Kerala High Court
Thajudeen vs The Assistant Controller on 13 March, 2025
2025:KER:21399
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 13TH DAY OF MARCH 2025 / 22ND PHALGUNA, 1946
CRL.REV.PET NO. 1626 OF 2013
AGAINST THE JUDGMENT DATED IN Crl.A NO.476 OF 2011 OF
ADDITIONAL DISTRICT COURT-I,MAVELIKKARA ARISING OUT OF THE JUDGMENT
DATED 23.09.2011 IN ST NO.251 OF 2007 OF JUDICIAL MAGISTRATE OF
FIRST CLASS, KAYAMKULAM
REVISION PETITIONER/APPELLANT/1st ACCUSED:
THAJUDEEN, AGED 66 YEARS
S/O.IBRAHIM, GREENLANDIL VEEDU, WARD NO.5, KAYAMKULAM
MUNICIPALITY, KAYAMKULAM.
BY ADV A.SHAFEEK (KAYAMKULAM)
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 THE ASSISTANT CONTROLLER
LEGAL METROLOGY(FLYING SQUAD),
ALAPPUZHA THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY THROUGH PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
Sri. Ranjit George-PP
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
13.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.R.P.No.1626/2013
2
2025:KER:21399
JUDGMENT
This criminal revision petition is preferred impugning the judgment of the Additional Sessions Judge, Mavelikkara in Crl.Appeal No.476/2011. As per the impugned judgment, the learned Additional Sessions Judge confirmed the conviction and sentence in S.T.No.251/2007.
2. The petitioner is the 1st accused in S.T.No.251/2007 on the files of the Judicial First Class Magistrate Court, Kayamkulam. The offences alleged against the accused were under Sections 29, 31 r/w 49 and 50 of the Standards of Weights and Measures (Enforcement) Act, 1985.
3. The 1st respondent, the Assistant Controller, Legal Metrology (Flying Squad), Alappuzha, filed a complaint before the Magistrate Court, Kayamkulam alleging that accused nos.1 to 4 obstructed the process of seizure of the articles from a shop owned by the revision petitioner/accused namely, 'M/s.Dubai Duty Paid Shop', and thereby committed offences punishable under Sections 49 and 50 of Standards of Weights and Measures (Enforcement) Act, 1985 [hereinafter referred as 'the Act] Crl.R.P.No.1626/2013 3 2025:KER:21399
4. The trial court, after a full fledged trial, convicted and sentenced the revision petitioner/1st accused to undergo simple imprisonment for three months and acquitted accused nos.2 and 4.
5. Impugning the said order of the Magistrate, the revision petitioner/1st accused preferred Crl.Appeal No.476/2011. The learned Additional Sessions Judge, Mavelikkara dismissed the appeal.
6. The Adv.Renjith George, learned Public Prosecutor supported the judgment of the learned Additional Sessions Judge, Mavelikkara and submitted that, no interference is warranted in this matter.
7. Per contra, Adv.A.Shafeek Kayamkulam, learned counsel for the revision petitioner submitted that the impugned order of the learned Additional Sessions Judge is unsustainable. The learned counsel submitted that the trial court and the appellate court have failed to appreciate the questions of fact and law in this regard in the correct perspective.
8. The first submission of the learned counsel for the revision petitioner is that, the trial court and the appellate court had failed to note that, under Section 30 of the Act, the complainant had no independent right to seize any article from the shop run by the revision petitioner/1st accused. If the 'Act' does not confer the power of seizure by Crl.R.P.No.1626/2013 4 2025:KER:21399 the complainant, the search, if any, conducted by the complainant itself is illegal. If the complainant has no right to conduct a seizure then he cannot even make a complaint to the Court or any authority with regard to the obstruction which was allegedly caused in consequence of his illegal act.
9. The second submission of the learned counsel for the revision petitioner is that, both the trial court and the appellate court had failed to consider the fact that, the criminal case registered by the police under Section 353 of the Indian Penal Code, on the basis of the alleged inspection and seizure and the obstruction of duty caused to the complainant, culminated in acquittal as per the order in Crl.Appeal No.210/2009.
