Bombay High Court
Mr. Rajiv Kashinarayan Tandon Director vs The State Of Maharashtra Shri. B. B. ... on 21 February, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
1 APL48.79.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.48/2018
Mr. Rajiv Kashinarayan Tandon
Director, ITC Ltd. Virginia House,
37, Jawaharlal Nehru Road,
Kolkata - 700 071 .....APPLICANT
...V E R S U S...
The State of Maharashtra,
At the instance of Shri B. B. Gaikwad,
Inspector of Legal Metrology, having
his office at Lata Kunj Building, Kata Road,
Akola Naka, Washim - 444 505 ...NON APPLICANT
AND
CRIMINAL APPLICATION (APL) NO.79/2018
1. Mr. Biswa Behari Chatterjee,
Company Secretary, ITC, Ltd.
Virginia House, 37, Jawaharlal Nehru Road,
Kolkata - 700 071.
2. Mr. Nakul Anand, Director,
ITC Ltd. Virginia House, 37, Jawaharlal
Nehru Road, Kolkata - 700 071
3. Mr. Sanjiv Puri,
Director, ITC Ltd. Virginia House,
37, Jawaharlal Nehru Road,
Kolkata - 700 071
4. Mr. Yogesh Chander Deveshwar,
Chairman, ITC Ltd. Virginia House,
37, Jawaharlal Nehru Road,
Kolkata - 700 071
5. Mr. Sahibzada Syed Habib-ur-Rehman,
Director, ITC Ltd. Virginia House,
37, Jawaharlal Nehru Road,
Kolkata - 700 071 .....APPLICANTS
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2 APL48.79.18.odt
...V E R S U S...
The State of Maharashtra,
At the instance of Shri B. B. Gaikwad,
Inspector of Legal Metrology, having
his office at Lata Kunj Building, Kata Road,
Akola Naka, Washim - 444 505 ...NON APPLICANT
-------------------------------------------------------------------------------------------
Mr. Sunil Manohar, Senior Advocate with Mr. A. A. Naik, Advocate
for the applicants.
Mr. N. S. Rao, A.P.P. for non applicant-State.
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- 21.02.2018
J U D G M E N T
1. These two applications under Section 482 of the Code of Criminal Procedure set up a challenge to Summary Criminal Case No.1127/2017 pending on the file of learned 3rd Judicial Magistrate First Class, Washim. Therefore, these two applications can conveniently be decided and disposed of by this common judgment.
2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties.
Heard Mr. Sunil Manohar, Senior Advocate with Mr. A. A. Naik, Advocate for the applicants and Mr. N. S. Rao, A.P.P. for non applicant-State. The applications are opposed not only by ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 3 APL48.79.18.odt making oral submissions by the learned A.P.P. but also by filing replies. I have perused the replies also.
3. Mr. B. B. Gaikwad, Inspector of Legal Metrology, Washim Division, is appointed as such under Section 13 of the Legal Metrology Act, 2009 (hereinafter referred to as the "Act"). He made a surprise visit to a mall of ITC Ltd. Business division, Zakalwadi, Tq. Dist. Washim on 20.06.2017. At the time of his surprise visit, the Manager Devenkumar Thora was present. Mr.Gaikwad, the complainant seized four packages of Eco-light Battery Indicator and five packages of Microwaveable Deep Freezable Washer Safe, by preparing seizure report bearing No.21786 and 21787. The Inspector noticed that the goods seized were not having the date of packaging insofar as Eco-light Battery Indicator is concerned which is manufactured by P.G. Electroplast Limited, P4/2-416, Site B UPSIDE Surjapur, Gautam Buddha Nagar, Greater Noida (UP) 201306. Insofar as five packages of Microwaveable Deep Freezer Dish Washer Safe is concerned, he found no declaration of "Inclusive of all tax". According to the complainant, there is a breach of the provisions of the Act as well as the Legal Metrology (Packaged Commodities) Rules, 2011. ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 :::
4 APL48.79.18.odt Therefore, he found the applicants amongst others guilty of an offence punishable under Section 18 (1) and 36 (1) of the Act.
4. The applicants in Criminal Application No.79/2018 are shown as accused nos. 6, 2, 9, 5 and 8 respectively whereas the applicant in Criminal Application No.48/2018 is shown as accused no. 4 in the complaint.
