Karnataka High Court
M/S Studds Accessories Limited vs State Of Karnataka on 1 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2523, 2021 (2) AKR 225
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P. NO.4502 OF 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.4502 OF 2020 (GM-RES)
BETWEEN:
1. M/S STUDDS ACCESSORIES LIMITED
OFFICE ADDRESS NO.23/7, MATHURA ROAD
BALLABGARH, FARIDABAD-121004
REPRESENTED BY
SIDHARTHA BHUSHAN KHURANA
S/O MR. MADHU BHUSHAN KHURANA
AGED ABOUT 42 YEARS
RESIDING AT NO.1349, SECTOR-14
FARIDABAD-121007
2. ABHISHEK AUTOMOBILES
OFFICE ADDRESS NO.56, A.M.ROAD
BANGALORE-560002
REPRESENTED BY
SURENDRA KUMAR
S/O MR. GAVERCHAND
AGED ABOUT 49 YEARS
RESIDING AT NO.85
BHUVAL NIVAS, 2ND FLOOR
1ST CROSS, SHANKARA PARK
SHANKAR MUTT, SHANKARPURAM
BANGALORE SOUTH
BANGALORE-560004
3. SOUL RIDERS
OFFICE ADDRESS OLD NO.46/A
NEW NO.31, LALBAGH MAIN ROAD
OPP. CMS JAIN UNIVERSITY
BANGALORE-560027
REPRESENTED BY:
MANOJ KUMAR
S/O B.GOUTAM CHAND
AGED ABOUT 32 YEARS
W.P. NO.4502 OF 2020
2
RESIDING AT NO.81
4TH CROSS, CHARLES CAMPBEL ROAD
COX TOWN, FRAZER TOWN
BANGALORE NORTH
BANGALORE-560005 ...PETITIONERS
(BY SRI. PRASANNA CHARI K. B. &
SRI. MOHAMMED SHAKEEB, ADVOCATES)
AND:
STATE OF KARNATAKA
REPRESENTED BY THE INSPECTOR
LEGAL METROLOGY DEPARTMENT
INSPECTION SQUAD-II
NO.1, ALI ASKER ROAD
BANGALORE-560 052 ... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA ALONG WITH SECTION
482 OF CR.P.C, PRAYING TO QUASH THE COMPOUNDING
NOTICE AND ALL FURTHER PROCEEDINGS VIDE ANNEXURE-C
BEARING CASE NO./SEIZURE NO.0691550 DATED 28.01.2020
INITIATED BY THE RESPONDENT FOR OFFICES PUNISHABLE
UNDER SECTIONS 36 OF THE LEGAL METROLOGY ACT, 2009
AND ETC.
*****
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING AND HAVING BEEN RESERVED FOR ORDERS ON
04.11.2020, THIS DAY, THE COURT PRONOUNCE THE
FOLLOWING:
W.P. NO.4502 OF 2020
3
ORDER
1. The Petitioner is before this Court seeking:
1.1. Quashing the compounding notice and all further proceedings vide ANNEXURE C bearing Case No./Seizure No.0691550 dated 28.01.2020 initiated by the Respondent for offences punishable under Sections 36 of the Legal Metrology Act, 2009.
1.2. Direct the Respondent not to conduct any further raids or seizures in relation to the Petitioner's products for the offences mentioned in Annexure C hereto;
1.3. Direct the Respondent to compensate the Petitioner for the costs incurred on account of the illegal and unjust seizure;
W.P. NO.4502 OF 2020 4 1.4. Pass such other orders or directions as the Court may deem fit in the circumstances of the case.
Averments in the Petition:
2. It is averred in the Petition that:
2.1. Petitioner No.1 - M/s.Studds Accessories Limited is a highly reputed and world's largest (in terms of volume) manufacturer of motorcycle Safety Accessories (Helmets, Visors etc.) under the brand name "Studds". Petitioner No.2 is its distributor and Petitioner No.3 is its retailer.
2.2. In terms of Section 18 of the Legal Metrology Act (for short, 'LM Act') read with Rule 2(h) and Rule 8 of the Legal Metrology (Packaged Commodities) Rules, 2011 (for short, 'Packaging Rules'), the petitioners are required to comply with the directions in relation to mandatory W.P. NO.4502 OF 2020 5 declarations. The petitioners are required make certain declaration which are to be printed on a Principal Display Panel (for short, 'PDP').