10. It is further submitted that, in Crl.Appeal No.210/2009, the learned Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara observed that the complainant herein, PW1, had no power to seize the articles from the shop run by the revision petitioner and he has exercised the powers without any legal authority. It is further submitted that, since the complainant conducted the inspection and seizure of the articles from the shop run by the petitioner itself is illegal, and a colourable exercise of his powers, he has no locus standi to file a complaint before the learned Magistrate. The trial court and the appellate court had failed to notice the aforementioned illegalities and infirmities while Crl.R.P.No.1626/2013 5 2025:KER:21399 convicting and sentencing the revision petitioner/accused.
11. Before further discussion, it may be useful to extract the relevant provisions of the Standards of Weights and Measures (Enforcement) Act, 1985 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 [hereinafter referred as 'the Rules'].
Sections 29, 31, 49 and 50 of the Act reads thus:
"29. Power of Inspector to enter premises:-
An Inspector may, if he has any reason to believe, whether from any information given to him by any person and taken down by him in writing or from personal knowledge, or otherwise, that an offence punishable under this Act has been, or is likely to be. committed in relation to any weight, measure or other goods which are sold, delivered or distributed by weight, measure or number, enter, at all reasonable times, into any premises--
(i) where such weight or measure is--
(a) made, manufactured, repaired, or sold, or
(b) used, or kept or believed to be kept for use, in any transaction or for industrial production or for protection;
(ii) where such goods are manufactured, packed, distributed or sold or kept or offered for sale in packaged form, and inspect or verify any weight or measure or the net contents, by weight, measure or number, or any package, and may also examine any document or other record relating thereto.
31. Power of Inspector to seize any weight or measure: - (1) An Inspector may seize and detain any weight or measure in relation to which an offence under this Act is being, or appears to have been committed, or which is intended or likely to be used in the commission of such offence, and may also seize and detain any goods sold or delivered, or cause to be sold or delivered, by such weight or measure:
Provided that where any goods seized under this sub-section are subject to speedy or natural decay, the Crl.R.P.No.1626/2013 6 2025:KER:21399 Inspector may dispose of such goods in such manner as may be prescribed.
(2) Where any weight, measure or any article is seized and detained under sub-section (1), the Inspector may also seize and detain any document or other record relating to such weight, measure or article.
(3) The provisions of section 102 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every seizure made under this section.
49. Penalty for contravention of Section 29: - Whoever obstructs the entry of an Inspector, or any person authorized by or under this Act to exercise the powers of an Inspector, into any premises for the inspection and verification of any weight or measure or any document or other record relating thereto or the net contents of any packaged commodity or for any other prescribed purpose, shall be punished with imprisonment for a term which may extend to two years, and, for the second and subsequent offence, with imprisonment for a term which may extend to five years.
50. Penalty for contravention of sections 30 and 31: -
Whoever prevents the Controller or any officer authorized by the Controller in this behalf, from searching any premises or prevents an Inspector from making any seizure of any weight, measure, packaged commodity, goods, document, record or label, shall be punished with imprisonment for a term which may extend to two years, and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine."
12. Rules 1 and 6 of the 'Rules' reads thus:
"1. Short title, extent, application and commencement:-
(1) These rules may be called The Standards of Weights and Measures (Packaged Commodities) Rules, 1977. (2) They shall extend to the whole of India. (3) They shall apply to commodities in the packaged form which are, or are intended or likely to be,-
(i) sold, distributed or delivered or offered or displayed for sale, distribution or delivery, or Crl.R.P.No.1626/2013 7 2025:KER:21399
(ii) stored for sale, or for distribution or delivery, in the course of inter-State trade and commerce. (4) They shall come into force on such date as the Central Government may, by notification, appoint, and different dates may be appointed for-
(i) different provisions of these rules, and
(ii) different commodities or classes of commodities, and any reference in any provision to the commencement of these rules shall be construed as a reference to the coming into force of that provision or to the coming into force of these rules in relation to any commodity or classes of commodities, as the case may be:
Provided that they shall come into force in the State of Sikkim on the date on which Chapter IV of Part IV of the Act comes into force in that State."
