Kerala High Court
Britannia Industries Limited vs State Of Kerala on 4 July, 2014
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936
Crl.MC.No. 3403 of 2009 ( )
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AGAINST THE ORDER IN CC 145/2009 of J.M.F.C.-II,NEDUMANGAD.
PETITIONER(S):
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1. BRITANNIA INDUSTRIES LIMITED,
HAVING ITS REGISTERED OFFICE AT 5/IA, HUNGERFORD STREET,
KOLKATTA-700 017, HAVING ITS EXECUTIVE
OFFICES AT BRITANNIA GARDENS, VIMANAPURA
OLD AIRPORT ROAD, BANGALORE-560 017.
2. MS.VINATA BALI, MANAGING DIRECTOR,
BRITANNIA INDUSTRIES LIMITED, HAVING ITS
REGISTERED OFFICE AT 5/IA, HUNGERFORD STREET,
KOLKATTA-700 017, HAVING ITS EXECUTIVE
OFFICES AT BRITANNIA GARDENS, VIMANAPURA,
OLD AIRPORT ROAD, BANGALORE-560 017.
BY ADV. SRI.M.K.DAMODARAN (SR.).
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR.
2. INSPECTOR OF LEGAL METROLOGY,
NEDUMANGAD, DISTRICT THIRUVANANTHAPURAM, KERALA.
BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-07-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3403 of 2009 ( )
APPENDIX
PETITIONER'S ANEXURES :
ANNEXURE A1 : TRUE COPY OF THE COMPLAINT BEFORE THE TRIAL
COURT AGAINST THE PETITIOENRS AND ITS RETAILER
AND STOCKIST.
ANNEXURE A2 : TRUE COPY of the SUMMONS RECEIVED BY THE
PETITIOENRS.
ANNEXURE A3 : TRUE COPY OF THE (INDIAN STANDARD)
SPECIFICATION FOR WHEAT MEAL BREAD, RUSK.
ANNEXURE A4 : TRUE COPY OF THE SAMPLE COVER OF THE PRODUCT
SOLD BY THE PETITIONER.
RESPONDENT'S ANNEXURES : NIL.
//TRUE COPY//
P.A TO JUDGE
amk
A.HARIPRASAD, J.
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Crl.M.C No.3403 of 2009
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Dated this the 4th day of July, 2014.
O R D E R
Accused 3 and 4 in C.C No.145/2009 on the file of Judicial First Class Magistrate Court, Nedumangad have come up before this Court seeking the following reliefs under Section 482 Cr.P.C :
"For the reasons stated in above and those to be urged at the time of hearing it is prayed that this Hon'ble Court be pleased to quash the Annexure A1 complaint and allow this Crl.M.C."
2. Annexure A1 is the complaint filed by the complainant/Inspector of Legal Metrology alleging offences under Section 33 of the Standards of Weights and Measures (Enforcement) Act, 1985, Rule 2 (u) and Rule 5 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977.
3. Prosecution case is that the Inspector of Legal Metrology conducted inspection at the trade premises of the first Crl.M.C No.3403 of 2009 2 accused, a retailer, on 19-09-2008 at about 3.45 p.m. Then he detected the packages containing Britannia Premium Bake Suji Toast of net weight 225 gram marketed by the fourth accused in non-standard packages. According to the complainant, as per Rule 2(u) and Rule 5 of the Rules, the commodity comes under the category of 'brown bread' and 'suji' mentioned in the IIIrd Schedule to the Rules. It is alleged that the accused have committed offence under Section 74 of the Act of the Standards of Weights and Measures Act, 1976 r/w Section 33 of the (Enforcement) Act and Section 39 of the above mentioned Act of 1976.
4. Before launching the prosecution, show cause notices were issued to the accused. Annexure A1 is the copy of notices issued by the Inspector to the petitioners. These notices have been scheduled to the complaint. As per the show cause notices, the commodity manufactured and packaged by the accused Crl.M.C No.3403 of 2009 3 comes under the category of 'biscuit'. To this notice, the petitioners sent a reply notice which is also produced along with the complaint. As per the reply notice, the petitioners took a definite stand that "suji toast" is a proprietary product and it is not listed under Schedule III of Rule 5 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Further, it was contended that as suji toast is not specifically mentioned in the Schedule, it can be packed in any quantity and the declaration of non-standards is thereby not required as per the Act. It is the definite version of the petitioners that the commodity did not come under the category of 'biscuit'. On receipt of this reply, the Inspector sent another notice on 19-02-2009. As per the notice referred to above, it is reiterated by the Inspector that the objectionable commodity is suji toast coming under the category of 'bread'. The petitioners again sent a reply on 05-03-2009 detailing the following matters : Crl.M.C No.3403 of 2009 4
"1. Suji Toast is a proprietary product.
2. Our product is not listed under the schedule III Rule 5 of the Standards of Weights & Measures (Packaged Commodities) Act.
