Mr. G.Ramesh Kumar vs Union Of India on 28 July, 2023

[Cites 30, Cited by 0]

Telangana High Court

Mr. G.Ramesh Kumar vs Union Of India on 28 July, 2023

Bench: K.Lakshman

                                   1




      THE HONOURABLE SRI JUSTICE K.LAKSHMAN

                WRIT PETITION No.3482 OF 2011

ORDER:

The present writ petition is filed seeking to declare the Notice bearing No. 159/PC/010-11 dated 03.02.2011 and panchnama dated 29.01.2011 issued for alleged violations of the Standards of Weights and Measures Act, 1976 (hereinafter referred to as 'the Act, 1976') and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as 'the Rules, 1977') as illegal, arbitrary and non-est in law. Consequently, the Petitioner seeks to set aside the impugned order dated 03.02.2011 and panchnama dated 29.01.2011 and also seeks return of the seized tyres.

2. Heard Mr. G.V.S.Ganesh, learned counsel for the petitioner, learned Deputy Solicitor General of India, appearing for respondent No.1 and learned Govt.Pleader for Civil supplies appearing for respondent Nos.2 and 3.

Facts of the case:-

3. The petitioner is a dealer involved in selling various types of tyres. On 29.09.2011, the business premises of the Petitioner was 2 searched by Respondent No. 3 and the following two tyres were seized as per the panchnama dated 29.01.2011:

i. MRF Zigma - CT Extra 145/80 R 12 bearing No. 44365370311 (hereinafter referred to as 'Zigma tyre');

ii. MRF ZVTS 145/80 R12 743 bearing No. 80224125110 (hereinafter referred to as 'ZVTS tyre') As per the panchnama dated 29.01.2011, the said tyres were seized for the alleged violations of Section 39 of the Act, 1976 r/w Rule 4 r/w Rule 6(1) & Rule 23(1) of the Rules, 1977.

4. Subsequent to the seizure, Respondent No. 3 issued the impugned notice dated 03.02.2011 stating that a compoundable case has been registered against the Petitioner and if he so desires, the same can be compounded by paying the requisite compounding fee within 10 days. The said impugned notice also stated that if such compounding fee is not paid within 10 days, a case will be filed before the concerned court.

5. The Petitioner has filed the present writ petition challenging the panchnama dated 29.01.2011 and the impugned notice dated 03.02.2011 mainly on the grounds that the seizure of the tyres was 3 illegal and neither the Act, 1976 nor the Rules, 1977 are applicable to commodities like tyres.

6. Contentions of the Petitioner:-

i. The seized tyres are not packaged in any form of cover even by the manufacturer. The said tyre does not fall within the definition of 'packaged commodity' under the Act, 1976 and the Rules, 1977. Therefore, the seizure and subsequent impugned notice are without jurisdiction. ii. In his reply affidavit to the counter affidavit filed by Respondent No. 3, the Petitioner also contended that as the tyres themselves were seized without any cover or wrapper, the Act, 1976 is inapplicable to both the seized tyres. iii. Relying on a letter bearing No. WM-10(2)/91 dated 01.05.1991 issued by the Ministry of Food and Civil Supplies and another letter bearing No. WM-10(2)/91 dated 16.11.1992 issued by the Ministry of Civil Supplies, Consumer Affairs and Public Distribution it was contended that tyres wrapped with golden foil do not fall within the definition of pre-packaged commodity.

iv. Respondent No. 3 has unilaterally come to a conclusion that the Act, 1976 and Rules 1977 were violated. No show cause notice was issued prior to the issuance of the impugned notice dated 03.02.2011.Therefore, there is violation of principles of natural justice.

v. The seizure dated 29.01.2011 is illegal as the requirements of Section 102 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') were not followed.

Therefore, on account of illegal seizure, every proceeding emanating from it is vitiated.

