Karnataka High Court
M/S Brakes India Limited vs The Inspector Of Legal Metrology on 13 March, 2023
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CRL.P No. 3184 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 3184 OF 2016
BETWEEN:
1. M/S BRAKES INDIA LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
(PRESENTLY CONVERTED ITSELF AS
BRAKES INDIA PRIVATE LIMITED)
HAVING ITS OFFICE AT
M.T.H. ROAD, PADI,
CHENNAI-600 050
REPRESENTED BY ITS EXECUTIVE DIRECTOR
(OPERATIONS AND FINANCE)
(MR. S. KESAVAN
S/O SEENAPAIA RAO,
AGED ABOUT 75 YEARS)
2. M/S SUNDARAM MOTORS
HAVING ITS OFFICE AT
NO.27, 1ST CROSS,
LORRY GODOWN STREET,
Digitally RMC YARD, YESHWANTHPUR,
signed by BANGALORE-560 022
SUMA REPRESENTED BY ITS
Location: GENERAL MANAGER - PARTS (KARNATAKA)
HIGH MR. M.N. RAVI KUMAR
COURT OF
KARNATAKA S/O MR. D.R. NANJA DEVARU,
AGED ABOUT 59 YEARS
...PETITIONERS
(BY SRI. HARISH V.S., ADVOCATE)
AND:
THE INSPECTOR OF LEGAL METROLOGY
FLYING SQUAD-1,
NO.1, ALI ASKER ROAD,
BANGALORE-560 052
...RESPONDENT
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CRL.P No. 3184 of 2016
(BY SRI. R.D. RENUKARADHYA, HIGH COURT GOVERNMENT
PLEADER)
THIS CRL.P IS FILED UNDER SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.1030/2012 PENDING ON THE FILE OF
CIVIL JUDGE AND JMFC, NELAMANGALA, BANGALORE RURAL
DISTRICT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners have sought for quashing of the proceedings in C.C. No.1030/2012 on the file of Civil Judge and JMFC., Nelamangala, now pending trial before the II Additional Civil Judge and JMFC., Nelamangala, (for short, 'the Trial Court') for the offences punishable under Sections 49 and 36(1) of the Legal Metrology Act, 2009 (for short, 'the Act of 2009').
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.
3. A private complaint under Section 200 of the Cr.P.C. was lodged by the complainant / respondent herein contending that on 17.11.2011 at about 1.30 p.m., he inspected the premises of M/s. Sri Vinayaka Hardware and Automobiles, Rachana Building, Telephone Exchange Road, Nelamangala, Bengaluru Rural District-562 123, and found -3- CRL.P No. 3184 of 2016 three pre-packed packages of EZ cool Radiator coolant from TVS Girling of net content 31 each of Maximum Retail Price (for short, 'M.R.P.') of Rs.642/- packed during July 2011. He found that on these packages, additional label/s was/were affixed to disclose the manufacturer's address. He also found four pre- packed of universal joint cross kit on which additional label/s was/were affixed to declare M.R.P and manufacturing date. The complainant alleged that making such declarations on labels affixed on the pre-packages amounted to violation under the provisions of the Act of 2009 and the Legal Metrology (Packaged Commodities) Rules, 2011 (for short, 'the Rules of 2011').
4. The Trial Court took cognizance of the offences punishable under Sections 49 and 36(1) of the Act of 2009 and issued summons to the accused Nos.1 to 3. The accused No.1 appeared before the Trial Court and he was released on bail. Later, the accused Nos.2 and 3 have challenged the criminal proceedings initiated against them.
5. Learned counsel for the petitioners/accused Nos.2 and 3 submitted that the commodities were packed in pre- -4- CRL.P No. 3184 of 2016 packaged material which could not be exhausted by 30.09.2011 and after making appropriate corrections as provided in the Rules of 2011, same were sent for sale. He relied upon a circular dated 29.04.2011 issued by the Director (Legal Metrology), Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, by which the Controller of Legal Metrology in all States and Union Territories of the Country were directed to give wide publicity to the changes brought by the Rules of 2011, so as to encourage a manufacturer to utilize unused packaging material or wrapper which could not be exhausted by the manufacturer or packer, up to 30.09.2011. Learned counsel also relied upon a circular dated 30.09.2011 issued by the Director (Legal Metrology), Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Legal Metrology Division, by which the changes made to the Rules of 2011 were ordered to be published widely so as to spread awareness amongst the manufacturers / packers. He, therefore, submits that in the present case, the commodities were admittedly packed during July 2011 and labels affixed on the packaged commodities were used only to declare the -5- CRL.P No. 3184 of 2016 manufacturer's address and the M.R.P. and the date of manufacture. He, therefore, submits that the offence punishable under Section 18 or under Section 36(1) or under Section 49 of the Act of 2009 is not committed by the accused Nos.2 and 3 and the Trial Court without proper application of mind had mechanically issued process to the said accused.
6. Learned High Court Government Pleader for the respondent on the other hand, submitted that Section 18 of the Act of 2009 prescribes the mandatory declarations that have to be made on pre-packaged commodities and there is no provision for fixing the labels to make the declaration as prescribed under Section 18 of the Act of 2009 and the Rules of 2011. He, therefore, submits that the petitioners/accused Nos.2 and 3 have committed an offence as prescribed under Rule 6 of the Rules of 2011 and therefore, they are liable to be tried for the said offence.
7. I have considered the submissions made by the learned counsel for the petitioners and learned counsel for the respondent.
