Kerala High Court
M/S. Hindustan Unilever Limited vs The Senior Inspector on 2 November, 2020
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942
Crl.MC.No.6546 OF 2015
AGAINST THE ORDER/JUDGMENT IN ST 2673/2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I,PATHANAMTHITTA
PETITIONER/S:
M/S. HINDUSTAN UNILEVER LIMITED
UNILEVER HOUSE, B.D SAWANT MARG, CHAKALA,
ANDHERI(E),MUMBAI 400 099
BY ADVS.
SRI.P.RADHAKRISHNAN (1)
SRI.MADHU RADHAKRISHNAN
RESPONDENT/S:
THE SENIOR INSPECTOR
LEGAL METROLOGY, KOZHENCHERY TALUK, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
OTHER PRESENT:
SR.PP - SRI. D.CHANDRASENAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
02.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.6546/2015
2
M.R.ANITHA, J.
---------------------------------
Crl.M.C.No.6546 of 2015
---------------------------------
Dated this the 2nd day of November, 2020
ORDER
This is a petition filed under Section 482 Cr.P.C. to quash Annexure A complaint pending before the Judicial First Class Magistrate Court-I, Pathanamthitta numbered as S.T.No.2673/2013 alleging commission of offences under Sections 18, 31, 36 of Legal Metrology Act, 2009 and Rule 32(2) of Legal Metrology (Packaged Commodities) Rules, 2011.
2. The petitioner is a manufacturer of the soap called "Breeze International Toilet Soap'. The soap is having a total weight of 90 gms and is sold for Rs.10/-.
3. The allegation is that at the time of inspection of the respondent/complainant detected the net quantity of soap contained in the packet as a non standard pack size under Rule 2 (d) r/w. the 2nd Schedule of Legal Metrology (Packaged Commodities) Rules, 2011. It is also alleged that Crl.M.C.No.6546/2015 3 principal display panel of the Breeze Intentional Toilet Soap packet packed on 06.01.2013 is having MRP Rs.10 (inclusive of all taxes) and net weight 90 gms (when packed) bear no other mandatory declaration in addition to the declaration specified in Rule 6 (1) of the Rule 2011. According to the complainant, after making the declaration as specified in Rule 6 (1) further declaration of having any non standard pack is necessary. It is also alleged that manufacturing, distributing, delivering, offering, exposing or dispossessing any commodity in packaged form is in contravention to Section 18 of Legal Metrology Act. Rule 2 (d) of Legal Metrology (Packaged Commodities) Rules, 2011 is an offence punishable under Section 36 of the Act. The certified copy of the complaint is produced as Annexure-A. To the show cause notice alleging that the soap were packed in non standard pack size in violation of Section 18 of the Act r/w. Rule 5 and Scheduled II of the Rules and thereby accused committed an offence under Rule 32 and Section 36, petitioner filed reply. According to them, the toilet soap is covered by the notification No.GSR/427(E) dated 05.06.2012. In view of the same, soap with net weight when packed 90 grams, Crl.M.C.No.6546/2015 4 MRP Rs.10/- qualifies as a value based package and no offence in the notice under reference is made out. Copy of the notice is produced as Annexure-B. Copy of the reply is produced as Annexure C. The subsequent reply dated 30.5.2013 stating that it was a value based package and therefore it is exempted from the applicability of the second schedule to Rule 2011 is produced and marked as Annexure- D. To Annexure-D reply, the respondent further sent a reply stating that infringement has been caused by the petitioner by not giving an additional declaration regarding the terms in which the aforesaid toilet soap was kept for sale. According to the respondent/complainant, since the package did not come under the purview of value based package, the same cannot enjoy any relaxation of the amended Package of Commodity Rules and that reply is produced as Annexure-E. So according to the petitioner, the respondent/complainant is changing their stand from stage to stage and initial allegation was that petitioner committed an offence by not packing the product under the standard package and subsequently it is changed and contended that petitioner's product is a value based package and when the explanation Crl.M.C.No.6546/2015 5 was given by the petitioner, respondent/complainant changed the version and stated that petitioner failed to declare the mandatory declarations and thereby committed the offence. So according to the petitioner, declaration as required by the respondent/complainant is not necessary in view of the amendment to Rule 5 whereby the proviso which says about declaration has been deleted. Hence, the petitioner seeks to quash Annexure-A complaint pending before the Judicial First Class Magistrate Court-I, Pathanamthitta as S.T.No.2673/2013.
4. Notice was issued to the respondent and respondent appeared through the learned Public Prosecutor and heard both sides.
5. The main contention of the learned counsel for the petitioner is that admittedly by the respondent the inspection was conducted on 18.2.2013 in the premises of the accused. A toilet soap packed on 16.01.2013 having a declaration of net weight of 90 gm (when packed) manufactured by the accused No.1 was found and it was detected that the net quantity of the Breeze International Toilet Soap contained in the packet is a non standard pack size under Rule 2 (d) r/w. Crl.M.C.No.6546/2015 6 second schedule of the Legal Metrology (Packaged Commodities) Rules, 2011. It is also stated that in the principal display panel of Breeze International Toilet Soap packet packed on 06.01.2013 having MRP Rs.10/- and net weight 90 gms (when packed) bear no mandatory declaration in addition to the declaration specified under Rule 6(1) of the Legal Metrology (Packaged Commodities) Rules, 2011 to pack it in non standard pack size. So the manufacturing, distributing, delivering, offering, exposing or dispossessing the commodity in packaged form is in contravention of Section 18 of Legal Metrology Act and Rule 2 (d) Legal Metrology (Packaged Commodities) Rules, 2011 is an offence under Section 36 of the Act and Rule 32 (2) of the Legal Metrology (Packaged Commodities) Rules, 2011.