7. Contentions of the Respondents:-

i. All commodities which come in a packaged form, unless exempted under Rule 34 of the Rules, 1977 fall within the definition of pre-packaged commodity under Rule 2(l) of the Rules, 1977. Therefore, the seized tyres also fall within the definition of a packaged commodity and they warrant necessary disclosures.

ii. The Act, 1976 and the Rules, 1977 were enacted for the benefit of consumers so that they know by way of necessary declarations on the product about the nature, quality and 5 quantity of the product. By not making such declarations, the Petitioner has violated Section 39 of the Act, 1976. iii. The seized tyres including the tubes in it were wrapped with golden foils which shows that the seized tyres are packaged commodities. Further, unless the foils are removed, the consumers cannot check the content of the tyres. iv. The tyres sold by the Petitioner were seized in furtherance of an inspection under Section 29 of the Act, 1976. An inspection is distinct from a search. Therefore, the provisions of Section 102 of the CrPC are inapplicable. v. There is no violation of principles of natural justice as alleged as the impugned notice dated 03.02.2011 itself is a show cause notice informing the Petitioner about the violations committed by him and the compoundable nature of the offences. The Petitioner was always at liberty to reply to the said notice.

Findings of the Court:-

8. From the facts of the case and the contentions of the parties, the following issues fall for consideration before this Court:

A. Whether principles of natural justice of the Petitioner are violated?

B. Whether the seizure of the tyres is illegal thereby vitiating the entire proceedings under the Act, 1976?

C. Whether the seized tyres fall within the definition of packaged commodities/pre-packaged commodities under the provisions of the Act, 1976 and the Rules, 1977?

Issue A:-

9. The Petitioner contends that the notice dated 03.02.2011 was issued in breach of principles of natural justice as no notice was given to them. It was contended that he was denied an opportunity of hearing before reaching a conclusion about the breaches of the Act, 1976 and the Rules, 1977.

10. The said contention of the Petitioner cannot be accepted.

Respondent No. 3 conducted an inspection and seized the tyres which according to them violated the provisions of the Act, 1976 and the Rules, 1977. The details of the alleged violations were informed to the Petitioner vide the impugned notice dated 03.02.2011 stating that the alleged violations were compoundable and the Petitioner can compound the alleged offences, if he wished to. If the Petitioner feels that the allegations against him are baseless and not maintainable, he 7 has an option of refusing to compound the offence by not paying compounding fee. In the present case, there is no violation of principles of natural justice as the Petitioner was only informed about the alleged violations committed by him. The Petitioner still has an opportunity to challenge such allegations before a competent court of law where the case against him will be taken up. Mere intimation of alleged violations and notice of compounding does not violate principles of natural justice. Further, an authority can issue a notice alleging violations which if accepted by the alleged violator can be compounded. If the alleged violator does not seek to compound the offence, he/she can reply to the allegations and contest the case before the concerned court where prosecution has been initiated. Therefore, it cannot be said that the impugned notice is in the form of an order pronouncing the guilt of the Petitioner. It is for the concerned court to consider the allegations on merits where the Petitioner will be accorded an opportunity of hearing. This Court decided the present issue by holding that no principles of natural justice were violated by Respondent No. 3 in issuing the impugned notice dated 03.02.2011.

Issue B:-

11. The Petitioner also challenges the impugned notice dated 03.02.2011 on the ground that the provisions of Section 102 of the CrPC were not complied with while seizing the tyres.

12. It is relevant to note that Section 29 of the Act, 1976 empowers the authorized officer to inspect any premises if they have any information regarding the breach of the provisions of the Act, 1976. Further, Section 29 also provides the power to seize such products/goods which violate the provisions of the Act, 1976.

However, Section 29(3) provides that every seizure under the Act, 1976 shall be in compliance of the provisions of the CrPC. For the sake of convenience, Section 29 of the Act, 1976 is extracted below:

29. Power of inspection, etc.--(1) The Director, or any person authorised to exercise the powers or discharge the functions of the Director, 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 inter-State trade or 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 from one State to another,-- 9

(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 inter-State trade or commerce has taken place, or is intended to take place, and any record, register or other documents 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 inter-State trade or commerce.

(2) Where any goods seized under sub-section (1) are subject to speedy or natural decay, the Director or the authorised person may dispose of such goods in such manner as may be prescribed. (3) Every search or seizure 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 made under that Code.

As breach of Section 102 of the CrPC is alleged, the same is also extracted below:

102. Power of police officer to seize certain property.--(1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.

(2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer.

(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same :

Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of Sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

13. As stated above, the Petitioner contends that the seizure of tyres is illegal which vitiates the entire proceedings as the requirement of Section 102(3) of the CrPC was not complied with. According to the Petitioner, the information of the seizure was not reported to the concerned Magistrate. Therefore, any proceeding emanating from such illegal seizure is illegal.

