Madras High Court
N.Karthikeyan vs State Of Tamil Nadu on 30 March, 2021
Author: G.Ilangovan
Bench: G.Ilangovan
Crl.O.P.(MD)No.10325 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 30.03.2021
DATE ON WHICH PRONOUNCED : 21.05.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.10325 of 2017
and
Crl.MP(MD)No.7066 of 2021
N.Karthikeyan ... Petitioner/Accused
Vs.
State of Tamil Nadu, rep by
S.Dhayanithi,
Assistant Inspector of Labour-V,
Madurai. ... Respondent/Complainant
Prayer:Criminal Original Petition is filed under Section 482 Cr.P.C., to call
for the records relating complaint made in S.T.C.No.16 of 2017 on the file
of the learned Additional Chief Judicial Magistrate, Madurai and to quash
the same.
For Petitioner : Mr.B.Babu Rejendran
For Respondent : Mr.M.Ganesan
Government Advocate (Crl.Side)
1/12
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.10325 of 2017
ORDER
This Criminal Original Petition has been filed to quash the proceedings in S.T.C.No.16 of 2017 on the file of the learned Additional Chief Judicial Magistrate, Madurai.
2.The case of the respondent before the Trial Court:-
On 15.11.2016, at about 1.30 p.m, the Assistant Inspector of Labour- V along with his Team members, viz., the Inspector of Labour, the Deputy Inspector of Labour and the Assitant Inspector of Labour, made inspection in the premises of the 'Madurai Malligai', SHA Departure Hall, Madurai Airport, Madurai. At that time, the following violations were noted:-
The name Madurai Malligai was printed. But, the name and address of the manufacturer or packer, common or generic names of commodity, quality, weight and maximum retail price of the commodity were not printed. So, this is a violation of Section 18 (1) of the Legal Metrology Act, 2009, r/w 6 (1) (a) (c) (d) & (e) of the Legal Metrology (Packaged Commodities) Rules, 2011. So, it is liable to be punished under Section 36 (1) of the above said Act.
2/12
https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017
3. Challenging the complaint, the accused is before this Court mainly on the ground that the Assistant Inspector of Labour-V, Madurai is not a competenet person to file a complaint. After bifurcation of Thirupparankundram Taluk, Madurai Airport lies within the jurisdication of Valayankulam Firka of Thirupparankundram Taluk. The definition of Section 2 (L) of the Legal Metrology Act, 2009 will not apply to the present case. If the flower is removed from its package, there will be no increase or decrease in its pre-determined value. So, it will undergo a perceptible change. The flowers were packed only for the purpose of safety or to keep away from the dirt or dust. Instead of putting the flowers in the carry bag, they are put in the open box. If it is sealed, it would be spoiled because it is highly perishable in nature. Before lodging a complaint, no show cause notice was issued. The authorization issued by the Inspector of Labour is not also valid under law. There is no specific averments in the complaint that the petitioner was special in-charge of the Company.
4. Heard both sides.
3/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017
5. A simple question which has been raised by the petitioner in this petition is that Jasmine is a decaying flower, whcih is placed in the packet for the purpose of safety and away from dust and durt. So, it will not come under definition of 'Pre-Packaged Commodity' as defined under Section 2 (L) of the Legal Metrology Act, 2009. This is the only point that has been raised in this petition and will straight away go to the issue. Section 2 (L) of the Legal Metrology Act reads:-
“Pre-packaged Commodity means a commodity which without the pruchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity.”
6. When a commidity is packed in the absence of purchaser, then that will come under the category of 'Pre-packaged Commodity' as defined under the Act.
7. So, the presence of the purchaser, is the deciding factor here. We will proceed with the fact to find out whether it comes under the category of 'Pre-packaged Commidity' or not.
4/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017
8. Here, it is not a case of the petitioner that the package was done in the presence of the purchaser. Originally, the case was heard and reserved for judgment. Later, the same was re-opened for the purpose of knowing the process undertaken by the petitioner for selling the jasmine. The next point that this Court wanted to know from the petitioner is that whether license was given by the Air Port Department.
9. With regard to the first point, the learned counsel for the petitioner would submit that Jasmine and other folowers are not having fixed price value and it depends upon the daily market rate. According to the demand, price will go up and down. So, there cannot be any fixed price for Jasmine. Depending upon the demand, daily price, fixed on the every day morning. But, the point here, which has been submitted by the learned counsel for the petitioner is that Jasmine are procured from the Farms by the petitioner and the process was undertaken for purification. So, it is seen that package is being done in the industry or factory, as the case may be. Iit is not the case of the petitioner, that is brought to the outlet shop in loose and in the presence of weighted purchaser and delivered by putting in the box. So, it will come under the category of 'Packaged Commodity' and as mentioned 5/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017 earlier, the package is brought to the outlet and sold to the consumer. So, the weight is not made in the presence of the purchaser. So, weight must be clearly metioned in the pocket.