2.3. The mandatory declarations which are common to every product upon which a label is affixed, such as, the name and address of the manufacturer, consumer care details including the address, phone number and email ID etc., are preprinted in the bottom portion of the PDP, the variable details like Maximum Retail Price (for short, 'MRP'), quantity, content, size, manufacturing date, model and colour are printed on a label and affixed on the PDP.
2.4. This practice is being carried out by the petitioner No.1 so as to maintain consistency in the declaration as also to accommodate the above variables which W.P. NO.4502 OF 2020 6 would change from time to time on the basis of the product being sold, the quantity contained in the packaging, description of the contents, the date on which the said product has been manufactured, the model of the product being sold and the colour of the said product.
2.5. Though there are two different operations in terms of the mandatory declarations -
2.5.1. the information which is fixed or would not change being printed on the package itself and 2.5.2. the variables being printed on labels which are affixed on the packaging This is stated to be in compliance with the applicable law viz., LM Act and Packaging Rules.
W.P. NO.4502 OF 2020 7 2.6. Despite petitioner No.1's compliance of the LM Act and the Rules, the respondent- Inspector Legal Metrology Department has seized over 20 full face helmets of the Petitioner on 05.07.2019 from the place of business of one of its dealers i.e., petitioner No.3 alleging that the Petitioner has not made out the mandatory declarations on the package, namely:
2.6.1. the name and complete address of the manufacturer/packer/importer 2.6.2. the consumer care details are not marked which is in violation of Section 18 of the LM Act read with Rule 6(1)(a), Rule 6(1)(b) and 6(1)(aa) of the Packaging Rules, which are punishable under Section 36 of the LM Act.
W.P. NO.4502 OF 2020 8 2.7. It is further alleged that there are no receipt or information provided to petitioner No.3 for such seizure and thereafter a case has been registered and a notice issued under Section 48 of the LM Act on 15.11.2019 to petitioner No.3 in case the petitioner No.3 is interested in compounding the offence.
2.8. On 02.12.2019, the Petitioner's authorised agent represented the case of the petitioners before the Respondent. When the said agent was informed by the Respondent that the preprinted information and the online information was grouped together at two different places in the PDP and as such, the same is not permitted and amounts to non-disclosure of mandatory information and is an offence under the LM Act.
W.P. NO.4502 OF 2020 9 2.9. Thereafter, the Petitioner through its counsel submitted a reply to the Respondent on 24.01.2020 stating that there is no violation of either the LM Act or the Packaging Rules as alleged. The petitioners had also relied on the decision of this Court in the Danone Narang Beverages vs. State of Karnataka in WP No.13060/2013 dated 30.08.2016. 2.10. The Respondent without considering the judgment decided to prosecute the case and conducted further raids and effected seizure of the goods of petitioner No.1. 2.11. Thereafter, Respondent on 27.01.2020 issued a notice to the petitioner No.1 and has ordered the petitioners to personally appear to compound the case or else it has been conveyed that the petitioners will be W.P. NO.4502 OF 2020 10 made a party to the criminal case before the jurisdiction Court.
3. It is in the above background that the petitioners are before this Court seeking for the above reliefs.
4. Sri.Mohammed Shakeeb K.B., learned counsel for the petitioners submitted as under:
4.1. He relied on the decision of this Court in the case of Danone Narang Beverages (Supra) more particularly, Para 5 which is reproduced hereunder for easy reference:
"xxxxx Further, it is noticed that the allegation is against a company. A criminal complaint against an officer of the company without arraigning the company as an accused is no maintainable. (See: Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661).