14. This Court cannot accept the contention of the Petitioner.

Seizure under Section 29 of the Act, 1976 and also the seizure under Section 102 of the CrPC contemplates two stages. The first stage is the stage of seizure itself where an order of seizure is passed or such seizure is recorded on a panchnama and the second stage is the reporting of such seizure to the concerned Magistrate. The second step was incorporated only to ensure transparency in the seizure process and the prevent misuse of powers. Failure of reporting the details of the seizure to the concerned magistrate may vitiate the entire seizure based on which the trial may commence. However, the initiation of the entire proceedings itself do not become non-est. The party alleging illegal seizure can use the lapses committed in the seizure as a defence in the trial. However, they cannot contend that the trial itself cannot commence.

15. In this context, it is apposite to refer to Mohd. Maqbool Ahmed v. Dy. Commr. of Police1 wherein a Division Bench of this Court held that any breach of Section 102(3) of the CrPC will not invalidate the seizure itself under Section 102(1) of the CrPC. The relevant paragraph is extracted below:

1996 SCC OnLine AP 436.

18. In our considered opinion, this is the correct legal position.

So far as the present case is concerned, there is no allegation in the affidavit filed in support of the writ petition that the requirement of sub-section (3) of Section 102 Cr. P.C., was breached. For the first time in the reply affidavit, this plea was taken and the learned Government Pleader contends, rightly, that the averments in the reply affidavit cannot be the basis for the writ petition. Even assuming that there was non-compliance of the requirement of sub-section (3) of Section 102 Cr. P.C., in that the police officer has not informed the jurisdictional Magistrate about the factum of seizing of the bank accounts of the petitioners herein, such a course of action would not invalidate the order passed under sub-section (1) of Section 102 Cr. P.C., freezing the bank accounts. We make it clear that it is always open to the petitioners to move the criminal court after the charge sheet is filed for appropriate orders as to the handling of bank accounts and the criminal Court will pass suitable orders in the light of the fact situation. Therefore, an alleged breach of Section 102(3) of the CrPC in cases of seizure under Section 29 of the Act, 1976 does not render the initiation of proceedings invalid. However, the Petitioner can raise the issue of non-compliance of Section 102(3) of the CrPC during the trial. Issue B is decided accordingly.

Issue C:-

16. The main contention of the Petitioner is that the seized tyres do not fall within the definition of packaged commodity/pre-packaged commodity. Therefore, the provisions of the Act, 1976 and the Rules, 1977 are inapplicable to such tyres.

17. To answer the said issue, it is apposite to refer and discuss the relevant provisions of the Act, 1976 and the Rules, 1977 which are extracted below:

Section 2 (b) "commodity in packaged form" means commodity packaged, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale, whether wholesale or retail; Section 2 (n) "label" means any written, marked, stamped, printed, or graphic matter affixed to, or appearing upon, any commodity or package containing any commodity;

Relevant Rules of the Rules, 1977:-

Rule 2 (l) "pre-packed commodity" with its grammatical variations and cognate expressions, means a commodity or article or articles which, without the purchaser being present, is placed in a package of whatever nature, so that the quantity of the product contained therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification, and the expression "package", wherever it occurs, shall be construed as a package containing a pre-packed commodity;

Explanation [I].--Where, by reason merely of the opening of a package, no alteration is caused to the name, quantity, nature or characteristic of the commodity contained therein, such 14 commodity shall be deemed, for the purposes of these rules, to be a pre-packed commodity, for example, an electric bulb or fluorescent tube is a pre-packed commodity, even though the package containing it is required to be opened for testing the commodity.

[Explanation II.--Where a commodity consists of a number of components and these components are packed in one, two or more units for sale as a single commodity, such commodity shall be deemed, for the purpose of these rules, to be a pre-packed commodity.

A conjoint reading of the above provisions, it is clear that the words packaged commodities and pre-packaged commodities are used interchangeably.

