IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.5159/2013 c/w CRIMINAL PETITION NOs.2408/2013, 7220/2012, 1948/2013, 4747/2014, 4004/2012, 1062/2016 & 1969/2018 IN CRL.P. NO.5159/2013:
BETWEEN:
BAUSCH & LOMB EYECARE (I) PRIVATE LIMITED HAVIANG ITS HEAD OFFICE AT 3RD FLOOR, TOWER-B, TIKA FIRST INDIA PLACE M.G. ROAD, GURGAON HARYANA – 122 002 REPRESENTED BY ITS AUTHORISED SIGNATORY MR. VICKIL MARWAHA.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
STATE BY THE INSPECTOR OF LEGAL METROLOGY, WILSON GARDEN SUB DIVISION CORPORATION BUILDING, MINERVA CIRCLE BENGALURU.
... PETITIONER ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT, BEING C.C.NO.811/12 FILED BEFORE THE MMTC-I, MAYO HALL, M.G. ROAD, BANGALORE AND THE SUMMONING ORDER DATED:JULY 21, 2012 AND SUBSEQUENT ORDERS INCLUDING ORDER DATED:04.09.12 ISSUING FRESH SUMMONS TO THE PETR.
IN CRL.P. NO.2408/2013: BETWEEN:
M/S VST INDUSTRIES LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, HAVING ITS REGISTERED OFFICE AT 1-7-1063/1065, AZAMABAD HYDERABAD – 500 020 AND REPRESENTED BY ITS AUTHORISED SIGNATORY MR. SANJAY KHANNA.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
STATE BY THE INSPECTOR OF LEGAL METROLOGY, WILSON GARDEN SUB DIVISION, CORPORATION BUILDING, MINERVA CIRCLE BENGALURU.
... PETITIONER ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN C.C.NO.811/2012 FILED BEFORE THE M.M.T.C.-I, MAYO HALL, M.G.ROAD, BANGALORE AND THE SUMMONING ORDER DATED 21.07.2012 ISSUING FRESH SUMMONS TO THE PETITIONER IN C.C.NO.811/2012 ON THE FILE OF THE M.M.T.C.-I, MAYO HALL, M.G.ROAD, BANGALORE.
IN CRL.P. NO.7220/2012: BETWEEN:
MR. VIJAY KUMAR S/O MR. T.G.K. MURTHY PARTNER DECCAN DISTRIBUTORS NO.38, 1ST FLOOR, C.M.H ROAD INDIRANAGAR, 2ND STAGE BENGALURU – 560 038.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
... PETITIONER THE INSPECTOR OF LEGAL METROLOGY, WILSON GARDEN SUB DIVISION CORPORATION BUILDING, MINERVA CIRCLE BENGALURU.
(BY SRI. S. RACHAIAH, HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN C.C.NO.811/2012 AT ANNEXURE-A FILED BEFORE THE M.M.T.C.-I, MAYO HALL, M.G.ROAD, BANGALORE AND THE SUMMONING ORDER DATED:21.07.2012 AND SUBSEQUENT ORDER DATED:04.12.2012 RE-ISSUING SUMMONS AT ANNEXURE A-1.
IN CRL.P. NO.1948/2013: BETWEEN:
RAYBAN SUN OPTICS INDIA LIMITED SP810-811 PHASE-1 RIICO INDISTRIAL AREA BHIWADI, ALWAR DISTRICT RAJASTHAN – 301 019 REPRESENTED BY ITS MANAGER MR. S. ARAVIND KUMAR.
(BY SRI. SATISH T.S, ADVOCATE-ABSENT) AND:
THE INSPECTOR OF LEGAL METROLOGY, WILSON GARDEN SUB DIVISION CORPORATION BUILDING, MINERVA CIRCLE BENGALURU – 560 027.
... PETITIONER ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN C.C.NO.811/12 FILED BEFORE THE MMTC-I, MAYO HALL, M.G. ROAD, BANGALORE AND THE SUMMONING ORDER DATED:JULY 21, 2012 AND SUBSEQUENT ORDERS DATED:04.09.12 ISSUING FRESH SUMMONS TO THE PETR.
IN CRL.P. NO.4747/2014: BETWEEN:
1. M/S UNITY LOGISTICS THROUGH MR. MAHESH N.M DEPOT MANAGER PLOT NO. 74B, C BIDADI INDUSTRIAL AREA 2ND STAGE, SHANUMANGALA POST BIDADI, RAMANAGARA DISTRICT KARNATAKA.
