Kerala High Court
Mohammed Manzoor Abdul Salam vs Bureau Of Indian Standards on 7 March, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 7TH DAY OF MARCH 2024 / 17TH PHALGUNA, 1945
WP(C) NO. 42668 OF 2023
PETITIONER:
MOHAMMED MANZOOR ABDUL SALAM
AGED 50 YEARS
S/O.ABDUL SALAM, PROPRIETOR, M/S.AL MUQTADIR GROUPS,
T.C. 25/595-7, KOCHUVEETTIL TOWER, MANORAMA ROAD,
THAMPANOOR, THIRUVANANTHAPURAM, RESIDING AT FLAT
NO. 1D, HEERA BLUE BELLS, VELLAYAMBALAM,
THIRUVANANTHAPURAM, PIN - 695010
BY ADVS.
NISHA GEORGE
GEORGE POONTHOTTAM (SR.)
KAVYA VARMA M. M.
RESPONDENTS:
1 BUREAU OF INDIAN STANDARDS
2ND FLOOR, CWC OFFICE COMPLEX, MAVELI ROAD, GANDHI
NAGAR, KADAVANTHRA P.O., ERNAKULAM - 682020,
REPRESENTED BY THE DIRECTOR.
2 THE SENIOR DIRECTOR
BUREAU OF INDIAN STANDARDS, KERALA BRANCH (KOCHI)
2ND FLOOR, CWC OFFICE COMPLEX, MAVELI ROAD, GANDHI
NAGAR, KADAVANTHRA P.O., ERNAKULAM, PIN - 682020
BY ADVS.
MANOJ RAMASWAMY
S.SREEKUMAR (SR.)(S-571)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 42668 OF 2023 2
CR
JUDGMENT
The petitioner is stated to be the proprietor of a group of companies dealing in the manufacture and retail sale of gold ornaments and such other. He impugns Exts.P2 and P12 proceedings of the 1st respondent - Bureau of Indian Standards (BIS), whereby, his showrooms in Edappally, Ernakulam were raided and certain gold ornaments seized and placed in safe custody in the locker in his own premises, purportedly invoking the powers under Section 28 of the Bureau of Indian Standards Act, 2016 ('Act' for short). He asserts that these actions are peremptorily illegal because, they are in violation of the statutory scheme; and hence that he has been constrained to approach this Court through this writ petition.
2. Sri.George Poonthottam, learned Senior Counsel, instructed by Smt.Kavya Varma M.M. - learned counsel appearing for the petitioner, argued that the impugned actions of the respondents are in excess of jurisdiction, in colourable exercise of power and in blatant disregard to the provisions of the 'Act'. The learned Senior Counsel took me extensively through Section 27 of the 'Act', to argue that a "Certification Officer", as defined under it, shall have the power only WP(C) NO. 42668 OF 2023 3 to inspect any operation carried on in connection with any goods, articles, process, system or service in relation to which a standard mark has been used; and to then take samples of such. He pointed out that this has relevance because, Section 27(1) of the 'Act' renders it evident that the "Certification Officers" are appointed for the purpose of inspection, to verify whether any goods, articles, process, system or service in relation to which standard mark has been used, confirms to the relevant standards, or whether the standard mark has been properly used in relation to it with or without licence, and for performing such other functions as may be assigned to them. His argument was, therefore, that the Certification Officers in this case had no authority to search his client's premises, or to seize articles therefrom, especially on account of the rigour of Section 28 of the 'Act', which he pointed out, would apply only where articles are "secreted" and not held openly. The learned Senior Counsel, therefore, prayed that respondents 1 and 2 be directed to release the gold ornaments seized and stored in his client's locker, so as to enable him to transact his business; with a corollary plea that Exts.P2 and P12 be quashed, as having been issued in excess of jurisdiction vested with the Certification Officers, under Section 28 of the 'Act'.