18. Any commodity falling within the definition of pre-

packaged commodity/packaged commodity has to make necessary declarations in accordance with Section 39 of the Act, 1976 and the Rules, 1977. A commodity is said to fall within the definition of pre-

packaged commodity requiring declarations if the following conditions are satisfied:

i. The commodity shall be packed such that it has a pre-

determined value;

ii. The pre-determined value cannot be altered unless the package is opened;

iii. The package when opened will result in a perceptible modification in the commodity;

iv. If the package is opened for testing of the commodity before it is sold or purchased;

v. If the package consists of two or more components sold as a single unit;

In this context, it is relevant to discuss the decision of this Court in TVS Electronics Ltd. v. Union of India2wherein a question arose whether electronic printers fall within the definition of pre-packaged commodity. The Court therein explained the concept of pre-packaged commodity and held that electronic printers are pre-packaged commodities as they undergo perceptible change after opening. In other words, the said printers cannot be used as they are found in the packaged form. The purchaser shall install the necessary drivers through CDs to use the printer. Therefore, the printers undergo a perceptible change. The relevant paragraphs are extracted below:

16. Pre-packed commodity means 'a commodity placed in a package when the purchaser is not present, so that the commodity placed in package can be taken out for testing or examining or inspecting the commodity' (Section 2(1) of Package Rules). The commodities in packaged form and prepacked form are used interchangeably. Package Rules shall apply only to commodities in packaged form. It may be noticed that Sections 39(1), 39(6), 39(8), 39(9), 48(2), 63 and 65 of the Act use the phrase 'commodity in packaged form'. The said phrase is also used in Rules-2(n), 2(o), 2(p), 2(r), 2(u), 2(w), 6(b), 9(2), 11 and 12 of the Rules. Rules 18 to 31, 34 and 39 employ the word 'package'.

2008 SCC OnLine AP 867.

As part IV including Chapter IV of the Act apply to commodities in packaged form sold and distributed in course of inter-State trade or commerce, and Package Rules apply only to commodities in packaged form, it becomes clear that Package Rules are applicable to commodities in packaged form sold and distributed during the course of inter-State trade or commerce. Be that as it is, as per Rule 2A of Package Rules, Package Rules have no application to packages intended for retail sale, if such packages contain commodities more than 25 kg or 25 litres excluding cement and fertilizer sold in bags of 50 kg. Package Rules also have no application to packaged commodities meant for industrial consumers and institutional consumers. The Rules in Chapter II stipulate conditions or requirements subject to which pre-packed commodities can be sold. These include the display of quantity in terms of standard unit of weight or measure, the month and year of manufacturing and the like. Any contravention of the Package Rules attract penalties under Rule 39 of Package Rules. Rule 34 of Package Rules, on which considerable reliance is placed by learned Government Pleader grants immunity to package containing a commodity weighing ten grams or 10 milliliters or less, if sold by weight or measure, any package containing fast food items packed by restaurants/hotels, agricultural farm produce in packages of above 50 kg. and drug formulations covered under the Drugs (Price Control) Order, 1995. All the provisions of the Act and the Rules, however, would be relevant only when the electronic printers involved in this case can be considered as commodities in packaged form and/or pre-packed commodities.

17. Electronic printers are commodities because they are manufactured, distributed and sold. The marketing strategies adopted by first petitioner for sale of these items, notwithstanding as a commodity it is sold and bought as a useful electronic item for sale consideration. The next intriguing question is whether it is pre-packed commodity because it is a commodity in packaged form. The purpose of the Act and the provisions in Part IV 17 (Sections 31 to 46 of the Act) is to protect the economic interest of consumers as well as to regulate inter-State trade or commerce. The commodities in packaged form, which are not sold in the course of inter-State trade or commerce are also regulated by Package Rules and the intention of the provisions of the Act and the Rules is the same. A reference may be made to ITC Limited v. CCE. (2004) 7 SCC 591 : (AIR 2005 SC 1370), wherein Supreme Court held as under: (para 40)

18. The SWM Act as well as the Packaged Commodities Rules have been enacted to protect the consumers who are entitled to pay only such price as has been printed thereon. The purpose of printing the MRP on cigarette packages is to achieve a standardi- sation of prices throughout the country and to inform consumers of the appropriate price of the product. There is no scope for "underdeclaration" because the consumer can insist on the retailer abiding by the printed MRP. Provisions for penalties under the Act on the retailer ensure this. It is not open to the retailer who may be proceeded against for selling above the printed MRP to contend that it was incorrect or false, nor can the retailer defend any violation of the printed MRP by asking for an enquiry into its reasonableness. If adhering to MRP unreasonably narrows down the retailer's margins, the retailer can demand a reduction in the price from the wholesaler or desist from selling the product. This applies similarly to the wholesaler, whose feedback to the manufacturer will either force the manufacturer to raise MRP or lose distributors. Given these serious economic consequences, the manufacturers cannot print a whimsical or fanciful figure as MRP. The result is a system of incentives and enforcement that begins with the consumer. When this system is properly enforced, levying tax on MRP according to the notification clearly does not lead to absurd consequences.