2. BRITANNIA INDUSTRIES LIMITED THROUGH ITS AUTHORISED SIGNATORY, HAVING ITS REGISTERED OFFICE AT 5/1A HUNGERFORD STREET KOLKATA - 700 017 WEST BENGAL REPRESENTED BY AUTHORISED SIGNATORY & MANAGER MS. ARYA MATHEW.
3. MR. NUSLI N WADIA S/O MR. NEVILLE NESS WADIA AGED ABOUT 70 YEARS CHAIRMAN OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA -700 017 WEST BENGAL.
4. MR. S.S. KELKAR S/O MR. SADASHIV G KELKAR AGED ABOUT 75 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
5. MR. NIMESH N KAMPANI S/O MR. NAGINDASKAMPANI AGED ABOUT 67 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
6. MR. KEKI DADISETH S/O MR. BOMIKHURSHED DADISETH AGED ABOUT 68 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET KOLKATA - 700 017 WEST BENGAL.
7. MR. NASSER MUNJEE S/O MR. MUKHTAR CASSAMALLY MUNJEE AGED ABOUT 63 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
8. DR. VIJAY L KELKAR S/O MR LAXMAN VISHNU KELKAR AGED ABOUT 72 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
9. MR. A.K. HIRJEE S/O MR. JEWRAJ HIRJEE AGED ABOUT 75 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
10. MR. AVIJIT DEB S/O MR. SATYENDRA CHANDRA DEB AGED ABOUT 66 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
11. MR. JEH N WADIA S/O MR. NUSLI N WADIA AGED ABOUT 41 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
12. DR. AJAIPURI S/O MR. INDARJIT PURI AGED ABOUT 60 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
13. MR. NESS N WADIA S/O MR. NUSLI N WADIA AGED ABOUT 44 YEARS DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
14. MR. VARUN BERRY S/O MR. RAJENDRA KUMAR BERRY AGED ABOUT 52 YEARS MANAGING DIRECTOR OF BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET, KOLKATA - 700 017 WEST BENGAL.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
STATE OF KARNATAKA INSPECTOR OF LEGAL METROLOGY FLYING SQUAD-I NO.1, ALIASKAR ROAD BANGALORE - 560 052 ... PETITIONERS ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN COMPLAINT CASE NO.466/14 FILED BY THE RESPONDENT AND PENDING BEFORE COURT OF ADDL.C.J. AND JMFC, RAMANAGARA, KARNATAKA, AT ANNEXURE-A AND PASS NECESSARY ORDERS THEREIN.
IN CRL.P. NO.4004/2012:
BETWEEN:
BRITANNIA INDUSTRIES LIMITED HAVING ITS REGISTERED OFFICE AT 5/1A, HUNGERFORD STREET KOLAKATTA - 700 017 HAVING ITS EXECUTIVE OFFICES AT BRITANNIA GARDEN VIMANAPURA, OLD AIRPORT ROAD BANGALORE – 560 017 AND AT SY NO.79/82, VALLIAPPA COMPOUND, 25TH K.M., MYSORE ROAD, BANGALORE THROUGH ITS AUTHORISED SIGNATORY AND MANAGER - LEGAL MS. ARYA MATHEW.
... PETITIONER (BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
INSPECTOR OF LEGAL METROLOGY SUB DIVISION BADRAVATHI BADARAVATHI SHIMOGA DISTRICT.
... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN C.C. NO.374/2012 FILED BY THE RESPONDENT AND PENDING BEFORE THE CIVIL JUDGE & ADDL. J.M.F.C., BHADRAVATHI AT ANNEXURE-A.
IN CRL.P. NO.1062/2016: BETWEEN:
1. M/S DONTY AGENCIES DONTY BUILDING M.H. ROAD CHITRADURGA - 577 501 THROUGH MRS. D.V. LAKSHMI PARTNER OF DONTY AGENCIIES AND WIFE OF MR. D.A. VENKATACHALAPATHI.
2. MR. D.A. VENKATACHALAPATHI PARTNER OF M/S DONTY AGENCIES DONTY BUILDING, M.H. ROAD CHITRADURGA - 577 501.
3. SRI. SAI AGENCIES (SUPPLIER) THROUGH ITS PROPRIETOR BABA MAHAL, MARATHA COLONY DHARWAD – 580 001.
4. RECKITT BENCKISER HEALTHCARE (INDIA) PRIVATE LIMITED HAVING ITS REGISTERED OFFICE PLOT NO.48, SECTOR 32 INSTITUTIONAL AREA GURGAON, HARYANA THROUGH ITS AUTHORIZED SIGNATORY-MR. PIYUSH KALRA PIN – 122 001.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
STATE OF KARNATAKA INSPECTOR OF LEGAL METROLOGY CHITRADURGA KARNATAKA – 577 501.