3. Sri.S.Sreekumar, learned Senior Counsel, instructed by WP(C) NO. 42668 OF 2023 4 Sri.Manoj Ramaswamy - learned Standing Counsel for the respondents, however, in response, argued that the afore contentions of the petitioner have been made without regard to the specific provisions of Section 28 of the 'Act', which authorizes the "Certification Officers" in certain cases to search any place and to seize any articles, when it is found that the specified offences mentioned therein are committed. The learned Senior Counsel argued that since, in this case, the petitioner unequivocally admits that the sale of gold ornaments in his showrooms at Edappally, Ernakulam were being carried on without a valid permission under Section 15(1) of the 'Act', but were relying upon one such, which was issued to his showroom at Trivandrum, as evident from Ext.P1, the actions of the "Certification Officers" become ineluctably without error, since they are expected to avert any such violation and to take necessary action, as and when it is so detected.
4. Sri.S.Sreekumar vehemently argued that, in the face of the virtually conceded position of the petitioner, that he is in violation of Section 15(1) of the 'Act', his arguments against Exts.P2 and P12 are peremptorily unsustainable; and hence prayed that this writ petition be dismissed.
5. Before I move forward and evaluate the afore rival contentions WP(C) NO. 42668 OF 2023 5 of the learned Senior Counsel for the parties, I must advert that the prayers made in this writ petition are only for a direction to respondents 1 and 2 to release the gold ornaments seized and stored in the locker of the petitioner and further that Exts.P2 and P12 be quashed, being in violation of Section 28 of the 'Act'.
6. There can be little doubt, as is also without contest, that the "Certification Officers" as defined under the 'Act', obtains specified powers as per Section 27 and 28 thereof. The penalty for contravention of the provisions of the Act is contained in Section 29 of it; while, Section 32 provides for the cognizance of offences by Court, which has been mandated to be only on the basis of a complaint made in the manner enumerated, under the Authority of the 1st respondent - BIS.
7. Turning to the provisions of Section 27 of the 'Act', it provides for the appointment and powers of the "Certification Officers", which, for ease of reference and reading is extracted as under:
27. Appointment and powers of certification officers.--(1) The Bureau may appoint as many certification officers as may be necessary for the purpose of inspection whether any goods, article, process, system or service in relation to which the Standard Mark has been used conforms to the relevant standard or whether the Standard Mark has been properly used in relation to any goods, article, process, system or service with or without licence, and for performing such other functions as may be assigned to them.
(2) Subject to any rules made under this Act, a certification officer shall WP(C) NO. 42668 OF 2023 6 have power to -- (a) inspect any operation carried on in connection with any goods, article, process, system or service in relation to which the Standard Mark has been used; and
(b) take samples of any goods or article or of any material or substance used in any goods, article, process, system or service, in relation to which the Standard Mark has been used.
(3) Every certification officer shall be furnished by the Bureau with a certificate of appointment as a certification officer, and the certificate shall, on demand, be produced by the certification officer. (4) Every certified body or licence holder shall-- (a) provide reasonable facilities to certification officer to enable him to discharge the duties imposed on him;
(b) inform certification officer or the Bureau of any change in the conditions which were declared or verified by the certification officer or the Bureau at the time of grant of certificate of conformity or licence. (5) Any information obtained by a certification officer or the Bureau from any statement made or information supplied or any evidence given or from inspection made under the provisions of this Act shall be treated as confidential:
Provided that nothing shall apply to the disclosure of any information for the purpose of prosecution and protection of interest of consumers"
8. Thereafter, Section 28 of the 'Act' provides the power to search and seizure, which is reproduced below for ease of understanding:
"28. Power to search and seizure.--(1) If the certification officer has reason to believe that any goods or articles, process, system or service in relation to which the contravention of section 11 or sub-sections (6) or (8) of section 14 or section 15 or section 17 has taken place are secreted in any place, premises or vehicle, he may enter into and search such place, premises or vehicle for such goods or articles, process, system or service, as the case may be.
(2) Where, as a result of any search made under sub-section (1), any goods or article, process, system or service has been found in relation to which contravention of section 11 or sub-sections (6) or (8) of section 14 or section 15 or section 17 has taken place, the certification officer may seize such goods or article and other material and documents which, in his opinion will be useful for, or relevant to any proceeding WP(C) NO. 42668 OF 2023 7 under this Act:
Provided that where it is not practicable to seize any such goods or article or material or document, the certification officer may serve on the owner an order that he shall not remove, part with, or otherwise deal with, the goods or article or material or document except with the previous permission of the certification officer.