19. If an electronic printer can be sold providing necessary insulation in a cardboard box (so as to protect it from damage) can it be covered under the definition of 'commodity in packaged form' attracting Package Rules because it becomes prepacked 18 commodity. The High Courts of Andhra Pradesh, Madras and Bombay considered such a question in relation to vacuum cleaners, wristwatches and electrical components/TV sets and VCRs, radios;, tape recorders and sunglasses. 'Whether a commodity is incapable of sale in any manner other than in a packaged form' was the test applied by these High Courts while deciding the cases. Applying the test, Madras High Court in Philips India Limited v. Union of India, (2002) 1 Mad LW (Cri) 211 held that television sets of Philips India, which are packed for the purpose of protection during storage, handling and safe transportation, for the convenience of the customers, are not pre-packed commodities, and therefore, the Package Rules do not apply to the same. In Eureka Forbes Limited, (AIR 2003 AP 275) (supra), I considered the question as to which are the products/commodities covered/governed by the Act and the Rules. While observing that when commodity is offered for sale only in packaged form, the manufacturer or retailer has to comply with the Act and the Rules, it was held that when the commodities or goods are offered in a package with a view to safeguard from damage, the Act has no application. It was also held therein that 'though vacuum cleaner is provided in protective cover during transportation and handling, it cannot be treated as pre-packed commodity and that it is not a package required to be sold in a packaged form'. In Titan Watches Limited, (AIR 2003 AP 175) (supra), this Court held that in the absence of notification under Section 1(3)(d) of the Act covering watches, the Act would not apply. In Titan Industries, (AIR 2006 Bom 336) (supra), a Division Bench of Bombay High Court applied the same test, when they observed, "the test to see whether a commodity is prepacked commodity would be firstly whether by the very nature of commodity, it requires to be packed before it can be sold (and) secondly in the event a package is opened, does it undergo any perceptible change or reduction in value". Applying this test, Bombay High Court in Subash ArjandasKataria, (AIR 2006 Bom 293) (supra) held 19 that sunglasses are not pre-packed commodities. Again the same test was applied.

20. The Inkjet/DOT Matrix/Laser electronic printers manufactured and distributed, presumably displayed in electronic shops on shelves without package for the purpose of demonstration. When the same is sold, it is delivered in a pre-packed form along with necessary compact discs (CDs) which contain software for printer drivers. Unless and until printer drivers are installed in an electronic printer, same cannot be used. That is to say when once an electronic printer is removed, it would undergo a change before it becomes useful. In that view of the matter, it is certainly a prepacked commodity because it is not necessary always that the same piece, which is demonstrated to the customer either in the shop or at customer's residence is delivered to buyer. Here, the definition of pre-packed commodity in Rule 2(1) of Package Rules may be noticed.

2(1) "Pre-packed commodity" with its grammatical variations and cognate expressions, means a commodity or article or articles which, without the purchaser being present, is placed in a package of whatever nature, so that the quantity of the product contained therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification, and the expression "package", wherever it occurs, shall be construed as a package containing a pre-packed commodity; Explanation I-Where, by reason merely of the opening of a package, no alteration is caused to the name, quantity, nature or characteristic of the commodity contained therein, such commodity shall be deemed, for the purposes of these rules, to be a prepacked commodity, for example, an electric bulb or fluorescent tube is a pre-packed commodity, even though the package containing it is required to be opened for testing the commodity.

Explanation II-Where a commodity consists of a number of components and these components are packed in one, two or more units for sale as a single commodity, such commodity shall be deemed, for the purpose of these rules, to be a pre-packed commodity.

21. Thus an electronic printer which is packed (may be for the purpose of insulation and protection from damage) in the absence of customer, after it is removed it undergoes perceptible modification, and therefore, it falls within the category of prepacked commodity. Secondly, as admitted in the affidavit filed by second petitioner, first petitioner imports electronic printers, electronic parts and markets the printers and printer parts after assembling them in the facility of Tamil Nadu It is certainly marketed in different parts of the country in course of inter-State trade or commerce and therefore, all provisions of the Act and Package Rules would apply, Merely because only one unit is packed in one package, the same does not take electronic printers out of the purview of the Act and the Rules. As per Section 13(2) of General Clauses Act, 1897, in law when statute uses plural, it also means singular and vice versa.