"6. Declaration to be made on every package - (1) Every package shall bear thereon or on a 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.
Explanation I. If any name and address of a company is declared 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 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 clause shall not apply and instead the requirement of the Prevention of Food Adulteration Act, 1954 (37 of 1954) and the rules made thereunder shall apply.
Crl.R.P.No.1626/2013 82025:KER:21399
(b) the common or generic names of the commodity contained in the package and in case of packages with more than one product, name and number or quantity of each product shall be specified on the package. Explanation - Generic name in relation to a commodity means the name of the genus of the commodity, for example, in the case of common salt, sodium choloride is the generic name.
(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;
(d)the month and year in which the commodity is manufactured or pre-packed [or imported] [Provided that for packages containing food articles, the provisions of the Prevention of Food Adulteration Act, 1954 (37 of 1954) and the rules made thereunder shall apply:] [Provided further that nothing in this clause shall apply in case of packages containing seeds which are labelled and certified under the provisions of the Seeds Act, 1966 (54 of 1966) and the rules made thereunder:] [Provided also that a manufacturer may indicate the month and year using a rubber stamp without overwriting:] [Provided also that for packages containing cosmetic products, the provisions of the Drugs and Cosmetics Rules, 1945 shall apply;]
(f)the [retail sale price] of the package;
[Provided that for packages containing alcoholic beverages or 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 thereunder do not provide for declaration of retail sale price, the provisions of these rules shall apply.]
(g)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;
(h)such other matters as are specified in these rules:
Crl.R.P.No.1626/2013 92025:KER:21399 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-
(vi) [any package containing bidis or incense sticks;]
(vii)[ any domestic liquefied petroleum gas cylinder of 14.2 kg. or 5 kg., bottled and marketed by a public sector undertaking;] (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 thereafter, 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 be, 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 --
(vii)[ any package containing bidis]
(viii)[any domestic liquefied petroleum gas cylinder of which the price is covered under the Administered Price Mechanism of the Government.] Explanation I.-The month and the year in which the commodity is pre-packed may be expressed either in words, or by numerals indicating the month and year, or by both.
Explanation II.-Liquid milk does not include condensed milk.[* * *] Crl.R.P.No.1626/2013 10 2025:KER:21399 [(1-A) 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.
(1-B) It shall not be permissible to affix individual stickers labels 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 should not cover the MRP declaration made by the manufacturer or the packer, as the case may be, on the label of the package.
(1-C) It shall be permissible to use stickers for making any declarations other than the declaration required to be made under these rules.] (2) 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 main 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.]"
13. As per Rule 1 of the Rules, competent officer is not legally empowered to seize all the commodities from the shop, unless the seized one is within the ambit of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. In the instant case, the articles proposed to be seized from the shop of the revision petitioner is 'Gold Leopard King New Education Computer GLK 2002'. There is nothing on record to indicate that the aforementioned item was notified or specified in the schedule.Crl.R.P.No.1626/2013 11
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14. The Additional Sessions Judge, Fast Track, Adhoc, Mavelikkara while disposing Crl.Appeal No.210/2009 has discussed the various illegalities connected with the alleged inspection and seizure. The learned counsel for the revision petitioner invited the attention of this Court to the relevant paragraphs of the said judgment.