... PETITIONERS ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE COMPLAINT IN CRIMINAL C.C.NO.1893/2015, (IN PCR NO.466/2015), FILED BY THE RESPONDENT AND PENDING BEFORE THE SECOND ADDITIONAL CIVIL JUDGE AND JMFC, CHITRADURGA, KARNATAKA.
IN CRL.P. NO.1969/2018: BETWEEN:
MR. RAKESH KAPOOR AGED ABOUT 59 YEARS S/O LATE MR. M.L. KAPOOR RESIDENT OF 103-105 BATH ROAD, SLOUGH BERKSHIRE, SL 1 3 UH UNITED KINGDOM.
(BY SRI. R. JAWAHARLAL, ADVOCATE AND SRI. T.S. SATISH, ADVOCATE) AND:
THE STATE THROUGH ASSISTANT CONTROLLER OF LEGAL METROLOGY CHITRADURGA, KARNATAKA BANGALORE - 560 052.
... PETITIONER ... RESPONDENT (BY SRI. S. RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE CRIMINAL COMPLAINT BEING CASE NO.1893/2015 (IN PCR NO.465/2015) FILED BY THE RESPONDENT ARE PENDING BEFORE THE SECOND ADDITIONAL CIVIL JUDGE AND JMFC, CHITRADURGA, KARNATAKA.
THESE PETITIONS BEING HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
O R D E R These petitions have been filed by the respective petitioners for quashing of the proceedings pending before the respective Metropolitan Magistrate Courts as also orders summoning them, which proceedings have been initiated for alleged violation of the provisions of Legal Metrology Act, 2009 (for short ‘the Metrology Act’) read with The Legal Metrology (Packaged Commodities) Rules, 2011, (for short ‘ Packaged Commodities Rules).
2. For the purposes of convenience and immediate reference, the details of cases initiated against respective petitioners and the offences alleged against them are tabulated hereinbelow:
Name of the Petitioner Crl.P.No. Allegation in the complaint Offence alleged Bausch & Lomb Eyecare (I) (Pvt) (Ltd.) VST Industries Limited 5159/2013 arising out of (CC No.811/2012) Crl.P.No.2408/2013 arising out of (CC No.811/2012) Name of the product len’s care solution not printed Net quantity is not marked namely “N” or Violation of Rule 4 and 6 (1) (b) of Packaged Commodities Rules read with Section 18 (1) of Metrology Act. Violation of Rule 13 (5) of Rules and “U”. Section 18 (1) of the Act.
Vijaykumar Crl.P.No.7220/2012 arising out of (CC 811/2012) Net quantity not marked on the package Violation of Rule 13 (5) of Rules and Section 18 (1) of the Act.
Rayban Son Optics India Limited Unity Logistics Britannia Industries Limited Donty Agencies and four others Crl.P.No.1948/2013 arising out of (CC No.811/2012) Crl.P.4747/2014 arising out of (CC No.466/2014) Crl.P.No.4004/2012 arising out of (CC No.374/2012) Crl.P.No.1062/2016 arising out of (C.C.No.1893/2015) Net quantity not marked on the package 23 retail packages of Britannia Biscuits kept in the jar which is alleged not containing the declaration on the jar Retailed packages of Britannia tiger Biscuits wrapped in Shrink Wrap (Transportation Package) kept in carton did not contain the declaration namely the transportation package.
Retailed packages of Moov Ayurvedic Drug wrapped in Shrink Wrap for transportation (Transportation Violation of Rule 13 (5) of Rules and Section 18 (1) of the Act.
Violation of Rule 24 of the Rules and Section 18 (1) and Section 49 (1) of the Act.
Violation of Rule 24 of the Rules and Section 18 (1) and 49 (1) of the Act.
Violation of Rule 6 (5), 18 and 24 of the rules read with Sections 18 and 49 of the Act.
Rakesh Kapoor Crl.P.No.1969/2018 arising out of (CC No.1893/2015) package) kept in Carton were said not containing the declaration namely Shrink Wrap was considered as wholesale package.
Retailed packages of Moov Ayurvedic Drug wrapped in Shrink Wrap for transportation (Transportation package) kept in Carton were said not containing the declaration namely Shrink Wrap was considered as wholesale package.
Violation of Rule 6 (5), 18 and 24 of the rules read with Sections 18 and 49 of the Act.
3. Since common questions of law and facts arise for consideration in the above petitions, they are taken up together, heard and disposed of by this common order.
