further argued that when a commodity is not pre-packed nor it can be packed, then it has to be deemed as commodity in packed form. Under such circumstances, the provisions of the Act do not apply. It is further argued that there was no mens-rea on the part of the accused No.1 in not mentioning the above details on the outer cover of the tyres. Due to in-advertance the above particulars might have been left out on the outer cover.
12. Section 2(b) of the Act provides that commodity in packaged form means commodity packaged, whether in any bottle, tin, wrapper, or otherwise, in units suitable for sale whether wholesale or retail.
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Rule 6(d) of the Act provides that every package shall bear the month and year in which commodity is manufacture or pre- packed (or imported), Section 39 of the Act provides that quantities and origin of commodities in packed form to be declared and no person shall make, manufacture, pack, shall or cause to the packed or sold or distribute, deliver or cause to be distributed or delivered or offered or expose or possess for sale, any commodity in packaged form to which this part applies. Unless such package bears their on or on a label securely attached thereto. A definite, plain and conspicuous declaration made in the prescribed manner in respect of identity, quantity, number, unit sale price and sale price of package.
13. Admittedly, in this case, the two tyres were not having wrapper containing the above particulars. It is the contention of the accused that those wrappers might have been erased at the time of transit. As rightly pointed out by the court below, all other tyres were having labels/stickers containing details about month and year of manufacturing. Therefore, the chances of erasing or rubbing of the above details only on two tyres are very less. 8
14. The counsel for the accused was not able to elicit any evidence or any admissions from the mouth of PW 1 and 2 to the effect that there are rubbed marks on the wrappers of M.O. No.1 and 2 and that there are traces of printing of the above details on the tyres. As per the contention of the accused, all the details in respect of the tyres are mentioned on the tyre itself and that there is sufficient compliance of the law by the accused No.1 and 2 and that the wrapper or outer cover of the tyres would be put only to protect tyres from the dust. But the law mandates that every package should contain the details in the form of declaration as contained in Section 39 of the Act. Merely because, the particulars shown on the wrappers are also present on tyre itself does not absolve the criminal liability of the accused. The Learned trial Judge has properly observed that when there is a clear mandate the accused cannot interpret the law in their own way to suit their convenience. At another stretch the appellants took the defence that there was no mens-rea on the part of the accused with respect of particulars required under law are not found on the tyre. It is further contended that the product dealt by accused does not require any package and same was used only for presentation to look more attractive and at no point of time wrapper is used as a 9 package etc., But this contention of the accused has been rightly discarded by the court below. It is proper to refer the decision of Hon'ble Apex Court reported in AIR 2006 S.C. 397, in case of M/s Whirlpool of India Ltd., Vs. Union of India and Others, where in the Hon'ble Supreme Court has observed as under:
" A glance at this provision and more particularly to explanation. I would suggest that the Refrigerator is covered under the term pre packed commodity. Even the package of the Refrigerator is required to be open for testing even then the Refrigerator would continue to be pre packed commodity. There are various types of packages defined under the rules and ultimately Rule 3 specifically suggests that the provision of Chapter II would apply to the packages intended for retail sale and the expression package would be construed accordingly. It is not disputed before us that the sale of Refrigerator is covered under the retail sale . Once that position is clear Rule 6 would specifically include the Refrigerator and would carry along with it the requirements that rule of printing certain informations including the sale price on the package. Thus it is clear by being sold by the manufacturer in a packaged form, the Refrigerator would be covered by the provisions of SWM Act and SWM (P.C.) Rules and it would be imperative that MRP has to be interms of Rule 6 which has been referred to above.
The above ruling squarely applicable to the present case in Hand. So the contention of the accused that the wrappers of put on the tyres only to protect it from dust etc., is not accepted. The above provisions are coined by the law makers having some 10 rational behind it. The above provisions cannot be interpreted by the accused according to their convenience. The Learned counsel for the accused relied on some decisions reported in AIR 2006 Bombay 336, and decision of Hon'ble High Court of Madrass in case of Philips India Ltd., Vs. Union of India etc., I have gone through the above decisions but I find that the facts and circumstances of the above case, are different to the facts and circumstances of the present case. Therefore, I am of the considred view that the findings given by the Court below are just and proper and based on sound principles of law and evidence. As such, the interference of this court in the findings of the trial judge is not warranted. Accordingly, I answer Point No.1 in the 'negative.
15. Point No.2: Having regard to my above observations and finding on point No.1 in the 'negative, I proceed to pass the following:-
ORDER The appeal preferred by the appellant/accused under Sec. 374(3)of Cr.PC is hereby dismissed.
Consequently, the judgment passed by the trial Court under the appeal is hereby confirmed.11
Send back the LCR with the copy of this judgment to the Court below forthwith.
(Typed to my dictation on computer directly by the Judgment writer, corrected and then pronounced by me in the open Court on this the 30th day of July, 2016) (N. P. Koparde) LXI Addl. City Civil & Sessions Judge, Bengaluru City.
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