(3) The provision of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this section."
9. As I have recorded above, the specific contention of Sri.George Poonthottam is that Section 27 of the 'Act' does not permit any search or seizure by the "Certification Officers", while it authorizes such to be done, under Section 28 of the 'Act', only if the articles are "secreted in any place".
10. I am afraid that the afore submissions of Sri.George Poonthottam cannot appeal to me, though, with reference to his arguments on Section 27 of the 'Act', there can hardly be any contest.
11. I say as afore because, as per Section 27 of the 'Act', the 1 st respondent - 'BIS' is authorized to appoint as many "Certification Officers" as may be necessary for the purpose of inspection as to whether the goods, articles, process, system or service, in relation to which the standard mark has been used, confirms to the said standard; and whether such mark has been properly used in relation to it - with or without licence. It then provides, through Sub Clause (2) WP(C) NO. 42668 OF 2023 8 thereof, that such an Officer shall have the power to inspect any operation carried on in connection with any good, articles, process, system or service in respect to which the standard mark has been used; and to take samples of such, for the purpose of evaluation. If one is to accept the argument, that these are the only powers of the "Certification Officers" and that they do not obtain any competence to conduct and complete search or seizure, then Section 28 of the 'Act' becomes totally redundant.
12. However, this is not the way the statutory scheme is designed, as is obvious from its rigour.
13. As perspicuous from the afore extracted Section 28 of the 'Act', if the "Certification Officer", through the modus under Section 28 of the 'Act', obtains reasons to believe that any goods, articles, process, system or service in relation to which the contravention of Sections 11, 14, 15 or 17 have taken place and if such goods are "secreted in any place, premises or vehicle" he obtains the competence to enter into and search such places, premises or vehicle. It, thereafter, provides, under Sub Clause (2) thereof, that as a result of the search as made above, any goods, articles, process, system or service is found to have been in violation of Sections 11,14, 15 or 17 of the 'Act' the "Certification Officers" may seize such goods or article WP(C) NO. 42668 OF 2023 9 and other material documents which, in his opinion, will be useful for or relevant to any proceedings under this 'Act'.
14. Therefore, as rightly argued by Sri.S. Sreekumar, when the petitioner does not have a case that he was engaged in the business of gold ornaments in his Edappally show room, without a licence under Section 15 of the 'Act' having been obtained with respect to it specifically, one cannot comprehend the further argument that the "Certification Officer" could not have entered into the premises or conducted any search of it, leading to seizure of the gold ornaments.
15. This is more so because, when one reads Section 18(1) of the 'Act', in conjunction with Section 14 thereof, it becomes manifest that the statutory certification can be used by a dealer only for the purpose of sale of goods through the retail outlets or such other premises as are specifically mentioned therein. When the petitioner admits that Ext.P1 certification allowed him to deal in the gold ornaments only at his Trivandrum showroom and that such certification was obtained by him for his showroom at Edappally only a day after the search was completed, it virtually presents a scenario where the violation under Section 15 of the 'Act becomes prima facie attracted.
16. Of course, the argument of Sri.George Poonthottam that the certificate obtained by his client subsequent to the search with respect WP(C) NO. 42668 OF 2023 10 to the showroom at Edappally, can only be construed to be an 'add-on' to Ext.P1, is not an issue that this Court can consider at this stage because, this will have an impact upon the subsequent proceedings, that may or may not take place in a competent Criminal Court.
17. Suffice to say, as matters now stand, it is virtually without contest that, at the time of search and seizure of the petitioner's premises and ornaments at Edappally, Ernakulam, he had only Ext.P1 to his benefit, which related to showroom at Thiruvananthapuram.
18. That being so, when one analyzes the further argument of Sri.George Poonthottam, that the power to search and seize would become available to a "Certification Officer" only if the articles are kept "secretly" in a place, even though they are in violation of the provisions of Sections 11,14, 15 or 17 of the 'Act', it is rendered completely untenable. No doubt, Section 28 of the 'Act' specifically says that if the "Certification Officer" has reason to believe that such articles are "secreted in any place, premises or vehicle", he may enter into and search the place and seize it, as the case may be.
