Karnataka High Court
Itc Limited vs The State Of Karnataka on 4 September, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO.8954/2020 (GM-RES)
BETWEEN:
ITC LIMITED
A 'COMPANY' WITHIN THE MEANING OF
THE COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT:
VIRGINIA HOUSE, 37 JAWAHARLAL NEHRU ROAD
KOLKATA, WEST BENGAL-700071
HAVING ONE OF ITS OFFICES AT:
ITC LIMITED, ITC GREEN CENTRE
18, BANASWADI MAIN ROAD
BENGALURU-560 005
REPRESENTED BY ITS AUTHORISED SIGNATORY
MR. BUDDHADEV GHOSH. ...PETITIONER
(BY SRI S.S. POOVAYYA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE DEPARTMENT OF LEGAL METROLOGY
NO.1, ALI ASKER ROAD,
BENGALURU-560 052
REPRESENTED BY INSPECTOR OF LEGAL
METROLOGY.
2. INSPECTOR OF LEGAL METROLOGY
INSPECTION SQUAD NO.2,
NO.1, ALI ASKER ROAD,
BENGALURU-560 052. ...RESPONDENTS
2
(BY SRI SRIDHAR N. HEGDE, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, 1950 PRAYING
TO QUASH THE SEIZURE NOTICE AND PANCHANAMA
DATED 02.07.2020 BEARING NO.0691674 ISSUED BY R-2
INSPECTOR LEGAL METROLOGY INSPECTION SQUAD-2,
BENGALURU UNDER SECTION 15 OF THE LEGAL
METROLOGY ACT, 2009 (ANNEXURE-A); QUASH THE
COMPOUNDING NOTICE DATED 02.07.2020 ISSUED BY R-2
INSPECTOR OF LEGAL METROLOGY INSPECTION SQUAD-2
BENGALURU, UNDER SECTION 48 OF THE LEGAL
METROLOGY ACT, 2009 ANNEXURE-B AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is a private sector company engaged in the business of fast moving consumer goods, Hotels, Paperboards and Packaging, Agri Business and information technology. Petitioner also specializes in the business of a wide range of stationery items including exercise books/note books, pen pencil etc., under its popular brand 'Classmate'.
2. Petitioner states that, on 2.07.2020, Respondent No.2 without any warrant or prior notice or 3 without any reasonable basis or reasons to believe inspected the premises of the petitioner and seized 7,600 prepackaged wholesale packages of exercise books alleging that the labels affixed on the said wholesale packages are in violation of Rule 24(a) of the Legal Metrology (Packaged Commodities) Rules, 2011 (hereinafter referred to as `Rules') and further the wholesale packages do not bear declarations as required under the Rules.
3. Petitioner further states that the wholesale packages containing classmate exercise books were seized by drawing up of panchanama in the presence of one pancha who happens to be driver of Assistant Controller of Legal Metrology Inspection Squad 2, Ali Askar Road, Bengaluru. Petitioner further states that notice dated 2.07.2020 was issued under Section 48 of the Legal Metrology Act, 2009 (for short 'Act') for compounding of the offence punishable under Section 36 of the Act. Petitioner's grievance is that search and 4 seizure conducted by Respondent No.2 is in violation of Section 15(4) of the Act. Hence, this writ petition.
4. Sri Sajjan Poovayya, learned Senior counsel appearing for the petitioner submits that when the search and seizure is to be conducted without undue delay and obtaining a warrant by the 2nd respondent, it should be preceded by recording in writing his grounds of belief and specifying in such writing for carrying out search and seizure without obtaining warrant from the jurisdictional Magistrate. In the present case, without recording in writing his grounds of belief, Respondent No.2 has searched the premises and seized the exercise books without a warrant and the same is contrary to Section 15(4) of the Act. He further submits that the search and seizure of exercise books should be made in the presence of two independent and respected witnesses of the locality as required under Sub Section (4) of Section 100 of the Code of Criminal Procedure. 5
5. Learned Senior counsel also submits that the co-ordinate Bench of this Court in W.P.No.30523/2012 while examining similar issue involved in this writ petition has held that the search and seizure conducted without recording in writing his grounds of belief in the absence of warrant is one without jurisdiction .
6. Learned Senior counsel has also relied on the clarification issued by the Government of India dated 12.01.2007 wherein, it is clarified that there is no bar on affixing a label containing all the declarations required under the Rules.
7. So far as question maintainability of writ petition of this writ petition without exhausting alternative of appeal provided under Section 50 of the Act, he has relied upon the decision of Apex Court in the case of M.P.State Agro Industries Development Corporation 6 Limited & Another Vs. Jahan Khan1 and also the decision of the co-ordinate Bench of this Court rendered in W.P.No.30523/2012 wherein it is held that in the absence of warrant, search and seizure conducted without recording in writing his grounds of belief is one without jurisdiction .