The complaint would also have to state whether the officer of the company concerned was either in charge of or was responsible for the day to day W.P. NO.4502 OF 2020 11 management and conduct of business of the company. A mere statement that a person is an officer of the company, against which certain allegations are made, is insufficient to make the officer liable, in the absence of specific allegations in his role in the management of the company, (See:Pepsico India Holdings(P)Ltd. V. Food Inspector, (2011)I SCC 176. xxx"
4.2. That as per Section 2(h) of the Rules, the PDP is a total surface area of the package where information can either be grouped together at one place or the preprinted information can be grouped at one place, and the online information can be grouped together in another place, no longer as they are available on the PDP. 4.3. Relying on Rule 4 and Rule 6(1), he submitted that a provision for separate prepackage declaration on the one hand and separate declaration on the label is allowed. The said Rule 2(h), Rule 4, Rule 6 W.P. NO.4502 OF 2020 12 and Rule 8 of the Packaging Rules are hereunder reproduced for easy reference:
"Rule 2(h) "PDP", in relation to a package, means the total surface area of the package where the information required under these rules are to be given in the following manner, namely:-
(i) all the information could be grouped together and given at one place; or
(ii) the preprinted information could be grouped together and given in one place and on line information grouped together in other place:
Rule 4:
Regulation for pre-packing and sale etc., of commodities in packaged form - On and from the commencement of these rules, no person shall pre-pack or cause or permit to be pre-packed any commodity for sale, distribution or delivery unless the package in which the commodity is pre-packed bears thereon, or on a label is securely affixed thereto, such declarations as are required to be made under these rules.
W.P. NO.4502 OF 2020 13 Explanation:- The existence of packages without the declaration of retail sale price within the manufacturer's premises shall not be construed as a violation of these rules and it shall be ensured that all packages leaving the premises of manufacturer for their destination shall have declaration of retail sale price on them as required in this rule.
Rule 6: Declarations to be made on every package:
(1) Every package shall bear thereon or on the label securely affixed thereto, a definite, plain and conspicuous declaration made in accordance with the provisions of this chapter as, to :-
(a) the name and address of the manufacturer, or where the manufacturer is not the packer, the name and address of the manufacturer and packer and for any imported package the name and address of the importer shall be mentioned.
Explanation I.- If any name and address of a company is mentioned on the label without any qualifying words 'manufactured by' or 'packed by', it shall be presumed that such name and address shall be that of the manufacturer and the liability shall be determined accordingly;
Explanation II. - If the brand name and address of the brand owner appear on the label as a marketer, then the W.P. NO.4502 OF 2020 14 brand owner shall be held responsible for any violation of these rules and action as may be required shall be initiated against the deemed manufacturer and in the event of more than one name and address appearing in the label, prosecution shall be launched against the manufacturer indicated on the label in the first place and not against all of them.
Explanation III. - In respect of packages containing food articles, the provisions of this sub-rule shall not apply, and instead, the requirement of the Prevention of Food Adulteration Act, 1954 (37 of 1954) and the rules made there under shall apply;] (aa) The name of the country of origin or manufacture or assembly in case of imported products shall be mentioned on the package;]
(b) The common or generic names of the commodity contained in the package and in case of packages with more than one product, the name and number or quantity of each product shall be mentioned on the package.
(c) The net quantity, in terms of the standard unit of weight or measure, of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package shall be mentioned.
(d) The month and year in which the commodity is manufactured or pre-
W.P. NO.4502 OF 2020 15 packed or imported shall be mentioned in the package.
Provided that for packages containing food articles, the provisions of the [Foods Safety and Standards Act, 2006 (34 of 2006)] and the rules made there under shall apply;
Provided further that nothing in this sub-clause shall apply in case of packages containing seeds which are labeled and certified under the provisions of the Seeds Act, 1966 (54 of 1966) and the rules made there under; *** Provided also that for packages containing cosmetics products, the provisions of the Drugs and Cosmetics Rules, 1945 shall apply.
(da) if a package contains a commodity which may become unfit for human consumption after a period of time, the best before or use by the date, month and year shall also be mentioned on the label;
Provided that nothing in this clause shall apply if a provision in this regard is made in any other law.
Explanation 1.- For the purposes of ths sub-rule,-
(a) the expression "best before"
means the date which signifies the end of the period under any stated storage conditions during which the product shall remain fully W.P. NO.4502 OF 2020 16 marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond the date commodity may still be safe for consumption.
(b) The expression "Use by Date"
means the date which signifies the end of the estimated period under any stated storage conditions after which the product shall not have the quality attributes normally- expected by the consumers and after this date, the commodity should not be regarded as marketable.]
