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6. We then come to the second contention and for that purpose the various definitions which are relevant are being set out. Section 2(b) reads as under:--"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." Rule 2(1) defines that:

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 (1) 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 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;

7. Considering the definitions in the Act and the Rules, the question really would be, whether sun glasses can be said to be an item which is a pre-packed commodity. The petitioner has averred that the articles come to him either in polythene bags and some in individual openable pouch....Sometimes at the time of delivery they are put in a pouch which are normally on display for the customers to identify for the purpose of purchase. The package, therefore, is only a package for protection or safety of the article. Can therefore, sun-glasses be said to be a pre-packed commodity. The value of the product here sunglasses whether inside the package or outside the package dots not alter if the package is opened nor does it undergo a perceptive modification on the package being opened. The question of explanation 1, applying also will not arise as there is no testing and as the product need not be individually packed before the customer intends to buy it. The testing if at all by an individual who intends to purchase a sunglass is for the purpose of determining whether he should purchase the article considering his requirement, at which point of time the article is never in a package.

Learned Counsel has also relied on a judgment of another Judge of the Andhra Pradesh High Court in Titan Watches Limited, Bangalore v. Senior Inspector, Legal Metrology Weights and Measures Department, Mehboobnagar and Ors. AIR 2003 A.P. 175. In that case the learned single Judge has held that in the absence of issuing notification covering watches, the Act would not apply. In our opinion we cannot agree with the said view considering what we have held while answering issue No. 1.

9. From the above discussion, considering the provisions referred to earlier, it would be clear that the Expression, pre-packaged commodity would be applicable to commodities which are packed and the commodity packaged has a pre-determined value and that value cannot be altered without the package sold being opened at the time of sale or the product undergoes a modification on being opened. In the instant case the sun glasses whether they come in a box or not in so far as the retailer is concerned at the time when they are being sold to the consumer are not in a packaged form. Even if it is held that they come in a package before they are sold to the consumer by removing them from the box, the value does not alter nor does the product undergo a perceptible modification. The explanation is also not attracted because the package is not opened for the purpose of testing as in the case of electronic bulbs. The sunglasses are tested by the buyer for his suitability. We are, therefore, of the considered opinion that sun glasses whether it be a frame or glass is not a pre-packed commodity within the definition of the expression "pre-packed" under Rule 2(1) of the Rules.