19. In this context, the question is whether the words "secreted in place, premises or vehicle" would require to be interpreted in a restricted manner, or purpossively.
WP(C) NO. 42668 OF 2023 11
20. Normally, it would be beyond comprehension to even consider that a person would attempt to sell articles or engage in systems or services which are in blatant violation and disregard of Sections 11,14, 15 or 17 of the 'Act'; and it is in such context, that the words "secreted" has been used, because it is unthinkable that somebody would do so openly, in spite of being aware of the violation.
21. Moreover, the word "secreted" used in Section 28 of the 'Act' has to be interpreted in the right sense. "Secret" does not necessarily mean that it has to be tucked away or concealed, it can even be hidden in plain sight; it can also encompass instances where something is obscured, even when apparent. In the present case, it could be said that the petitioner, by openly displaying the gold articles for sale, had effectively disguised them in broad daylight, creating a camouflage.
22. In such perspective, when Sri.Geroge Poonthottam, learned Senior Counsel argues that an article which is in violation of the afore provisions, cannot be seized or taken into custody solely because it is not kept "secret", but dealt with openly in a showroom, it becomes a premium to anyone to do so, without the threat of action or rigour of the statutory provisions. This is inscrutable, incomprehensible and certainly in total defiance of the intent behind the provisions. WP(C) NO. 42668 OF 2023 12
23. Before I proceed further, I must record that, this Court had earlier passed an interim order on 22.12.2023; which is reproduced under:
"Sri.George Poonthottam - learned Senior Counsel instructed by Smt.Nisha George appearing for the petitioner, vehemently submitted that the seizure of the gold ornaments of his client was done in a very lackadaisical manner by the Authorities and without even verifying whether the "Hallmark" obtaining therein are genuine or otherwise. He asserted that the Authorities have acted upon speculative and conjectural presumptions; and that this is evident from Ext.R2(d) Seizure Memo produced by them. He thus prayed that, as an interim measure, the Authorities be directed to examine the gold ornaments again, through scientific means, to verify whether the Hallmarking is genuine or otherwise.
2. Sri.Manoj Ramaswamy - learned counsel for the Bureau of Indian Standards (BIS), submitted that there are broadly three issues involved in this case, firstly, that the petitioner was not registered under Section 15(1) of the Bureau of Indian Standards Act, 2016 (hereinafter after referred to 'Act' for short) to sell "Hallmark" gold; secondly, that the gold ornaments contain "Hallmark", which are spurious and not authorised; and finally, that the petitioner was selling the articles as if it is "Hallmark" gold which is not true. He argued that, therefore, even if the gold is found to be having the purity required, as long as the Hallmarking is spurious, the petitioner can only be seen to have acted illegally.
3. It is thus obvious that the main controversy between the parties is whether the petitioner was registered under Section 15(1) of the Act at the time of raid and seizure of the gold articles; and whether the "Hallmark" engravings of the gold ornaments are genuine or otherwise.
4. This Court proposes to see to hear the writ petition on the first limb in due course, but the learned Senior Counsel - Sri.George Poonthottam is rightly in asserting that, in the meanwhile, the purity and the Hallmarking of the gold ornaments must be directed to be valuated by the competent Authority, using relevant and germane scientific methods.
5. In fact, this is not opposed by Sri.Manoj Ramaswamy; who, however, pleaded that, until such time as further orders are issued, the gold ornaments be not ordered to be released.
6. Of Course, this Court does not intend to release the gold ornaments from attachment at the moment; but I am certain that it must be WP(C) NO. 42668 OF 2023 13 evaluated properly, so that a final decision can be taken by this Court effectively.
Resulantly, as an interim measure, I direct the competent Authority of the BIS to examine the gold ornaments for its purity and Hallmarking in the presence of the petitioner; for which purpose, the latter will make available all facilitation.
A report in this regard shall be made available to this Court by the next posting date; and I make it clear that the afore directions cannot be construed to the effect that this Court has relaxed the attachment in any manner whatsoever, as of now.
I record the submissions of Sri.Manoj Ramaswamy at this juncture that the Authorities will commence process as afore, tomorrow itself."