(e) the retail sale price of the package [shall clearly indicate that it is the maximum retail price inclusive of all taxes and the price in rupees and paise be rounded off to the nearest rupee or 50 paise;
Illustrations:- for declaration or retail sale price:
(a) Maximum or Max. retail price Rs.
Or Rs. xx.xx (inclusive of all taxes), or
(b) Maximum or Max. retail price Rs.
Or Rs.xx.xx inclusive of all taxes, or
(c) MRP Rs.or Rs.xx.xx incl. of all taxes, or
(d) MRP Rs. Or Rs.xx.xx (incl. of all taxes):] Provided that for packages containing alcoholic beverages or W.P. NO.4502 OF 2020 17 spirituous liquor, the State Excise Laws and the rules made thereunder shall be applicable within the State in which it is manufactured and where the state excise laws and rules made there under do not provide for declaration of retail sale price, the provisions of these rules shall apply.
[Provided further that if the retail sale price of any essential commodity is fixed and notified by the Competent Authority under the Essential Commodities Act, 1955 the same shall apply.]
(f) Where the sizes of the commodity contained in the package are relevant, the dimensions of the commodity contained in the package and if the dimensions of the different pieces are different, the dimensions of each such different piece shall be mentioned.
(g) such other matter as are specified in these rules:
Provided that -
(A) no declaration as to the month and year in which the commodity is manufactured or pre-packed shall be required to be made on--
(i) any package containing bidi or incense sticks;
(ii) any domestic liquefied petroleum gas cylinder of 14.2kg or 5kg, bottled and marketed by a public sector undertaking;
W.P. NO.4502 OF 2020 18 (B) where any packaging material bearing thereon the month in which any commodity was expected to have been pre-packed is not exhausted during that month, such packaging material may be used for pre-packing the concerned commodity produced or manufactured during the next succeeding month and not there after, but the Central Government may, if it is satisfied that such packaging material could not be exhausted during the period aforesaid by reason of any circumstance beyond the control of the manufacturer or packer as the case may extend the time during which such packaging material may be used, and, where any such packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity;
Provided that the said provision shall not apply to the packages containing food products, where the 'Best before or Use before' period is ninety days or less from the date of manufacture or packing.' (C) no declaration as to the retail sale price shall be required to be made on
(i) any package containing bidi;
(ii) any domestic liquefied petroleum gas cylinder of which the price is covered under the Administrative Price Mechanism of the Government.
W.P. NO.4502 OF 2020 19 Explanation I: The month and the year in which commodity is pre-packed may be expressed either in words, or by numerals indicating the month and the year, or by both.
(2) Every package shall bear the name, address, telephone number, e mail address, if available, of the person who can be or the office which can be, contacted, in case of consumer complaints.] (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.
[(4A) Nothing in this rule shall precllude a manufacturer or packer or importer to declare the following on the package, in addition to the mandatory declarations-
(a) Barcode or GTIN or QR Code:
(b) 'e-code' for net quantity assurance of the commodity and to her required declarations, aster obtaining the same in W.P. NO.4502 OF 2020 20 the manner as specified by the Central Government.
(c) logos of Government schemes, such as SwatchBharat Mission, where such use is authorised by the Central Government.] (5) Where a commodity consists of a number of components and these components are packed in two or more units, for sale as a single commodity, the declaration required to be made under sub-rule (1) shall appear on the main package and such package shall also carry information about the other accompanying packages or such declaration may be given on individual packages and intimation to that effect may be given on the main package and if the components are sold as spare parts, all declarations shall be given on each package.
