Gauhati High Court
Arun Singhvi vs State Of Assam on 29 November, 1991
Equivalent citations: 1992CRILJ3073
JUDGMENT S.K. Homchaudhuri, J.
1. In a summary proceedings in C.R. Case No. 280/89, the learned Judicial Magistrate 1st Class, Tezpur convicted the petitioner and sentenced him to pay fine of Rs. 1,500/-, in default, to suffer S.I. for 30 days. In addition, the learned Magistrate passed order confiscating the seized articles belonging to the petitioner. The offence alleged to have been committed by the petitioner as disclosed from the record is that the petitioner was found selling ready-made garments (pants) in packets without mentioning the size of the pants and without showing name of the manufacturer and inserting the price of the pieces of the garment by the petitioner himself. After the petitioner was produced before him, the learned Magistrate asked the petitioner whether it was a fact that he was found selling the articles in packets without the name of the manufacturer and by fixing the price by himself. The petitioner answered in the affirmative. On the basis of admission, learned Magistrate convicted the petitioner Under Section 39 of the Package Commodities Act/Rules (sic) by the order dated 4-5-89 passed in C.R. Case No. 280/89 and sentenced him to pay fine of Rs. 1500/-. Learned Magistrate also ordered that the seized goods should be confiscated.
2. Mr. Khetri, learned counsel for the petitioner submits that there is no such Act or Rules known as 'Package Commodities Act/Rules'. Apparently, the learned Magistrate committed mistake. From the materials on records it is apparent that petitioner was prosecuted and convicted under Section 63 of the Standards of Weights and Measures Act, 1976, hereinafter mentioned as 'the Act', for alleged contravention of the provisions of Section 39 of the Act. Petitioner impugned the judgment of conviction and sentence in the court of learned Addl. Sessions Judge, in Crl. Appeal No. 18(S-2)/89 questioning the jurisdiction of the learned Magistrate to initiate the proceedings. The petitioner's contention was that he did not contravene the provisions of Section 39 of the Act attracting penalty under Section 63 of the Act. The learned Addl. Sessions Judge, however, held that since the petitioner did not state either before the Magistrate or in the appeal that the articles were manufactured within the State of Assam and the same were not purchased from other States, it was apparent that articles were sold or intended to be sold in course of inter-State trade or commerce and for contravention of the provisions of Section 39 of the Act the petitioner was rightly convicted. Feeling aggrieved, the petitioner has approached this court in this revision petition.
3. I have heard Mr. T. C. Khetri, learned counsel for the petitioner and Mr. D. Goswami, learned Public Prosecutor. Mr. Khetri submits that Section 39 is applicable only when commodities in packaged form are intended to be sold or distributed in the course of inter-State trade or commerce. There is neither any material nor any allegation that the articles alleged to have been sold in packets by the petitioner were in packaged form and were sold or intended to be sold in inter-State trade or commerce and that in the absence of any allegation far less materials, the garments sold by the petitioner were in packaged form and were sold or intended to be sold in inter-State trade and/or commerce, initiation of the proceeding under Section 63 of the Act is wholly illegal, without jurisdiction and misconceived and the impugned orders passed against the petitioner are equally without jurisdiction, inoperative and void. Consequently, the impugned order of conviction and sentence is liable to be set aside and that the petitioner is entitled to refund of the fine paid by him and to get back the articles ordered to be confiscated.
4. Mr. D. Goswami, learned Public Prosecutor, on the other hand, submits that as the articles were sold in packets and there was nothing to show that articles were manufactured in Assam, learned Sessions Judge has rightly held that articles be presumed to be sold or distributed in connection with inter-State trade or commerce and, as such, no interference is called for.
5. To appreciate the rival contentions, it is necessary to have a look into the relevant provision of the Act which are quoted below --
Section 39(1) -- No person shall --
(a) make, manufacture, pack, sell or cause to be packed or sold; or
(b) distribute, deliver, or cause to be distributed or delivered; or
(c) offer, expose or possess for sale, any commodity in packaged form to which this part applies unless such package bears thereon or on a lebel securely attached thereto a definite, plain and conspicuous declaration, made in the prescribed manner, of--
(i) the identity of the commodity in the package;
(ii) the net quantity, in terms of the standard unit of weight or measure, or the commodity in the package;
(iii) where the commodity is packaged or sold by number, the accurate number of the commodity contained in the package;
(iv) the unit sale price of the commodity in the package; and
(v) the sale price of the package.
63. Penalty for contravention of Section 39 -- Whoever in the course of inter-State trade or commerce, sells, destributes, delivers or otherwise transfers, or causes to be sold, distributed, delivered or otherwise transferred any commodity in packaged form which does not conform to the provisions of this Act or any rule made thereunder, shall be punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine.
Section 39 of the Act is incorporated in Chapter IV of the Act. Subject matter of Chapter IV is confined to commodities in packaged form, intended to be sold or distributed in the course of inter-State trade or commerce. The term 'commodity in packaged form' and 'inter-State trade or commerce' are defined in Section 2(b) and 2(m) of the Act and are quoted below --
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.
2(m). 'inter-State trade or commerce', in relation to any weight or measure or other goods which are brought, sold, supplied, distributed or delivered by weight, measures or number, means the purchase, sale, supply, distribution or delivery which --
(i) occasions the movement of such weight, measures or other goods from one State to another, or
(ii) is effected by a transfer of documents of title to such weight, measure or other goods during its movement from one State to another.
6. From the subject matter of Chapter IV of the Act it is apparent that mandates of Section 39 of the Act is applicable in respect of commodities in packaged form intended to be sold or distributed in inter-State trade or commerce. As such, before initiating a proceeding under Section 63 of the Act, the prosecution must have the materials that -- (i) the commodities sold or intended to be sold are in packaged form, and (ii) the commodities in packaged form, are sold or distributed and/or are intended to be sold or distributed in the course of inter-State trade or commerce. On perusal of records, I do not find any materials that the commodities sold by the petitioner were in packaged form. In fact, prosecution did not make any allegation that the commodities sold by the petitioner in packets were in packaged form within the meaning of Section 2(b) of the Act. There is also no allegation far less materials on records to show that selling of the articles occasioned movement thereof or was effected by transfer of documents of title of the goods during its movement from this State to another State. As such, there is no material to show that the seized goods were sold or distributed and/or intended to be sold or distributed in course of inter-State trade or commerce. Allegation against the petitioner is that he was found selling the seized garments in packets. Such sale of the garments in packets does not contravene the provision of Section 39 of the Act to attract penalty under Section 63 of the Act. Articles sold or intended to be sold must be in packaged form and must be in course of inter-State trade or commerce to attract provisions of Sections 39 and 63 of the Act. The reasons and grounds on which the learned Sessions Judge held that the petitioner has violated the provision of Section 39 of the Act and has rightly been convicted, is wholly erroneous and perverse. It was for the prosecution to satisfy the court that the articles were in packaged form and were sold in the course of inter-State trade or commerce.
For the reasons stated above, I have no hesitation to hold that the proceeding initiated against the petitioner Under Section 63 of the Act is misconceived and is without jurisdiction. As such, the impugned judgment of conviction and sentence passed against the petitioner and the impugned order purporting to confiscate seized goods belonging to the petitioner are illegal and without jurisdiction. The petition is, therefore, allowed. The impugned order of conviction and sentence and seizure of goods from custody of the petitioner are set aside.
Fine realised from the petitioner shall be refunded to him. So also the goods ordered to be confiscated shall be returned back to the petitioner.