Karnataka High Court
Rohitdas Shenoy vs Legal Metrology Inspector on 14 March, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRL.R.P NO 2319 OF 2013
BETWEEN
1.MR.ROHITDAS SHENOY
UNIT INCHARGE DEPOT, HINDUSTAN COCA COLA
BEVERAGE PRIVATE LIMITED
146 (P) & 151(P)
TARIHALA INDUSTRIAL
AREA SY NO. 90, TARIHALA VILLAGE,
HUBLI.
2. MR.SUSHIL KUMAR
HUMAN RESOURCES
HINDUSTAN COCA COLA BEVERAGES
PRIVATE LIMITED
146 (P) & 151 (P)
TARIHALA INDUSTRIAL AREA
SY NO. 90, TARIHALA VILLAGE, HUBLI
3. MR.DINESH RATNAM
(MANUFACTURER)
QUALITY ASSURANCE
HINDUSTAN COCA COLA BEVERAGES
PRIVATE LIMITED
BIDADI INDUSTRIAL AREA
RAMANAGARA TALUK,
BIDADI, BANGALORE
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4. MR.K N RAMESH
(MANUFACTURER)
HINDUSTAN COCA COLA BEVERAGES
PRIVATE LIMITED
BIDADI INDUSTRIAL AREA
RAMANAGARA TALUK,
BIDADI, BANGALORE
5. MR.R PRABAKARAN
ZONAL LEGAL HEAD
HINDUSTAN COCA COLA BEVERAGES
PRIVATE LIMITED
PLOT NO. 18, BIDADI INDUSTRIAL AREA,
BIDADI HOBLI,
RAMANAGARA DISTRICT,
BANGALORE
... PETITIONERS
(BY SRI. HARSH DESAI, ADV.)
AND
LEGAL METROLOGY INSPECTOR
OFFICE OF THE ASSISTANT
CONTROLLER/ INSPECTOR
LEGAL MATROLOGY, HUBLI
HUBLI SUB DIVISION-2
HUBLI
... RESPONDENT
(BY SRI.PRAVEEN K UPPAR, HCGP.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 &
401 OF CR.P.C. SEEKING TO QUASH THE ENTIRE
PROCEEDINGS INITIATED BY THE RESPONDENT IN
C.C.NO.2335/2013 ON THE FILE OF THE JMFC I-COURT,
HUBLI, FOR THE OFFENCES P/U/S 36 OF THE LEGAL
METROLOGY ACT, 2009 AND RULE 32(2) LEGAL METROLOTY
(PACKAGED COMMODITIES) RULES 2011.
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THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and learned HCGP for the respondent.
2. This petition is filed under Sections 397 and 401 of Cr.P.C seeking to quash the proceedings initiated by the respondent in C.C.No.2335/2013 on the file of the JMFC-I Court, Hubli for the offences punishable under Section 36 of the Legal Metrology Act, 2009 and Rule 32(2) Legal Metrology (Packaged Commodities) Rules 2011.
3. The factual matrix of the case is that on 18.04.2013 Inspector of Legal Metrology inspected the petitioners' premises and seized the certain wholesale packages, different packages containing 24 retails and thereafter, Inspector of Legal metrology issued notice on 4 28.09.2013 vide Annexure-B to the petition, making allegation that violation of under Section 18 of the Legal Metrology Act, 2009 and Rule 4 and 24 of the Legal Metrology (Packaged Commodities) Rules 2011 and thereafter, on 11.10.2013, the respondent herein filed the complaint in terms of Annexure-B against the petitioners under Section 200 of Cr.P.C. before the Court of JMFC-I, Hubli and further contended that petitioners have given suitable reply vide Annexure-C to the notice dated 28.09.2013 contending that there is no violation of the said provisions. It is further contended that without considering relevant facts and procedure of law, the Court below taken cognizance of the respondent's complaint and issued summons to the petitioners and hence, the petitioners have approached this Court by filing this revision petition praying this Court to quash the proceedings.