(6) Any packaging material or wrapper which could not be exhausted by the manufacturer or packer, may be used for packing of the material [upto 31st March, 2012], or till such date the packaging material or wrapper is exhausted, whichever is earlier, after making corrections required under these rules by way of stamping, or putting sticker or online printing, as the case may be.] (7) Every package containing the genetically modified food shall bear at the top of its principal display panel the word "GM".] (8) Every package containing soap, W.P. NO.4502 OF 2020 21 shampoos, tooth pastes and other cosmetics and toiletries shall bear at the top of its principal display panel a red or as the case may be, brown dot for products of non-vegetarian origin and a green dot products of vegetarian origin.] (9) Without prejudice to the provisions contained in this rule, it shall be permissible to affix a label on imported packages for making the declarations required under these rules.] (10) An E-Commerce entity shall ensure that he mandatory declaration as specified in sub-rule (1), except the month and year in which the commodity is manufactured or packed, shall be displayed on the digital and electronic network used for e-commerce transactions:
Provided that in case of market place model of e-commerce, responsibility of the correctness of declarations shall like with the manufacturer or seller or dealer or importer if, -
(a) the function of the e-commerce entity is limited to providing access to a communication system over which information made available by the manufacturer or seller or dealer or importer is transmitted or temporarily stored or hosted; or
(b) the entity does not-
i. initiate the transmission;
W.P. NO.4502 OF 2020 22 ii. select the receiver of the transmission; and iii. select or modify the information contained in the transmission:
(c) the entity observes due diligence while discharging its duty as an intermediary under the Information Technology Act, 2000 and also observes such other guidelines as the Central Government may prescribe in this behalf:
Provided further that there shall not be any protection to the market place e-commerce entity if,-
(a) the entity has conspired or abetted or aided or induced, whether by threats or promise of otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the entity is being used to commit the unlawful act, the entity fails to expeditiously remove or disable access to that material on the resource W.P. NO.4502 OF 2020 23 without vitiating the evidence in any manner.
Explanation.- For the removal of doubts it is hereby clarified that the provision of this sub-rule shall not provide exemption from the declarations required to be made under these rules on pre-packaged commodities delivered to the consumers.] Rule 8: Declaration where to appear.-
(1) Every declaration required to be made under these rules shall appear on the principal display panel. Provided that the area surrounding the quantity declaration shall be free from printed information.
(a) above and below by a space equal to at least the height of the numeral in the declaration, and
(b) to the left and right by a space at least twice the height of numeral in the declaration.
(2) For soft drink, ready to serve fruit beverages or the like, the bottle which is returnable by the consumer for being refilled, the retail sale price may be indicated either on the crown cap, or on the bottle or on both and if the retail sale price is indicated on the crown cap or the bottle, it is sufficient to indicate the retail sale price in the form of 'MRP Rs....'.
W.P. NO.4502 OF 2020 24 4.4. That the goods of the petitioners have been singled out by the Respondent inasmuch as on 16.12.2019, the Respondent's officers seized the goods of petitioner No.1 in Mysore for which no acknowledgement or compounding notices has been issued as of today.
4.5. Furthermore, the Respondent's officers just entered the premises of the retailer without any warrant and singling out the Petitioner No. 1's goods seized them without providing any reasons or alleged violation that may be the cause for such seizure to the retailer and simply informed that the Petitioner No.1-manufacturer is aware of the seizure.
4.6. The procedure for conducting a raid and seizure as laid down by this Court in W.P. NO.4502 OF 2020 25 Reliance Retail Limited Vs. State of Karnataka & Ors reported in ILR 2020 KAR 905 have not been followed. 4.7. What is required is that the information is to be printed on the package in the PDP. As long as the said details are available, there cannot be a cause for the Respondent to find fault with the information that is published on the PDP. 4.8. For the purpose of convenience, the information which is common to all packages is preprinted on the package itself and only the information that is variable that is as regards information that would change for each package is printed on a label and affixed on the package. Thus, he submits that it is in compliance with the requirements of the Act and it cannot be contended that there is any W.P. NO.4502 OF 2020 26 violation of any of the Rules to public by printing and/or grouping the information at two different places.
4.9. That there has been no intention on the part of the petitioners to violate the Act and/or the Rules. In fact, the publication of the information is in compliance with the Act and the Rules which cannot be disputed by the Respondent. 4.10. The practice and printing of the retail price, quantity, size, manufacturing date, model number on the package separately is a common practice and there are many other manufacturers and distributors who follow the same process throughout the country, including Bangalore.
4.11. The petitioners have been singled out and made to suffer the prosecution on account W.P. NO.4502 OF 2020 27 of reasons beyond the knowledge of the petitioners.