24. Subsequently, an application for review of the afore order was filed by the respondents, which was disposed of on 10.01.2024 as under:
"Sri. S. Sreekumar - learned Senior Counsel, instructed by Sri. Manoj Ramaswamy - appearing for the review petitioner, submitted that his client has impelled this petition, seeking review of the interim order of this Court dated 22.12.2023, because the prescribed method of verifying purity of the gold ornaments is as per Annexure A4, which requires its melting. He submitted that therefore, liberty will be offered to his client to verify the purity of the gold ornaments seized, through mechanical methods, using verified machines; however, adding that, in such scenario, the result would, at best, be only prima facie.
2. I must say that, when this Court directed the review petitioner to verify the purity and Hall Marking of the gold ornaments in question, it has never intended that it can be melted and destroyed. Obviously, they will have to use methods as are available for this purpose because, depending upon such results alone will this Court be able to resolve the controversy impelled in the writ petition.
With the above clarification, this review petition is closed. "
25. This Court is also aware that, against the 2nd of the afore orders, an appeal was attempted by the 1st respondent, but which has been dismissed. However, what must be borne in mind, is that the WP(C) NO. 42668 OF 2023 14 afore orders were issued at a time when there was less clarity on the question whether the petitioner had a proper certification under Section 15 of the 'Act' qua the showrooms, from where the articles were seized; and being under the impression that what the 'BIS' was more concerned about was the purity of the gold and the hallmarking found on the seized article. However, needless to say, the afore orders obtain no relevance any further because, as has been seen above, the present stand of the 'BIS' is that the petitioner is in violation of Section 15 of the 'Act'; and consequently, that a search and seizure under Section 28 of the 'Act' becomes imperative. Of course, they have an adjunct case that the hallmarking on the articles are also spurious and that this also requires a proper enquiry and investigation.
26. As I have said above, it would not be necessary for this Court to tread on the latter of the afore, when the suspicion regarding violation of Section 15 of the 'Act' looms large, as far as the petitioner is concerned. He must certainly dispel that, before he is able to lead any further argument on the question whether the hallmark on the articles are spurious or otherwise.
27. In any event, from any angle, this Court would not obtain jurisdiction to consider any of these aspects and it is for the WP(C) NO. 42668 OF 2023 15 competent Authorities or the competent Court to dealt with it, and issue appropriate orders as the case may be.
28. As already indited above, a Court can take cognizance of an offence based on the search and seizure by the "Certification Officer", only if a complaint is made before it by or under the Authority of the Bureau, or by any Police Officer of the particular rank as mentioned therein, apart from four other kinds of Officers/entities mentioned therein. As matters now stand, the articles remain seized, but in the custody of the petitioner himself, under the control of the 1 st respondent; and it is open to them to proceed to file a complaint, so that the further action in terms of the statutory provisions can take place.
29. In fact, Sri.S.Sreekumar - learned Senior Counsel interjected to say that his client intents to file a complaint immediately and that they have not done so, solely because this matter has been pending.
30. No doubt, the afore would be the course that the 1 st respondent may have to adopt because, they cannot continue to hold the articles seized ad infinitum, without filing a complaint. Their obligation to do so is implicit from the statute itself because, otherwise, the rights of the petitioner to challenge the search and seizure, or to seek custody of the articles, would stand peremptorily WP(C) NO. 42668 OF 2023 16 defeated.
31. At this time, Sri.George Poonthottam made a mention that, though not specifically pleaded in the writ petition, by the efflux of time, even the filing of a compliant by the 'BIS' becomes untenable, especially going by the provisions of the Code of Criminal Procedure. I am afraid that this is not an issue that this Court needs to consider in this writ petition because, this may be a defence available to the petitioner, as and when any such complaint is made before the competent Court.
32. In summation, this Court cannot find the actions of the 1st respondent, in having searched the premises of the petitioner, or in having seized the articles, to be vitiated at this stage since, it will require further assessment and evaluation through the processes as envisaged under the 'Act', which can be done only by the authorized Authorities, or the competent Court.