19. In the present case, the seized tyres fall within the definition of 'pre-packaged commodity' as they cannot be used directly in the form they are packaged. On opening of the package, the tyres consisting of tubes undergo a perceptible modification as they have to be inflated with air to be used. Therefore, the seized tyres with tubes fall within the definition of pre-packaged commodity.

20. Another reason why the seized tyres fall within the definition of seized commodity can be seen in Explanation II to Rule 21 2(l) of the Rules, 1977 which provides that if two or more components are packed together and are sold as a single unit, then such single unit will be treated as a pre-packaged commodity. In the present case, the tyres were being sold along with a tube. Tyres and tubes are two separate components which were being sold together. Therefore, the seized tyres fall within the definition of pre-packaged commodities and the provisions of the Act, 1976 r/w the Rules, 1977 are applicable.

21. The Petitioner contended that the pleadings of the Respondent authorities relating to tyres being a composite product cannot be accepted relying on the following paragraph in Mohinder Singh Gill v. Chief Election Commr.3

8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in GordhandasBhanji [Commr. of Police, Bombay v. GordhandasBhanji, 1951 SCC 1088 : AIR 1952 SC 16] :

(1978) 1 SCC 405.

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older.

22. According to the Petitioner, the tyres were sold with tubes are beyond the panchnama. The said contention of the Petitioner cannot be accepted as the copy of the impugned panchnama filed by the Petitioner clearly shows that the tyres were being sold with tubes.

23. Learned counsel for the petitioner relied on the principle laid down by the Apex Court in Surinder Vs. State of Haryana4 to contend that non ceiling of seized articles casts serious doubt on prosecution. In the said case, trial Court convicted the appellant therein for the offences under Section 25 of the Indian Arms Act read with Section 5 of TADA Act. It was an appeal. Whereas, in the present case, the challenge is to the notice dated 03.02.2011 and panchanama dated 29.01.2011. Therefore, the said facts are different 4 (1994) 4 SCC 365 23 to the facts of the present case. Petitioner can take the said defence during trial.

24. Learned counsel for the petitioner has also relied on the principle laid down by the Apex Court in Asha Vs. Pt. B.D.Sharma University of Health Sciences5 to contend that an averment made by a party is expected to be specifically denied by the replying party. If there is no denial, then, such averment is deemed to have been admitted by the respondent. In the light of the aforesaid facts, the said judgment is not useful to the petitioner.

25. He has also relied on the principle laid down by Manipur High Court, in Namichand Jain Vs. The Superintendent of Central Excise and Land Customs, Silchar,6 and Shashibushan Maity Vs. The State7 of Calcutta High Court, to contend that every property seized must be included in the list. As discussed supra, the present writ petition is filed challenging notice, dated 03.02.2011 and panchanama dated 29.01.2011 and therefore, the said aspect can be considered during trial and petitioner is at liberty to take the said plea during trial.

(2012) 7 SCC 389 6 AIR (1963) Manipur 35 7 AIR (1957) Cal. 148 24

26. Learned consul for the petitioner placed reliance on the principle laid down by the Apex Court in Babu Varghese Vs.Bar Council of Kerala8 and Meera Sahni Vs. Lt.Governor of Delhi9, to contend that if a particular procedure is prescribed by a statute and the same has to be followed. As discussed supra, the petitioner can take the said plea during trial.

27. Petitioner referring to proceedings dated 01.05.1991 and dated 16.11.1992 of Government of India, Ministry of Food and Civil Supplies (Department of Civil Supplies) would contend that the seized tyres are not pre-packed commodity within the meaning of Rule 2(l) of the Rules. However, in the light of the aforesaid discussion, the said contention of the petitioner cannot be accepted.

28. In light of the aforesaid discussion, the present writ petition is liable to be dismissed and is accordingly dismissed. The Petitioner is at liberty to take all the available pleas before the concerned Court before which a case is filed.

(1999) 3 SCC 422 9 (2008) 9 SCC 177 25 As a sequel, the miscellaneous applications, if any, pending in the revision shall stand closed.

_________________________ JUSTICE K. LAKSHMAN 28th July, 2023 vvr

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