4.12. There is no violation of Rule 4 of the Packaging Rules by the Petitioner. All the requirements laid down in the said Rule has been followed by the petitioners in both letter and spirit. (Said Rule 4 has been extracted hereinabove). 4.13. In view of the fact that the packages which have been seized by the Respondent comply with all the relevant stipulations. The seizure itself is bad, no seizure could have occurred, the seizure made is for reasons beyond the scope of the Act and the Rules.
4.14. There has to be a specific allegation made against a person who is arrayed as an accused, the role played in the transaction W.P. NO.4502 OF 2020 28 by each officer has to be categorically stated and only then any proceedings can be initiated against such an officer. 4.15. In the above background, he submits that the Petition as filed is to be allowed. The compounding notice issued is required to be quashed in its entirety.
5. Per contra, Sri.Nageshwarappa, learned HCGP appearing for the respondent-State would submit that:
5.1. there is a violation committed by the petitioners inasmuch as there cannot be a preprinted box which is common to all kinds of packaging.
5.2. The package would have to be specific for each product.
W.P. NO.4502 OF 2020 29 5.3. The grouping of the information under different heads one preprinted, the other as a label is a violation of the applicable Rules inasmuch as all the details have to be printed and cannot be segregated. 5.4. The affixation of the label itself is an offence inasmuch as these details are to be printed on the PDP and not affixed because by way of such affixation of a label, if the label is removed the entire details would be lost and therefore a consumer would not know those details if the label is removed.
5.5. In the above background, he submits that the action taken by the Respondent is proper and correct. There being a violation, the offence could either be compounded and/or defended in Court. The present Writ Petition seeking for quashing of the said W.P. NO.4502 OF 2020 30 complaint is not maintainable and there are no grounds made out for such quashing. Therefore, he submits that the Petition as filed is liable to be dismissed.
6. Heard Sri.Mohammed Shakeeb, learned counsel for the Petitioner and Sri.K.Nageshwarappa, learned HCGP for the Respondent and perused the papers.
7. The points which would arise for determination on the basis of the submissions made and the pleadings filed are as under:
7.1. Whether an Officer under the Legal Metrology Act is required to obtain a warrant for the purpose of search and seizure of a premise/s where goods which are in violation of the Legal Metrology Act and Legal Metrology (Packaged Commodities) Rules, 2011 are located?
W.P. NO.4502 OF 2020 31 7.2. What is the procedure to be followed for search and seizure under the Legal Metrology Act and Legal Metrology (Packaged Commodities) Rules, 2011? 7.3. What is the effect of not following the prescribed procedure for search and seizure?
7.4. Whether the details required for and mandated under Section 2(h), Rule 4 and Rule 8 of the Legal Metrology (Packaged Commodities) Rules 2011 are required to be printed together on the PDP?
7.5. Whether affixation of a label containing some of the variable information would amount to an offence and/or violation of Rule 6(1)(a), Rule 6(1)(b) and Rule 6(1)(aa) of the Legal Metrology (Packaged Commodities) Rules 2011? 7.6. What Order?
8. I answer the above questions as under:
W.P. NO.4502 OF 2020 32
9. Points No. 1, 2 and 3 are already dealt with and answered by this court in Reliance Retail Limited Vs. State of Karnataka & Ors reported in ILR 2020 KAR 905 as under.
10. Answer to Point Nos.1: Whether an Officer under the Act is required to obtain a warrant for the purpose of search and seizure of a premise/s where goods which are in violation of the Act or Rules are located?
10.1. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled. There must exist reasonable grounds for believing that it is necessary for carrying out a search of premises with expediency and that if such a search is not conducted immediately, the conduct of the W.P. NO.4502 OF 2020 33 offence may be expedited and/or the evidence thereof be lost. In such a scenario there must be a recording by the officers named in Section 15(4) of the LM Act, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer on the basis of any information given to him by any person that at the location to be searched, any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place, an offence punishable under the Act appears to have already been committed or is about to be committed has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled a search without warrant and the goods seized during such search would be without W.P. NO.4502 OF 2020 34 jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person or persons in the premises.