8. Learned counsel for the Respondents submits that this writ petition without exhausting the alternative remedy of appeal provided under Section 50 of the Act is not maintainable. He submits that the search and seizure of the exercise books are in conformity with the requirements of the Act. However, it is conceded that the similar issue was examined by the co-ordinate Bench of this Court in W.P.No.30523/2014 and it was held that the search and seizure conducted by the competent officer without recording in writing the grounds of his belief is one without jurisdiction and also that the question of 1 (2007) 10 SCC 88 7 maintainability of writ petition was not raised in the said writ petition .
9. I have analyzed the submission made by the learned Senior counsel for Petitioner and also the learned HCGP for the Respondents.
10. Section 15 of the Act gives power to Respondent No.2 so as to enter the premises to search and seize any weight, measure and other goods. Section 15 of the Act reads thus :
"Section 15. Power of inspection, seizure, etc.-(1) The Director, Controller or any legal metrology officer may, if he has any reason to believe, whether from any information given to him by any person and taken down in writing or from personal "knowledge or otherwise, that any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place and in respect of which an offence punishable under this Act appears to have been, or is likely to be, committed are either kept or concealed in any premises or are in the course of transportation, 8
(a) enter at any reasonable time into any such premises and search for and inspect any weight, measure or other goods in relation to which trade and commerce has taken place, or is intended to take place and any record, register or other document relating thereto;
(b) seize any weight, measure or other goods and any record, register or other document or article which he has reason to believe may furnish evidence indicating that an offence punishable under this Act has been, or is likely to be, committed in the course of, or in relation to, any trade and commerce.
(2) The Director, Controller or any legal metrology officer may also require the production of every document or other record relating to the weight or measure referred to in sub-section (1) and the person having the custody of such weight or measure shall comply with such requisition.
(3) Where any goods seized under sub-section (1) are subject to speedy or natural decay, the Director, Controller or legal metrology officer may dispose of such goods in such manner as may be prescribed.9
(4) Every search or seizer made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures."
11. A bare reading of Section 15 of the Act would indicate that, if, an authority, has reason to believe that, an offence under this Act appears to have been made, or is likely to be made, he may enter the premises and search and seize the goods, but, however subject to fulfilling of requirements of provisions contained in Code of Criminal Procedure, 1973 as stipulated in Sub-section (4) of Section 15, Sub Section (1) of Section 165 and Sub Section (4) of Section 100 of Cr.P.C which deals with the power of Police Officer to search in the absence of warrant and procedure to be followed reads thus :
"Section 165. Search by police officer.--(1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate 10 may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station.
(2) ****** (3) ****** (4) ***** (5) ****** Section 100(4). Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."11
12. A conjoint reading of Section 165 & Section 100(4) indicates that when the search has to be carried without any undue delay and obtaining a warrant, the officer after recording in writing his grounds of belief and specifying in such writing, may carry out search and seizure in the presence of two or more independent and respectable inhabitants of the locality. Recording of reasons in writing his grounds of belief is an obligatory condition so as to prevent the officer from exercising his power of search indiscriminately so as to safeguard the subject against the unjustifiable interference with his individual and private right. In the present case, the Respondent No.2 was under an obligation to record the reasons in writing his grounds of belief that an offence has been committed or likely to be committed under the provisions of the Act. It is a fact that such a requirement as stipulated in Sub-section (1) of Section 165 of Cr.P.C was not accomplished.
12
13. Further, the search and seizure was made in the presence of a sole witness who happens to be the driver of the official of the department and who is not an independent inhabitant of the locality and the same is not in dispute. Even though this may amount to procedural irregularity, the search and seizure stands vitiated for not complying with the requirements of Sub-section (4) of Section 100 of Cr.P.C.
14. Apex Court in catena of cases has held that, in an appropriate case, inspite of availability of alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review where the orders or proceedings are without jurisdiction. Although there is a self imposed restriction on this court, not to exercise its power under Article 226 where an alternative remedy is available, nonetheless in the present factual matrix when the search and seizure conducted is without jurisdiction as held in the preceding paras, I am of the view that this 13 writ petition is maintainable and the Petitioner need not be relegated to avail the alternative remedy of appeal.
15. For the aforesaid discussion, I am of the considered view, that the search and seizure made by the Respondent No.2 is one without jurisdiction. Accordingly, I pass the following:
ORDER
(i) Writ petition is allowed;
(ii) Impugned seizure notice dated 02.07.2020, and Compounding Notice dated 02.07.2020 issued by the 2nd respondent-Inspector of Legal Metrology at Annexures-A & B are hereby quashed;
(iii) Respondent No.2 is hereby directed to release the seized goods being 7600 CFCs/Packages of Classmate Exercise Books pursuant to the seizure conducted on 02.07.2020 (Annexures-
D to D2).
Sd/-
JUDGE HR