33. Of course, it will be fully available to the petitioner to impel and pursue any contention that he may have, including that he has not violated Section 15 of the 'Act'; that the complaint is untenable; that the complaint is barred by limitation or such other, for which purpose, his liberties are fully open.
WP(C) NO. 42668 OF 2023 17
34. As far as the 1st respondent is concerned, surely they are bound to now file a complaint before the competent Court and I record the submissions of Sri.S.Sreekumar - learned Senior Counsel that they propose to do so without any further delay.
This writ petition is thus disposed of.
Sd/-
DEVAN RAMACHANDRAN JUDGE MC WP(C) NO. 42668 OF 2023 18 APPENDIX OF WP(C) 42668/2023 PETITIONER EXHIBITS Exhibit-P1 A COPY OF THE CERTIFICATE OF REGISTRATION BEARING NO.HM/C-6490374919 DATED 11TH AUGUST 2021 FOR SELLING ARTICLES WITH HALLMARK PROCURED UNDER THE BIS ACT Exhibit-P2 A TRUE COPY OF THE SEIZURE MEMO BEARING NO.
REF.KOBO/ENF/HM/SSK/2023-24 ISSUED ON
13.12.2023 BY THE BUREAU OF INDIAN STANDARDS.
Exhibit-P3 A TRUE COPY OF ANOTHER SEIZURE MEMO BEARING
NO. REF.KOBO/ENF/ HM/SSK/2023-24/SUPRADAGI
DATED 13.12.2023 ISSUED BY THE BUREAU OF
INDIAN STANDARDS.
Exhibit-P4 A COPY OF THE LIST OF PARTICIPANTS BEARING
COMMUNICATION DATED 12.12.2023 ISSUED BY THE
BUREAU OF INDIAN STANDARDS.
Exhibit-P5 TRUE COPY OF THE CERTIFICATE OF REGISTRATION
BEARING NO. HM/C-6490598807 DATED 15.12.2023
FOR SELLING ARTICLE WITH HALLMARK ISSUED BY
THE BUREAU OF INDIAN STANDARDS.
Exhibit P6 TRUE COPY OF THE E-MAIL COMMUNICATION DATED
NIL AND RECEIVED ON 23.12.2023 FROM THE 2ND
RESPONDENT.
Exhibit P7 A COPY OF THE WRIT APPEAL BEARING W.A NO. 87
OF 2024 ALONG WITH THE ANNEXURES THEREIN,
FILED BEFORE THIS HON'BLE COURT BY THE
RESPONDENTS HEREIN.
Exhibit P8 A COPY OF THE AFFIDAVIT IN W.A.NO. 87 OF 2024
ALONG WITH THE ANNEXURES, FILED BY THE
RESPONDENTS HEREIN BEFORE THIS HON'BLE COURT.
Exhibit P9 A COPY OF THE COUNTER AFFIDAVIT IN W.A.NO. 87
OF 2024 ALONG WITH THE ANNEXURE, FILED BY THE
PETITIONER HEREIN BEFORE THIS HON'BLE COURT.
Exhibit P10 A COPY OF THE REPLY AFFIDAVIT IN W.A.NO. 87
OF 2024 FILED BY THE RESPONDENTS HEREIN
BEFORE THIS HON'BLE COURT
Exhibit P11 A COPY OF THE JUDGMENT DATED 01.02.2024 IN
W.A NO. 87 OF 2024 PASSED BY THE DIVISION
BENCH OF THIS HON'BLE COURT.
Exhibit P12 TRUE COPY OF THE SEIZURE MEMO BEARING NO.
REF. KOBO/ENF/2023-24 DATED 13.12.2023 ISSUED IN RESPECT OF M/S AL LATHIF BY THE BUREAU OF INDIAN STANDARDS.
RESPONDENT ANNEXURES Exhibit R2 (a) True copy of the Certificate of Appointment as Certification Officer of Sri.Sandeep S. WP(C) NO. 42668 OF 2023 19 Kumar Exhibit R2 (b) True copy of the Certificate of Appointment as Certification Officer of Sri. Remyth Suresh M Exhibit R2 (c) True copy of the communication vide No.BIS/KOBO/Legal/2023-24/WPC42668/5 dated 01.03.2024