11. Answer to Point No.2: What is the procedure to be followed for search and seizure under the Legal Metrology Act and Legal Metrology (Packaged Commodities) Rules, 2011?
11.1. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion and the same should not result in harassment of innocent persons. When a search is made with a warrant the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even when a W.P. NO.4502 OF 2020 35 search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made by following the safeguards enshrined under the Cr.P.C.
11.2. A lady officer is required to be present since most such premises may have ladies working.
11.3. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior. 11.4. The officers before starting the search are required to disclose their identity by W.P. NO.4502 OF 2020 36 showing their identity cards to the owner of the premises.
11.5. Search should be made in the presence of two independent and respected witnesses of the locality.
11.6. A Panchnama/Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search. 11.7. After examination of the seized goods or things by the authority, the original of the W.P. NO.4502 OF 2020 37 samples to be sent for any technical/forensic examination within a period of 72 hours thereof.
11.8. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search. 11.9. A copy of the Panchnama/Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.
12. Answer to Point No.3: What is the effect of not following the prescribed procedure for search and seizure?
12.1. In the event of said procedure not being followed and or if the search is conducted in violation of the prescribed laws, then the W.P. NO.4502 OF 2020 38 search would be no search at all, it would be illegal and any item seized during such a search would be inadmissible as evidence. The courts would have to disregard any information, documents, things and or goods seized during such a search holding that illegal search carried out has vitiated everything. In such cases, action cannot be allowed to be taken by the Authorities pursuant to an illegal search or seizure.
12.2. In view of the procedural requirements not having been followed in the present case the Respondent officers having entered the premises of the retailer and specifically targeting the product of the Petitioner and seizing 20 products. There being no warrant, which has been obtained by the Respondent, nor any recordal of reasons W.P. NO.4502 OF 2020 39 made, no panchanama drawn up, let alone furnished. I am of the considered opinion that the search and seizure, which has been conducted by the Respondent is not proper and correct. There are no reason forthcoming as to how the respondent- Inspector could enter into the premises of the 3rd Petitioner and seize the goods without a warrant. Such search and seizure is therefore declared invalid.
13. Answer to Point No.4: Whether the details required for and mandated under Section 2(h), Rule 4 and Rule 8 of the Legal Metrology (Packaged Commodities) Rules 2011 are required to be printed together on the PDP?
14. Answer to Point No.5: Whether affixation of a label containing some of the variable information would amount to an offence and/or violation of Rule 6(1)(a), Rule 6(1)(b) and Rule 6(1)(aa) of the Legal Metrology (Packaged Commodities) Rules 2011?
W.P. NO.4502 OF 2020 40 14.1. Points no.4 and 5 being related to each other are together answered as under:
14.2. The violation as stated in the notice dated 15.11.2019 issued under Section 48 of the LM Act for compounding is as under:
"Violation found:
1. The mandatory declaration are not made on the package
2. the name and complete address of the manufacturer/Packer/importer is not marked
3. consumer details are not marked, 14.3. It is on the above basis, it is stated that it would amount to violations and constitute an offence under Section 18 of the LM Act read with Rule 6(1), Rule 6(1)(a), Rule 6(2) of the Packaging Rules and are punishable under Section 36 of the LM Act.
W.P. NO.4502 OF 2020 41 14.4. A photograph of the package has been produced at Annexure-E, Page 29 to the writ petition. On enquiry, Shri. Nageshwarappa, learned HCGP would submit that the photograph produced is of the seized package.
14.5. The PDP as per the seized package contains a label with a Bar-Code affixed on it containing the following details:
"IAS 4151 with ISI mark, MRP Rs.895 inclusive of all taxes, quantity 1 No., content full-faced helmet, Size 580 MM (large), Manufacturing date 27.11.2019, Model: Chrome Economic, Colour: Black be centre strip"
14.6. The printed area contains the brand name Studds and below that are the following details:
"Head protection technology manufactured by Studs Accessories Ltd, W.P. NO.4502 OF 2020 42 23/7, Mathura Road, Ballagagh, Faridabad 121004, Hariyana (India).