4. Complaints in question came to be filed by Inspector/Assistant Controller of Legal Metrology against the accused persons alleging that on 17.05.2012/ 07.11.2013/ 17.09.2011/ 05.03.2015, the premises of the respective accused came to be inspected and pre-packed packages as morefully indicated in the respective complaints were seized on finding that declaration as required under the Act and the Rules have not been affixed on the label of the said commodities and thereby petitioners are to be prosecuted and punished for violating the Packaged Commodity Rules.
5. Insofar as Crl.P.Nos.5159/2013, 2408/2013, 7220/2012 and 1948/2013, it was alleged that under the Panchanama dated 17.05.2012, the following pre-packages came to be seized.
a) Renu Fresh Brand Multi purpose solution pre-packaged of net quantity 500 ml – 103 nos.
b) Rayban brand sunglasses pre- packages - 499 Nos.
c) Charminar Brand cigarette pre- packages - 153 Nos.
6. It was alleged that Renu Brand Multi Purpose solution did not have the declaration of the commodity name on its label; the label of Rayban Brand Sunglasses did not contain the declaration of the unit of net quantity marked; and the Pre-packed Charminar cigarettes did not contain the unit of net quantity. Hence, the accused persons had committed the offences punishable under Section 36 (1) and Section 49 (1) of Metrology Act, 2009.
7. I have heard the arguments of Sri T.S.Satish, learned counsel appearing for the petitioners and the learned Government Advocate appearing for respondents.
8. It is the contention of Sri T.S.Satish, learned counsel appearing for petitioners that even if the allegations made in the complaint are to be true, no case is made out against the petitioners in all these cases and as such, this Court in exercise of the powers vested under Section 482 of Cr.P.C. had quashed the proceedings. He would submit that the seized product (in Crl.P.No.5159/2013), petitioner apart from printing its tagline on the top had also printed on the pre- display panel at the bottom “Lens’ Care Solution” along with mandatory declarations in compliance with the Packaged Commodities Rules and as such, there is no violation of the provision of Rule 4 or Rule 6. He would also contend that in so far as “Rayban Sunglasses” (Crl.P.No.7220/2012) allegation in the complaint is that the net quantity is not indicated as “One-U” or “One-N” which cannot be violation under Rule 13 (5) (ii) of the Rules since Sunglasses is not the prepackaged commodity within meaning of Section 2 (1) and he would draw the simile from Section 2 (b) of Standards of Weights and Measurements Act, 1976 and the relevant provisions under the said Rules and contends sunglasses are not sold in packaged form like cooking oil or chocolates and would also extend the similar arguments in case of watches, mobile phone etc., and hence contends that the sunglasses are not prepackaged commodities and on this ground he seeks for allowing Crl.P.7220/2012 and Crl.P.No.1948/2013 as also Crl.P.No.5159/2013.
9. In so far as the allegations made in the complaint which are the subject matter of Crl.P.Nos.4004/2012, 4747/2014, 1062/2016 and 1969/2018 by the prosecution to the effect that packages being transported are to be treated as wholesale packages and consequently declaration under Rule 24 of Packaged Commodities Rules is to be made on the transportation package is erroneous inasmuch as there is not even an iota of allegation in all these complaints and that petitioner had sold the goods as transportation package or intended to be sold by them as such. He would contend that the transportation packages were placed in wholesale package and also required declarations have been made on the wholesale package and as such, there is no violation of Rule 24.
10. Insofar as allegations made against the petitioners which are the subject matter of Crl.P.Nos.1062/2019 and 1969/2018 are concerned, he would contend that it is common that consumer goods, healthcare goods and the like are to be wrapped in shrink wrapper in the factory in order to avoid damages being caused to the goods during its transportation and accordingly 24 boxes of Moov (each weighing 25 gms) had been shrink wrapped and multiple transportation packages were placed in cardboard boxes and undisputedly, mandatory declaration as required under Rule 24 of the Packaged Commodities Rules had been indicated on the cardboard box. He would also submit that similarly all declarations as required under the Packaged Commodities Rules were reflected in retail product and as such, the allegation or contention of the prosecution that transportation package namely 24 Moov packages which had been shrink wrapped for purposes of transportation which is transportation package also ought to have contained declaration is erroneous and as such, the proceedings are liable to be quashed.