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4. The petitioners in the petition also contended that Hon'ble Supreme Court while interpreting the provision of Section 141 of the Negotiable Instrument Act held that arraigning a company as accused is imperative. The other category of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. Having relied upon the judgment of (2012) 5 Supreme Court Cases 661, Anita Hada V/s. Godfather Travels and Tours Private Limited, at paragraph Nos. 58 and 59, principles laid down in the judgment and contended that in the instance case also the respondent has not complied Section 49 of the Legal Metrology Act, 2009 (hereinafter referred to as the 'Act') The Section 49(b) of the Act is specific that the Company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punishable accordingly and further contended 6 without prejudices to the above the entire case of the respondent proceeds on the complete misunderstanding of the legal position under the Act. The notice dated 28.09.2013 and the complaint of the respondent alleges that the following particulars are missing on the wholesale packages manufactured by the Company i.e. full name of the manufacturer, the name of the commodity, the net quantity. The wholesale package is a transparent plastic package covering the soft drink bottles, as a matter of fact, at the time of the seizure, the first petitioner representative took photographs of the packages and the same were enclosed along with the reply given to the respondent. These photographs discloses the required declarations are made on the wholesale packages and there is no violation of Rule 4 or Rule 24 of the Legal Metrology Packaged Commoties Rules 2011 (hereinafter referred to as the 'Rules') and under these circumstances, the very initiation of the 7 proceedings by the respondent is illegal and liable to be quashed. The respondent ought to have enquired as to how the petitioners can be saddled with the criminal liability for the alleged petty violation, it is nothing but the abuse of process of law and the complaint must disclose the offence made out against the persons proposed to be arrayed as accused persons, along with specific averments discloses their connection in the commission of the alleged offence. The petitioners have been arraigned as accused No.1 to 5 in the complaint without any allegation, except labeling them as accused nothing is whispered with regard to the responsibilities of those persons. The Managing Director of the Company is also not made as party to the proceedings and the employees are made as a party to the proceedings and hence, there is no question of criminal proceedings against these petitioners. Hence, counsel 8 for the petitioners prayed to quash the entire proceedings.
5. Learned counsel also relied upon the judgment of the Apex Court reported in (1998) 5 SCC 749, Pepsi Foods Ltd. V/s. Special Judicial Magistrate and brought to my notice, para 29 of the judgment with regard to exercising powers under Section 482 of Cr.P.C., Article 227 of the Constitution and also the provisions of Section 245 of the Code regarding discharging of the accused.
6. The counsel also relied upon the judgment reported in (2005) 8 SCC 89 S.M.S. Pharmaceuticals Ltd., V/s. Neeta Bhalla and another, brought to my notice, para No.13 of the judgment regarding averments made in the criminal complaint, which has been discussed in the earlier judgment by the Apex Court, referring Section 141 of the Act. The counsel referring 9 the judgments of the Apex Court contends that first of all company is not made as a party to the proceedings and the complaint itself discloses that the petitioners, who have arraigned as accused in the criminal proceedings are the employees and nothing is disclosed in the complaint with regard to each of these petitioners in marketing wholesale packages and hence, there cannot be any criminal proceedings against these petitioners.
7. Per contra learned HCGP in his arguments, he contends that immediately after the inspection and seizure of the article by Inspector of Legal Metrology, notice was given to the petitioners in order to furnish the details of persons, who have been nominated for this purpose under inspection and on service of notice, they have given reply, but they have not furnished the details with regard to the nomination is concerned. It is also contended that article which were seized does not 10 discloses the details and hence, the same is violation of Sections 4 and 24 of the Act and hence, they are liable to punishment under Section 36 of the Act, which is penal provision and also under 32(2) of the Rule and Hence, the case has been registered against these petitioners, when they fail to furnish the information with regard to nomination is concerned. Hence, company is not made as party to the proceedings.
8. Having heard arguments of the petitioners' counsel and also the learned HCGP this Court has to examine whether the initiation of the criminal proceedings against these petitioners, without Company arraigned as accused can proceed for the violation of the Act.