"9. Firstly, there is nothing on record to show that PW1 observed the provisions of the Code of Criminal Procedure relating to search and seizure at the shop room of PW1. No evidence was adduced in this respect. Secondly, PW1 adduced evidence before the lower court that he found a packet labeled as Gold Leperd King New Education Computer without declaration mandated by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. According to PW1, to proceed against A, legally, she seized two packets of the said commodity and prepared mahazar and seizure report. It is the specific case of PW1 that when she asked PW1 to receive the seizure receipt, he declined and made mobile phone calls to other persons. It is her case that A2 to 4 came to the shop room and in furtherance of their common intention all of them, deterred from discharging her official duties. She maintained that A2 to 4 were office bearers to Vyapari vyavasayı Akopana Samithy of the locality. All the accused went to the extent of pushing PW1 out of the shop and closed the shop by putting the shutter down. PW2 and 3 supported the version of PW1 in full. PW3 was working as driver of the Legal Metrology department then. Although PW1 and 2 adduced evidence to show that they prepared mahazar and seizure report, those documents were not produced before court. It is clear from the evidence that PW1 and 2 made an attempt to purchase 'Gold Leperd King New Education Computer' from the shop room of A1. The allegation is that the packaged commodity did not contain requisite declaration Crl.R.P.No.1626/2013 12 2025:KER:21399 required by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. In exercise of powers conferred by Section 83 of Standards of Weights and Measures Act, 1976, the Central Government enacted The Standards of Weights and Measures (Packaged Commodities) Rules, 1977. It is clear from Rule 1 that the different provisions or the rules and different commodities or classes of commodities shall come into force on such date as the Central Government may by notification, appoint and different dates may be appointed for. Going by the rules, it is clear that Rule 1 is applicable to different commodities or classes of commodities specified in the schedule or notified. The competent officer is not legally empowered to seize all the commodities from the shop room unless the seized one is within the ambit of Standards of weights and Measures (Packaged Commodities) Rules, 1977. On going through the rules, I do not find that the 'Gold Leperd King New Education Computer' is a specified item declared by the Central Government to be sold under the Packaged Commodities Rules. It is not an item at all. At the time of hearing, no provision was made to my notice that the packaged commodities sought to be seized by PW1 is a specified item notified by the Government. In an identical case reported in Titan Watches Limited, Bangalore v Senior Inspector, Legal Metrology Weights & Measures Department Mehboobnagar and others (AIR 2003 Andhra Pradesn 175), the Hon'ble Andhra Pradesh High Court held in an identical situation as follows:-
"The application of the provisions of the Act whether as regards the area, or classes of undertakings, or the classes of goods would depend on the issuance of notification by the competent authority in this regard. The items themselves are so versatile that a notification in respect of an area perse does not bring into the fold of the Act, all classes of goods does not make the provisions of the Act and Rules applicable all over the country. Unless and until Crl.R.P.No.1626/2013 13 2025:KER:21399 specific notifications as regards a particular class of goods and area are issued, the sale or distribution of such goods cannot be brought under the purview of the Act and Rules. Thus, in the instant case, the respondent authority can be said to have been vested with the power to initiate prosecution against the petitioner manufacturer of wrist watches, if only, there existed a notification under S.1(3)
(d) of the Act which covers the watches also. Since there did not exist any notification particularly as on the date on which the inspection was made covering the watches issued under section 1(3)(d) of the Act, the proceedings initiated against the petitioner by the respondent authority are without jurisdiction and without any lawful authority".
15. On going through the provisions of the Act and the Rules, it is crystal clear that the 1 st respondent, Assistant Controller of Legal Metrology, had no authority to conduct search in the shop owned by the revision petitioner/accused and to seize the item referred above. If the complainant has no power or authority to conduct search and alleged seizure, it naturally follows that, he has no locus standi to file a complaint before the Magistrate.
In such a case, I am of the considered view that the conviction entered and sentence imposed by the trial court and confirmed by the appellate court, on the basis of the illegal inspection, search and seizure, are legally unsustainable and liable to be set aside. Therefore, the impugned judgment of the learned Additional Sessions Judge, Crl.R.P.No.1626/2013 14 2025:KER:21399 Mavelikkara is set aside.
In the result,
(i) Criminal Revision Petition is allowed.
(ii) The impugned judgment of the learned Additional Sessions Judge, Mavelikkara in Crl.Appeal No.476/2011 is set aside.
(ii) The revision petitioner/accused is set at liberty forthwith.
(iii) The bail bond, if any, executed by him shall stand cancelled.
Sd/-
K. V. JAYAKUMAR JUDGE Sbna/