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8. Section 18(1) of the Act of 2009 mandates that every pre-packaged commodity shall contain such declarations and particulars in such manner as may be prescribed. Rule 6 of the Rules of 2011 prescribe the declarations to be made on a pre-packaged commodity. Sub-Rules (3), (4) and (6) of Rule 6 of the Rules of 2011 read as follows:
"6. Declarations to be made on every package.-
xxx
3) It shall not be permissible to affix individual stickers on the package for altering or making declaration required under these rules:
Provided that for reducing the Maximum Retail Price (MRP), a sticker with the revised lower MRP (inclusive of all taxes) may be affixed and the same shall not cover the MRP declaration made by the manufacturer or the packer, as the case may be, on the label of the package.
4) It shall be permissible to use stickers for making any declaration other than the declaration required to be made under these rules xxx -7- CRL.P No. 3184 of 2016
6) Any packaging material or wrapper which could not be exhausted by the manufacturer or packer may be used for packing of the material up to 31st March, 2012 or till such date the packaging material or wrapper is exhausted, whichever is earlier, after making the corrections required under these rules by way of stamping or putting sticker or online printing, as the case may be."
In view of sub-rule (6) of the Rules of 2011, any packaging material or wrapper which could not be exhausted by the manufacturer or packer may be used for packing of the material up to 31.03.2012 or till such date the packaging material of wrapper is exhausted, whichever is earlier, after making the corrections as provided under the Rules of 2011, by way of stamping or putting sticker or online printing, as the case may be. Therefore, the respondent without verifying the Rules of 2011 and the circulars issued, wantonly initiated a wrong prosecution of the petitioners.
9. Section 36 of the Act of 2009 operates in a totally different sphere. A coordinate Bench of this Court in Mr. Leo Crasta, M.D. M/s. Leo Consumer Products Private Ltd., and Another v. State of Karnataka, rep. by Inspector of Legal Metrology, Mangalore and Another [ILR 2018 -8- CRL.P No. 3184 of 2016 Karnataka 4040] while considering the question whether an offence under Section 18 of the Act of 2009 was made out so as to invoke Section 36 of the Act of 2009, held as follows:
"Section 18 of the Legal Metrology Act reads as follows:
Sec.18. Declarations on pre-packaged commodities (1) No person shall manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any pre-
packaged commodity unless such package is in such standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed.
(2) Any advertisement mentioning the retail sale price of a pre-packaged commodity shall contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed."
7. Therefore, if Section 18(1) is properly understood, there must be a declaration on the pre- packaged commodities. Thereafter, unless there is -9- CRL.P No. 3184 of 2016 some discrepancy inside the package, regarding the weight, standard quantity and quality and number and such standard quantity or number must be contained inside the said pre-packaged commodity. If there is any violation of Section 18(1), then only section 36(1) is attracted. Section 36(1) reads thus:
"Sec.36 Penalty for selling, etc., of non- standard packages.
(1) Whoever manufactures, packs, imports, sells, distributes, delivers or otherwise transfers, offers, exposes or
possesses for sale, or causes to be sold, distributed, delivered or otherwise transferred, offered, exposed for sale any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act, shall be punished with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.
(2) Whoever manufactures or packs or imports or causes to be manufactured or packed or imported, any pre-packaged
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commodity, with error in net quantity as may be prescribed shall be punished with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees and for the second and subsequent offence, with fine which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both."
(emphasis supplied)
8. On a meaningful understanding of this provision, it is clear that the responsibility is on the persons, who pack the commodity with reference to the articles inside the said pre-packaged packages. If the commodity inside the said package does not conform to the declaration on the package, as provided in the Act, he shall be punished with fine and so on. Therefore, according to Section 18, the packaged commodity should conform to the declaration made on the packages and if there is any difference, then only Section 36 is attracted which is punishable under Section 36(1) of the Act. Therefore, it clearly goes to show that first there must be declaration on the pre-packed packages according to the Rules, that is with regard to the manufacturer's name, address, date of manufacture, packed month and year, maximum retail price and customer care telephone number and with regard to the contents the standard
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CRL.P No. 3184 of 2016quantity of the commodity and number of the articles inside the package. So, if there is any violation with regard to the weight, standard quality and quantity and the number inside the package as against the declaration made, then only Section 18(1) is attracted, which is punishable under Section 36(1) of the Act.".
In the case on hand, it is not that the contents of the package did not conform to the declarations made on the package. Therefore, Section 36 of the Act of 2009 is not attracted to the facts and circumstances of the case.
10. Similarly, Section 49 of the Act of 2009 relates to offences by Companies and power of Court to publish name, place of business etc. for companies convicted. Section 49 of the Act of 2009 would be attracted only after the person responsible or nominated under sub-section (2) of Section 49 of the Act of 2009 is convicted for the offence, but in the present case the accused Nos.2 and 3, are yet to be tried by the Trial Court and therefore, the Trial Court committed an error in blindly taking cognizance of the offence punishable under Section 49 of the Act of 2009 against accused Nos.2 and 3.
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CRL.P No. 3184 of 2016In view of the above, the petition is allowed. The impugned prosecution of the petitioners / accused Nos.2 and 3 in C.C. No.1030/2012 (pending trial before II Additional Civil Judge and JMFC., Nelamangala) by the Civil Judge and JMFC., Nelamangala, for the offences punishable under Sections 36(1) and 49 of the Legal Metrology Act, 2009 is quashed.
Sd/-
JUDGE SMA List No.: 1 Sl No.: 47