5. The applicants approached before this Court with following prayers:
"(A) Quash and set aside Criminal Complaint being Summary Criminal Case No. 1127/2017 filed by the respondent dated 25.10.2017 and pending before the learned 3rd Judicial Magistrate, First Class, Washim. (B) Quash and set aside the impugned order of issuance of non bailable warrants dated 10.01.2018 passed by the learned 3rd Judicial Magistrate, First Class, Washim in Summary Criminal Case No.1127/2017. (C) During the pendency and final disposal of this petition, stay all further proceedings in Summary Criminal Case No. 1127/2017 pending before the learnd 3rd Judicial Magistrate Fist Class, Washim. (D) During the pendency and final disposal of this petition, stay the effect, operation and execution of the order issuing non-bailable warrants dated 10.01.2018 ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 5 APL48.79.18.odt passed by the 3rd Judicial Magistrate, First Class, Washim in Summary Criminal Case No.1127/2017. (E) Ad inteirm relief in terms of prayer clauses (C) and (D); and (F) Grant any other relief and issue such other suitable directions as this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
This Court had on 18.01.2018 and 31.01.2018 granted interim protection to the applicants.
6. It is the submission of the learned Senior Counsel that the complaint is as vague as it could be. He submits that the complaint is conspicuously silent in respect of the role of each of the applicants. He also submits that there are no averments in the complaint that either the applicants are incharge of the mall where the goods were displayed and were seized or even it is not the case of the complainant that the applicants were incharge of the day-to- day affairs of the ITC Ltd. He invited my attention to page no.32 of the compilation of which reads as under:
"1. The accused is the Owner/Partner/Director/ Manager of the Section/Staff/Factory at ......."
He therefore submitted that the complaint is nothing but an outcome of non application of mind and the complainant ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 6 APL48.79.18.odt himself is not sure as to whether the applicants are partners or directors of the company.
7. Further, even as per the complaint, the ITC Ltd. is not manufacturing all those products since in the complaint itself it is stated that the manufacturer is P.G. Electroplast Limited, P4/2- 416, Site B UPSIDE Surjapur, Gautam Buddha Nagar, Greater Noida (UP) 201306 and Biopak India Corporation Ltd.,105, Kanakia Atrium-2, Chakhala Andheri Kurla Road, Andheri (W) Mumbai.
In the complaint, it is stated that these companies have compounded the offence departmentally. Thus, it is clear that the applicants are not Directors of Company which has manufactured the goods in question.
8. Rule 18 of Legal Metrology (Packaged Commodities) Rules, 2011 reads as under:
"18. Provisions relating to wholesale dealer and retail dealers.-
(1) No wholesale dealer or retail dealer or importer shall sell, distribute, deliver, display or store for sale any commodity in the packaged form unless the package ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 7 APL48.79.18.odt complies with in all respects, the provisions of the Act and these rules.
(2) No retail dealer or other person including manufacturer, packer, importer and wholesale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof. (3) Where, after any commodity has been pre-packed for sale, any tax payable in relation to such commodity is revised, the retail dealer or any other person shall not make any retail sale of such commodity at a price exceeding the revised retail sale price, communicated to him by the manufacturer, or where the manufacturer is not the packer, the packer, and it shall be, the duty of the manufacturer or packer as the case may be, to indicate by not less than two advertisements in one or more newspapers and also by circulation of notices to the dealers and to the Director in the Central Government and Controllers of Legal Metrology in the States and Union Territories, the revised prices of such packages but the difference between the price marked on the package and the revised price shall not, in any case, be higher than the extent of increase in the tax or in the case of imposition of fresh tax higher than the fresh tax so imposed:
Provided that publication in any newspaper, of such ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 8 APL48.79.18.odt revised price shall not be necessary where such revision is due to any increase in, or imposition or, any tax payable under any law made by the State Legislation:
Provided further that the retail dealer or other person, shall not charge such revised prices in relation to any packages except those packages which bear marking indicating that they were pre-packed in the month in which such tax has been revised or fresh tax has been imposed or in the month immediately following the month aforesaid;
Provided also that where the revised prices are lower than the price marked on the package, the retail dealer or other person shall not charge any price in excess of the revised price, irrespective of the month in which the commodity was pre-packed.
(4) Nothing in sub-rule (3) shall apply to a package which is not required, under these rules to indicate the month and the year in which it was pre-packed.