9. For having taken note of the pleadings and also the Annexures, which are produced along with the petition, it is an undisputed fact that inspection was 11 conducted on 18.04.2013 and also its the allegation that there was clear violation of Section 18 of the Legal Metrology Act, 2009 and Rules 32(2) of the Legal Metrology (Packages Commodities) Rules 2011 and also and Rule 3(2) and hence, notice has been issued and reply was also given and thereafter, complaint is filed.
10. On perusal of the complaint which is annexed as Annexure-D, the case details do not discloses arraigning the Company as party to the proceedings. Further on perusal of the complaint, allegation is made with regard to violation of Section 18, Rules 4 and 24 of the Legal Metrology Packaged Commodities Rules 2011, in page 2 and in the very same page, it is specifically mentioned that accused Nos.3,4 and 5 are the responsible employees and hence, they have been arraigned as accused persons. On perusal of the complaint, accused Nos. 1 and 2 and their position is mentioned as accused No.1 as 12 Distributor of Hindustan Coca-Cola Beverages Private Limited and accused No.2 as Human Resources, Hindustan Coca-Cola Beverages Private Limited and main contention of the petitioners' counsel is that, inspite of notice to the petitioners, they have not furnished the details with regard to the nomination is concerned that they have given reply, in the reply they have defended that they have not violated any Rule or any Act and prayed to drop the proceedings.
11. I would like to refer provision of Section 49 of the Legal Metrology Act, 2009, which has been canvased by the petitioners' counsel with regard to non compliance of Section 49 of the Legal Metrology Act, 2009 not arraigning Company as party to the proceedings.
Section 49 of the Legal Metrology Act, 2009 reads as under:
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49. Offences by companies and power of court to publish name, place of business, etc., for companies convicted. (1) Where an offence under this Act has been committed by a company,--
(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as a person responsible); or
(ii) where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:14
On bare reading of provision, it is clear that if any offence has been committed, in the Act, the person who has been nominated, under Sub Section (ii), to be in- charge and responsible. With regard to conduct of the business of the Company and when no person has been nominated, very persons, who at the time of the offence was committed was in-charge of, and was responsible, to the Company and also the word is used as and 'the Company'. The provision a (i) is referred with regard to or and a (ii) provision referred to and. It is specified that the Company shall be deemed to be guilty of the offence, shall be liable to be criminal proceedings and punished accordingly. In the case on hand also the allegation made in the complaint is that the petitioners have violated Section 18 of the Act and also Rule 4 and Rule 24 of the Legal Metrology Package Commodities Rule 2011. Respondent has not disclosed the details of the articles which were marked the very sale is laid on 15 behalf of the Company. I have already pointed out in the complaint, it is specifically mentioned accused Nos. 3 to 5 are the employees of the Company and the accused No.1 as Distributor of Hindustan Coca-Cola Beverages Private Limited and accused No.2 as Human Resources of Hindustan Coca-Cola Beverages Private Limited and the Company has not been arraigned as party to the proceedings, when the proviso is specific that Company has also to be prosecuted, the very initiation of the proceedings against these petitioners is nothing but abuse of process without the Company. The counsel appearing for the petitioners relied upon judgment of Anita Hada V/s. Godfather Travels and Tours Private Limited and also Pepsi Foods Ltd. V/s. Special Judicial Magistrate, these two judgments are while interpreting the provision of Section 141 of the Act while not arraigning the Company as party to the proceedings.
The Apex Court comes to the conclusion that there is no 16 compliance of Section 141 of the Act. In this case also when the Section 49 is specific that Company has to be arraigned as party to the proceedings. It is nothing but the abuse of process of law, which amounts to miscarriage of justice. Inasmuch as the Company is not made as party to the proceedings, there can not be criminal proceedings only against the employees of the Company when dealing with regard to the violation is concerned, the very initiation of case against the employees amounts to miscarriage of justice and hence, the very initiation of the proceedings against these petitioners has to be quashed. The merits of the complaint is not touched due to the legal infirmity.
In view of the above discussion, I proceed to pass the following:
ORDER Petition is allowed.17
The proceeding initiated against these petitioners in C.C.No.2335/2013 on the file of the JMFC-I Court, Hubli is quashed. However, liberty is given, if it is permissible to the complainant to proceed in accordance with law.
Sd/-
JUDGE Vb/-