6. It is contended by the learned counsel that as per Rule 5 of the Legal Metrology (Packaged Commodities) Rules, 2011 the commodities specified in the second schedule shall be packed for sale, distribution or delivery in such standard quantities as are specified in the schedule. Second schedule serial No.15 clause (c) deals with toilet soap including all kinds of bar soaps (cake) the quantities in Crl.M.C.No.6546/2015 7 which it is to be packed is stated as 25 gms, 50 gms., 75 gms., 100 gms., 125 gms., 150 gms and thereafter in multiples of 50 gms. The learned counsel brought my attention to amendment to Rule 5. For easy understanding, I am quoting Rule 5 after the amendment on 05.6.2012 which reds as follows:
"5. Specific Commodities to be packed and sold in recommend standard packages.- (1) The commodities specified in the Second Schedule shall be packed for sale, distribution, or delivery in such standard quantities as are specified in that Schedule.
xxxx (2) When one or more packages intended for retail sale are groped together for being sold as a retail package on promotional offer, every package of the group shall comply with provisions of rule 6.
(3) Notwithstanding anything contained in the Second Schedule, the manufacturer or importer may sell the value based package in terms of Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs9 and Rs.10 after making the other declarations specified in rule 6. "
7. So on going through the sub rule 3 it would be clear that notwithstanding anything contained in second schedule the manufacturer or importer may sell the value based packages in terms of Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs.9 and Rs.10 after making the other declarations specified in Rule 6. According to the petitioner, the package Crl.M.C.No.6546/2015 8 now seized is value based for Rs.10/- and it contained the declaration as specified in Rule 6 and hence it will very well come within the exemption provided under sub rule 3 of Rule 5. But the contention of the respondent is that as per GSR 427(E) dated 05.6.2012 notification CAD Government of India, an additional declaration of value based package that is the term in which the manufacturer/packer/importer may sell the value based package of Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs.9 and Rs.10 should be declared along with the other declarations specified in Rule 6. Hence, according to them, the packages did not come under the purview of value based packet. Consequently, the petitioner cannot enjoy any relaxation as per GSR 427(E) dated 5.6.2012 (that is liberty to packed commodities in non standard pack size).
8. On going through sub rule 3 of Rule 5 which was introduced as per GSR 427(E) dated 5.6.2012 the contentions so advanced is not seems to be sustainable. What the amended sub rule 3 provides is a clause with nonobstante clause of the second schedule to the rules. The manufacturer or importer is empowered to sell the value based packages for Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Crl.M.C.No.6546/2015 9 Rs.9 and Rs.10 and the only rider is to make the other declarations specified in Rule 6. In otherwords the interpretation of the respondent that the term provided under sub rule 3 prefixed to Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs.9 and Rs.10 etc is an additional declaration regarding the term is not at all seems to be a correct interpretation of the statute. In otherwords the 'terms' therein refers to Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs.9 and Rs.10 stated therein. Now the respondent wanted to introduce an additional term in view of the word 'term' stated in sub rule 3. That according to me is not a correct interpretation of the rule. That is more so because it is a benefit which has been given to the manufactures and importers in selling value based packages for lesser amounts from Rs.1 to Rs.10. So it has be to be interpreted in such a way to advance the intention of the law making authority without giving an interpretation of additional declaration by which an additional burden is imposed upon the manufacturer or importer so as to sell those items specified therein. So I am of the considered view that in view of the amendment to rule 5 by introducing sub rule 3 the Crl.M.C.No.6546/2015 10 manufacturer or importer can sell value based package of Rs.1, Rs.2, Rs.3, Rs.4, Rs.5, Rs.6, Rs.7, Rs.8, Rs.9 and Rs.10 after making the other declarations specified in rule 6. The contention of the respondent to the contra is not seems to be sustainable. So the Annexure A complaint pending before the Judicial First Class Magistrate Court-I, Pathanamthitta as S.T.No.2673/2013 is seems to be an abuse of process of law and is liable to be quashed.
In the result, Crl.M.C. allowed and S.T.No.2673/2013 pending before the Judicial First Class Magistrate Court-I, Pathanamthitta is quashed.
Sd/-
M.R.ANITHA JUDGE shg Crl.M.C.No.6546/2015 11 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A CERTIFIED COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE HON'BLE JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA ANNEXURE B TRUE COPY OF THE REPLY DT 02-05-2013 ISSUED BY THE PETITIONER TO THE RESPONDENT ANNEXURE C TRUE COPY OF THE REPLY DATED 19-07-2013 ISSUED BY THE RESPONDENT TO THE PETITIONER ANNEXURE D TRUE COPY OF THE REPLY DATED 30-05-2013 ISSUED BY THE PETITIONER TO THE RESPONDENT ANNEXURE E TRUE COPY OF THE REPLY DATED 19-07-2013 ISSUED BY THE RESPONDENT TO THE PETITIONER