(5) No wholesale dealer or retail dealer or other person shall obliterate, smudge or alter the retail sale price, indicated by the manufacturer or the packer or the importer, as the case may be, on the package or on the label affixed thereto.::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 :::
9 APL48.79.18.odt (6) The manufacturer or packer or the importer shall not alter the price on the wrapper once printed and used for packing.
(7) All retailers who are covered under the Value Added Tax VAT or Turn Over Tax (TOT) and dealing in packaged commodities whose net content declaration is by weight or volume or a combination thereof shall maintain a electronic weighing machine of at least accuracy class III, with smallest division of at least 1 g, with facility to issue a printed receipt indicating among other things, the gross quantity, price and the like at a prominent place in their retail premises, free of cost, for the benefit of consumers and the consumers may check the weight of their packaged commodities purchased from the shop on such machine.
(8)(1) All the marketing companies, manufacturers, packers, importers or distributors of Liquefied Petroleum Gas cylinder shall maintain a check wiegher or non- atomatic weighing instrument, digital or analogue, of Accuracy class-III (Max. 50 Kg, e=10g) to check the weight of the Liquefied Petroleum Gas cylinder. (2) The marketing companies, manufacturers, packers, importers or distributors referred to in sub-rule (1), shall provide to the delivery man to measure or weigh the correct quantity of the liquefied Petroleum Gas cylinder."
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9. According to the reply, since the ITC Ltd. has not nominated any person as contemplated in Section 49 (1) (a) (ii) of the Act, all the applicants, who are directors are responsible and therefore they have joined as accused persons. It is to be noted here that the ITC Ltd. is not joined as an accused in the present complaint. Section 49 (1) (a) (ii) of the Act comes into picture only when the offences are committed by the Company. In the present case, it is not the case of the complainant that the ITC Ltd. has committed any offence as it could be seen from the complaint itself that the ITC Ltd. is not joined as an accused person.
10. Further, the complaint is totally silent in respect of role of the present applicants. In that behalf, the law is well crystallized by the Hon'ble Apex Court as it could be seen from the decision of the Hon'ble Apex Court in Pepsico India Holdings Private Limited .Vs. Food Inspector and another; reported in (2011) 1 SCC 176, wherein in paragraph 50 of the said judgment, the Hon'ble Apex Court held thus:
"50. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra), which was reiterated subsequently in several judgments, ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 :::
11 APL48.79.18.odt some of which have been indicated hereinabove, and relying instead on the decision of Rangachari's case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company."
In addition to the aforesaid observations, in the present case, the Company itself is not before the Court. Therefore, in my view, the complaint cannot proceed further against the present applicants since there are no averments in the complaint that they being incharge of Company are liable for prosecution in their individual capacity.
11. At this stage, the learned Senior Counsel invited my attention to paragraphs 24 and 25 of a judgment in Arvind ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 ::: 12 APL48.79.18.odt Navinchandra Mafatlal & anr. .Vs. Palakavayalli Joseph Thomas (Dr.) & Ors.; reported in 2010 (2) Bom. C. R. (Cri) 606, and submitted that complaint should be dismissed in its entirety and not only against the present applicants.
This Court in paragraph 24 of the said judgment, while dealing with such a situation, has answered the situation on placing reliance on decision of Hon'ble Apex Court in Ashok Chaturvedi .Vs. Shitul H. Chanchani; reported in 1998 (7) SCC
698.
12. In the present case, since the complaint is totally silent in respect of the role of not only the present applicants but other accused persons also, in order to avoid multiplicity of litigation, I am in full agreement with the view expressed by this Court in Arvind Navinchandra Mafatlal's case, cited supra.
13. In the result, the entire complaint is required to be set aside. Hence, following order is passed.
ORDER
(i) Criminal Application Nos.48/2018 and 79/2018 are allowed.
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13 APL48.79.18.odt
(ii) Summary Criminal Case No.1127/2017 pending on the file of 3rd Judicial Magistrate First Class, Washim is hereby quashed and set aside in its entirety. Consequently, all orders passed in the said complaint are also quashed and set aside.
Rule is made absolute in the above terms.
JUDGE kahale ::: Uploaded on - 22/02/2018 ::: Downloaded on - 24/02/2018 01:52:30 :::