Registered office: Studs Accessories Ltd, 23/7, Mathura Road, Ballagagh, Faridabad 121004 Hariyana (India) Phone 0129 4296500 email info at studs.com customer care: customer care executive 23/7, Mathura Road, Ballagagh, Faridabad 121004, Hariyana (India) Phone 0129, 4296 555 Email: customer [email protected]"
14.7. Juxtaposing the requirements under the aforesaid Rules and what is printed on the PDP it is seen that all the information and material particulars required to be printed have been so made available on the package, which has been seized. 14.8. The only issue is that there are some details which have been printed on a label and affixed which are called online details and the other details as regards the W.P. NO.4502 OF 2020 43 manufacturer, registered office, phone number, customer care, etc, are preprinted on the package itself.
14.9. Now, as contended in the show cause notice, the affixation of the label is stated to be not in compliance with the requirement under the Packaging Rules and it is in this background that the show cause notice is stated to be issued. 14.10. Having considered the contents of the material particulars on the PDP, which has been printed and the requirements of the law I'm of the considered opinion that there is no distinction which has been made in either Rule (2)(h), Rule 4 or Rule 6 requiring that the information is all preprinted on the PDP.
W.P. NO.4502 OF 2020 44 14.11. I also do not find any requirement of all the data or material particulars to be grouped in one place. What is required under Rule 2(h), Rule 4 and Rule 6 is that the mandatory declarations and data are made available to a customer at the time of purchasing the product.
14.12. As long as the details and material particulars are available to the said purchaser that in my considered opinion would amount to sufficient compliance with the requirements of the Packaging Rules. The details which have been preprinted are one's which are common to all the packages. Hence, the manufacturers have resorted to preprinting the said details on the package.
14.13. The details which are called as online details and printed on the label and affixed W.P. NO.4502 OF 2020 45 on the product are those which are variable in nature i.e., regarding the price, the size, manufacturing date and the model as also the colour. These are details which are specific to the product which is contained in the package and would vary with each package. For the purpose of convenience and for the purpose of probably saving the cost of creating a package, the Petitioner has chosen and/or adopted the means of a preprinted package containing all the data which are constant as also the brand name, logo, etc of the Petitioner and as and when a particular product is packed into that particular package, the details of that particular product are printed on a label and affixed on that particular package.
W.P. NO.4502 OF 2020 46 14.14. This in my considered opinion cannot be said to be in violation of the Rules inasmuch as what is required by rules is only the making available of the information to the customer. The information as stated above being available to the customer and for the customer to crosscheck the same with the product, there cannot be a violation which can be said to have occurred in the present case, either by the manufacturer or the distributor or the retailer. 14.15. Hence I answer Point No.4 by holding that the details required for and mandated under Section 2(h), Rule 4 and Rule 8 of the Legal Metrology (Packaged Commodities) Rules 2011 are required to be available on the Principal Display Panel (PDP), it is not required that all W.P. NO.4502 OF 2020 47 the details are preprinted on the package, they can also be printed on a label and affixed, as such the preprinting of a portion of the mandatory details on the package and printing and affixing a label containing a portion of the mandatory details would not be a violation of the requirement of the LM Act or Packaging Rules.
14.16. Hence I answer Point No.5 by holding that affixation of a label containing some of the variable information would not amount to an offence and/or violation of Rule 6(1)(a), Rule 6(1)(b) and Rule 6(1)(aa) of the Legal Metrology (Packaged Commodities) Rules 2011 so long as the label is present on the package at the time of sale.
W.P. NO.4502 OF 2020 48
15. Answer to Point No.6: What order? 15.1. In the above circumstances, the writ petition is allowed.
15.2. The search and seizure conducted is declared invalid. The items seized are directed to be returned to Petitioner No. 3 within 4 weeks of the receipt of this order.
15.3. The notices in Case No./Seizure No.0691550 dated 28.01.2020 issued by the Respondent for the offence punishable under Section 36 of the Legal Metrology Act is hereby quashed.
15.4. The Respondent are directed to
henceforth comply with the
requirements of the law laid down by this Court in Reliance Retail Limited W.P. NO.4502 OF 2020 49 Vs. State of Karnataka & Ors reported in ILR 2020 KAR 905 as reiterated hereinbefore conducting any search or seizure.
15.5. The Petition is allowed.
Sd/-
JUDGE Prs*