Calcutta High Court (Appellete Side)
2561/1996 on 2 August, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
C. R. R. No. 2561 of 1996
In Re: M/s. Black Diamond Beverages
Ltd. & Others
.. Petitioners.
Mr. Milon Mukherjee,
Mr. Biswajit Manna
.. For the Petitioners.
Seen the record. Heard learned lawyer of the petitioners. None
appears on behalf of the opposite parties.
This was a prayer for quashing of proceeding being Case No. C-1404
of 1996 under sections 39 of the Standards of Weights and Measures Act, 1976
and Rule 9(1)(a), 9(1)(d), 13(6) and 23(1) of the Standards of Weights and
Measures (Packaged Commodities) Rules, 1977.
The petitioner no. 1 is a Public Limited Company, the petitioner no. 2
is the Managing Director of the company while the petitioner no. 3 is the Director
of the aforesaid Company and the petitioner no. 4 is the General Manager of the
aforesaid Company.
The opposite party no. 1 on 24th July, 1996 filed a petition of complaint before the court of the
learned Chief Judicial Magistrate, Alipore being Complaint Case No. C-1404 of 1996 against the petitioners and
another inter alias alleging that on 28th February, 1996 at about 2.00 P. M., the opposite party no. 1 along with others
had been to the factory of M/s Black Diamond Beverages Limited at P-41, Taratala Road when they found the
petitioner no. 4 present in the factory and after disclosing their identity to him, the opposite party no. 1 allegedly asked
the petitioner no. 4 to produce some packed articles like Coca Cola, can of Fanta kept in the factory premises for sale
and when the same was produced, the opposite party no. 1 allegedly found on inspection that some statutory
declarations as required to be made in the aforesaid packages, were faulty such as, one bottle of Coca Cola, maximum
retail price was not in bold type and legible and, as such, violation of section 39 of the Standards of Weights and
Measures Act, 1976 was made and also violation of Rules 9(1)(a), 9(1)(d) and 23(1) of the Standards of Weights and
Measures (Packaged Commodities) Rules, 1977 was made.
The relevant sections are quoted below :
Section 39 of the Standards of Weights and Measures Act, 1976
-
2 Quantities and origin of commodities in packaged form to be declared (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 label 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 or weight or measure, of 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.
Standards of Weight and Measures (Packaged Commodities) Rules, 1977 -
Rule 9 - Manner in which declaration shall be made (1) Every declaration which is required to be made on a package under these rules shall be -
(a) Legible, prominent, definite, plain and unambiguous.
(d) Numerals of the retain sale price and net quantity declared and shall be printed, painted or inscribed on the package in a colour that contrasts conspicuously with the background of the label.
Rule 13 - Statement of units of weight, measure or number (6) No number called the dozen (12), score (20), gross (144), great gross (1728) or the like shall be specified or indicated on any package Rule 23 - Provisions relating to wholesale dealer and retail dealer (1) No wholesale dealer or retail dealer shall, sell, distribute, deliver, display or store for sale any commodity in the packaged form unless the package complies within all respects, the provisions of the Act and these rules.
It was alleged that those articles were seized and kept in the custody of the opposite party no. 1. It was also alleged that an opportunity was afforded to the petitioners to get the offence compounded as per section 73 of the Act but the petitioners refused to compound the same and the Controller of Legal Metrology, West Bengal in his letter no. 35 dated 7th June, 1996 directed to launch the prosecution for violation of the aforesaid Act.
The petitioner no. 1 an authorized bottler of the Coca Cola Company and packages and distributes aerated water in bottles and cans popularly known 3 as Coca Cola Soft Drinks. By a notification dated 13th July, 1995 the Central Government in exercise of the powers afforded under section 83 of the Standards of Weights and Measures Act, 1976 amended Standards of Weights and Measures (Packaged Commodities) Rules, 1977, namely, Standards of Weights and Measures Packaged Commodities (Fourth) Amendment Rules, 1995. The said notification it was further amended and added that "For soft drinks ready to serve fruit beverages or the like, the bottle which is returnable to the consumer for being retailed, the retail sale price may be indicated either on the crown cap or on the bottle or on both. If the retail sale price is indicated on the crown cap, it is sufficient to indicate the retail sale prince in the form "MRP Rs."
Pursuant to the above notification, Coca Cola India by a letter dated 18th September, 1995 requested approval of designs containing declaration of MRP (maximum retail price) and other additional information printed on the crown cap or a Coca Cola bottle from the Ministry of Food Processing Industry, Government of India.
The Ministry by its letter dated 21st September, 1995 informed Coca Cola India that no separate approval is required. The notification was duly published In the Gazette of India.
Coca Cola India stated that from the very inception after bottling the aerated water in bottles and/or cans used to print the price of the same on the crown caps of their bottled product as well also the volume of liquid contained in the bottle or can with the help of an imported machine on either the body of the bottle product and/or the can product.
Suddenly, on 28th February, 1996 around 4.00 P. M. the Inspector of Legal Metrology, the opposite party no. 1 along with other visited the factory of the petitioners and conducted a further raid at the said factory and seized 31 bottles of aerated water of Coca Cola under the Seizure Memo No. A/02252. According to the Second Schedule of the said Rules the maximum permissible error in excess or in deficiency in the net quantity by weight or volume of any commodity is between 200 to 500 ml. would be either 9 ml. or 3 per cent of the 4 declared quantity. The variation or error in the seized bottle as declared was negligible.
The raid and seizure was done on 28th February, 1996 while the instant case was started on 24th July, 1996, i.e., almost after a lapse of 5 months of the alleged incident. The case was started under Rule 9(1)(d) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 which was never in existence.
Being aggrieved by and dissatisfied with the proceedings, the present case was filed.
Learned lawyer of the petitioners submits that Rule 6 has been omitted. Therefore, there is nothing left in this case and cognizance taken is absolutely bad and continuance of the case will be a miscarriage of justice.
Having heard the learned lawyer and considering the relevant rules and without having any counter say from the opposite parties, I find that the present revision has merit. Accordingly, the present revisional application stands allowed.
The Complaint Case being C-1404 of 1996 being before the court of the learned Chief Judicial Magistrate, Alipore stands quashed.
(Toufique Uddin, J.)