3. As Suji Toast is not specifically mentioned in the schedule, it can be packed in any quantity and the declaration of non- standards is thereby not required as per the act.
4. This commodity does not come under the category of 'Bread/Biscuit'.
5. We agree with your Dictionary definition of Toast but once the product is made into a toast it is entirely a different product, totally changed in the characteristics.
6. The bread is soft with 38-40% moisture whereas the toast is firm & crispy with a moisture content of 2-3% maximum. The recipe is also different and varies and the process of manufacturing is also different."
5. Not satisfied with the reply sent, the prosecution was Crl.M.C No.3403 of 2009 5 launched.
6. Heard Sri.M.K.Damodaran, learned Senior counsel for the petitioner and the learned Public Prosecutor Sri.Justin Jacob.
7. Learned Senior counsel submitted that the prosecution is not maintainable since there is no violation of law by the petitioners as contended by the complainant. My attention is drawn to Rule 2(u) of the said Rules which defines the "Standard Package" as a package containing the specified quantity of a commodity.
8. Rule 5 of the Rules reads as follows :
"5. Specific commodities to be packed and sold in recommended standard packages.- The commodities specified in the Third Schedule shall be packed for sale, distribution or delivery in such standard quantities as are specified in that Schedule :
Provided that if a commodity specified Crl.M.C No.3403 of 2009 6 in the Third Schedule is packed in a size other than that prescribed in that Schedule, a declaration that "Not a standard pack size under the Standards of Weights and Measures (Packaged Commodities) Rules, 1997" or "non-standard size under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977" shall be made prominently on the label of such package."
9. IIIrd Schedule of the Rules contains the list of commodities to be packed in specified quantities. According to the original stand of complainant, the objectionable product was 'biscuit'. It can be seen from the IIIrd Schedule that if it were biscuit, it could have been only packed either in 200 grams or 250 grams, but not in 225 grams as in the case of disputed product. However, after sending a reply by the petitioners, the complainant took a stand that the disputed product is a 'brown bread' or 'suji' which falls under either Category 4 or 15 or Crl.M.C No.3403 of 2009 7 combination of both. Learned Public Prosecutor submitted that the disputed product is brown bread because of the definition of the brown bread shown in the complaint with reference to the Oxford Advanced Leaner's Dictionary.
10. Learned Senior counsel for the petitioners contended that the Bureau of Indian Standards, New Delhi has prescribed standards for bread, rusks, white bread and brown bread. Those standards are produced as Annexure A3 series. According to the Bureau of Indian Standards, the bread-rusks should have the following essential ingredients.
" 2. Essential Ingredients.- In the manufacture of bread rusks, the following ingredients shall be used :
a) Wheat flour (MAIDA) conforming to IS :
7464-1974 'Specification for wheat-flour for use in bread industry'.
b) Leavening agents.- The following material, singly or in combination, may be used as Crl.M.C No.3403 of 2009 8 leavening agents in the preparation of bread rusks :
1) Baker's yeast (see IS : 1320-
1988 Specification for baker's yeast (third revision)
2) Barm and hops.
3) Fermented juice obtained from palms, and
4) Lactic acid ferment.
c) Edible common salt (see IS: 253-1970 Specification for edible common salt ( second revision) or iodized salt (see IS :
7224-1973 Specification for iodized salt).
d) Water (see IS: 4251-1967 Quality tolerances for water for processed food industry).
e) Fat-hydrogenated edible vegetable oil (see IS: 10633-1983 Specification for VANASPATI) or refined edible vegetable oil, butter,GHEE, margarine or their mixture.
f) Milk solids (only in the case of milk rusks) -
Milk in any form or milk product such as skimmed milk or milk powder (see IS: 1165- 1986 Specification for milk powder (second Crl.M.C No.3403 of 2009 9 revision), condensed milk (see IS: 1166- 1986 Specification for condensed milk (first revision), or any other milk solids.
g) Semolina (only in the case of SUJI rusks) (see IS: 1010-1968 Specification for SUJI or RAWA (semolina) (first revision)."
11. It is relevant that the complainant has no case that the disputed products were having ingredients prescribed for bread- rusks. Prosecution case is only that it is either brown bread or suji. Learned Senior counsel would contend that even if it is admitted for the sake of argument that it is a combination of brown bread and suji, it would be a distinct and different product, which has not been categorised in Schedule III. It is submitted that even in that case, no offence as alleged will be attracted.
12. Considering the material placed before me, I am of the view that the prosecution case that article is brown bread and suji is not acceptable because those two heads are separately Crl.M.C No.3403 of 2009 10 mentioned in the Schedule and the Schedule does not take any combination of these two items. Hence, I find that the prosecution is without any merit.
In the result, Crl.M.C is allowed. The complaint in C.C No.145/2009 pending before the Judicial First Class Magistrate Court, Nedumangad is hereby quashed.
All pending interlocutory applications will stand dismissed.
A.HARIPRASAD, JUDGE.
amk