10. The contention on the part of the petitioner that only for the purpose of keeping the Jasmine from dust and dirt in stead of putting in a polythene pocket or in a paper they are delivered in pocket cannot be accepted for the above said reason.
11. So, I am of the considered view that it is a 'Pre Packaged Commodity' as defined under the Act. So, the Legal Metrology Act squarely applicable to the Commodity sold by the petitioner.
12. Regarding the next point, there is no document to show in whose name, the shop was taken on lease. The contention on the part of the petitioner that the Company has not been added as an accused, and the absence of Company as a party, criminal prosecution will not lie under the Act. This is a settled basic principle.
6/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017
13. For that purpose, the petitioner would rely upon the number of judgments reported in,
1.Aneeta Hada Vs Godfather Travels and Tours Private Limited (2012) 5 Scc 661.
2.Pepsico India Holdings Private Limited Vs Food Inspector and Another (2011) 1 SCC 176.
14. So, for the purpose of showing that only the Company owns the retail outlet in the Air Port, no document and evidence has been produced by the petitioner. Not even Registration Certificate of the Company has been produced. So, in the absence of any such document on the side of the petitioner, the contention that only the Company owns the outlet and the absence of the Company is fatal to the prosecution, cannot be accepted.
15. Moreover, when we see the wrapper of the pocket, the printing is shown as 'Madurai Malligai, Fragrance of Tradition from the house of SN, which is refers to S.Nagarathinam & Sons, Exporter of Jassmine Flower'. So, whether it is a Company incorporated under the Companies Act, or a Private Concern or a Partnership Concern, is not knwon. In this regard, no 7/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017 document has been produced by the petitioner. So, it a matter for evidence which can be go into at the time of trial. So, this ground is also not available to the petitioner and only the petitioner was found to be an employeer when the respondent undertook the inspection, there is denial on the part of the petitioner on this aspect. Moreover, the case of this nature requires proper evidence and without proper evidence, this Court cannot go into those factual aspects under Section 482 Cr.P.C.
16. Finally, the petitioner would rely upon the following judgments for the purpose of argument that the product, which was sold by him will not come under the category of packaged commodity.
1.Philips India Limited Vs Union of India and Others (2002) 1 LW (Crl.) 211.
2.State of Maharashtra and Others Vs Subhash Arjundas Kataria (2011) 9 SCC 670.
17. But, the Commodities, which were in issue in those two cases are electronic goods. The next contention is that even if we take that it is Pre-packaged Commodities, the informations furnished in the wrapper 8/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017 are sufficient enough to comply the legal requirement of declaration that has to be given under Section 18 of the Act. Here the problem is about the non mentioning of the quantity. The producer's name and phone number and their address are available. But, the quantity is not available. Only on that ground, prosecution is launched. So, the particulars mentioned in the wrapper are not sufficient enough. The particulars and the manner by which declaration must be made is also be mentioned under Rule 6 (1) (a) of the Rule. So, looking the case from any angle, the contention raised by the petitioner cannot be accepted.
18. The next argument is that notice was not served upon him. But, copy of the notice enclosed by the petitioner in the typed set of papers. Whether he has received it or not is also a fact that can be gone into only at the time of trial. So, this ground is also not available to the petitioner, at this stage. The point of jurisdiction of the respondent also a matter of trial and no finding can be recorded on this aspects now. So, for the above reasons, I am of the considered view that this is not a fit case to quash the prosecution and the petitioner is directed to face the prosecution as per the law. 9/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017
19. In the result, this Criminal Original Petition is dismissed. Since the case is of the year 2017, there shall be a direciton to the Additional Chief Judicial Magistrate, Madurai to conclude the trial and dispose of the same within a period of three months from the date of receipt of a copy of this order and the compliance must be reported to the Registry of this Court. Consequently, the connected miscellaneous petition is closed.
21.5.2021 Internet:Yes Index:Yes/No Speaking order/Non-Speaking order dss Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
10/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017 To
1.The I Additional Chief Judicial Magistrate, Madurai.
2.S.Dhayanithi, The Assistant Inspector of Labour-V, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
11/12 https://www.mhc.tn.gov.in/judis/ Crl.O.P.(MD)No.10325 of 2017 G.ILANGOVAN,J., dss Crl.O.P.(MD)No.10325 of 2017 and Crl.MP(MD)No.7066 of 2021 21.5.2021 12/12 https://www.mhc.tn.gov.in/judis/