11. Learned counsel appearing for the petitioner would also contend that once a nomination is filed under Section 49 of the Metrology Act, no person can be prosecuted other than the nominated person for any offence under the Act or the Rules made thereunder and as such, the criminal prosecution launched against the petitioners 1, 3 to 14 in C.C.No.466/2014 (Crl.P.No.4747/2014) deserves to be allowed and he would elaborate his submission by contending that vicarious liability cannot be fastened that too without any allegations. Hence, he prays for quashing of the proceedings against petitioners 1, 3 to 14 in Crl.P.No.4747/2014 on this ground. He would also extend this contention to Crl.P.No.1969/2018 insofar as accused No.5 by also contending that he is neither a Director nor CEO of the company and as such, the proceedings pending against him in C.C.No.1893/2015 be quashed by allowing Crl.P.No.1062/2016. He would also contend insofar as the food and drugs are concerned, the provisions of Food Safety and Standards Act, 2006 and Drugs and Cosmetic Act, 1940 would be applicable by relying upon the first proviso of Rule 6 (d) and as such, the applicability of Metrology Act is exempted insofar as it relates to declaration to be made under the Metrology Act and Rules made thereunder for goods covered under the Statutes set out in the four provisos to Rule 6 (d) and on this ground he seeks for allowing the Crl.P.Nos.4004/2012, 4747/2014, 1062/2016 and 1069/2018.
12. Per contra, Sri.S.Rachaiah, learned HCGP appearing for the State would support the initiation of prosecution and contends that grounds urged in the petition for quashing are all matter of evidence and until and unless such evidence is brought on record, no finding can be recorded in that regard and as such the proceedings initiated against the petitioner should not be quashed. He would also submit that until and unless there is abuse of process of law, this Court would not exercise inherent power to quash the proceedings. Hence, he prays for rejection of the petition.
13. In all these petitions the respondent who is the Inspector of Legal Metrology has filed the complaints before the jurisdictional Magistrates against the respective petitioners (accused persons) alleging violation of the relevant provisions of Legal Metrology Act, 2009 (for short ‘Metrology Act’) and Legal Metrology (Packaged Commodities) Rules, 2011 (for short ‘Packaged Rules’). Insofar as, violation of Legal Metrology Rules are concerned, same would be dealt in each of the petitions independently. However, insofar as the violation of the provisions of the Act are concerned it would be apt and appropriate to note the said provision at the initial stage itself, so as to avoid repetition of the same while dealing with each of the petitions. Hence, Sections 18, 36 and 49 of the Act are extracted hereinbelow:
“18. Declarations on pre- packaged commodities.—(1) No person shall manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed.
(2) Any advertisement mentioning the retail sale price of a pre-packaged commodity shall contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed.”
“36. Penalty for selling, etc., of non-standard packages.—(1) Whoever manufactures, packs, imports, sells, distributes, delivers or otherwise transfers, offers, exposes or possesses for sale, or causes to be sold, distributed, delivered or otherwise transferred, offered, exposed for sale any pre- packaged commodity which does not conform to the declarations on the package as provided in this Act, shall be punished with fine which may extend to twenty-five thousand rupees, for the second offence, with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.
(2) Whoever manufactures or packs or imports or causes to be manufactured or packed or imported, any pre-packaged commodity, with error in net quantity as may be prescribed shall be punished with fine which shall not be less than ten thousand rupees but which may extend to fifty thousand rupees and for the second and subsequent offence, with fine which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.”
“49. Offences by companies and power of court to publish name, place of business, etc., for companies convicted.--(1) Where an offence under this Act has been committed by a company,--
(a) (i) the person, if any, who has been nominated under sub- section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as a person responsible); or (ii) where no person has been nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorise any of its directors to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Director or the concerned Controller or any legal metrology officer authorised in this behalf by such Controller (hereinafter in this section referred to as the authorised officer) in such form and in such manner as may be prescribed, that it has nominated such director as the person responsible, along with the written consent of such director for being so nominated.
Explanation.—Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub-section (2) shall, until-
(i) further notice cancelling such nomination is received from the company by the Director or the concerned Controller or the authorised officer; or (ii) he ceases to be a director of the company; or (iii) he makes a request in writing to the Director or the concerned Controller or the legal metrology officer under intimation to the company, to cancel the nomination, which request shall be complied with by the Director or the concerned Controller or the legal metrology officer, whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director of the company, he shall intimate the fact of such cessation to the Director or the concerned Controller or the authorised officer:
Provided further that where such person makes a request under clause (iii) the Director or the concerned Controller or the authorised officer shall not cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub- sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to the neglect on the part of, any director, manager, secretary or other officer, not being a person nominated under sub- section (2), such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(5) Where any company is convicted under this Act for contravention of any of the provisions thereof, it shall be competent for the court convicting the company to cause the name and place of business of the company, nature of the contravention, the fact that the company has been so convicted and such other particulars as the court may consider to be appropriate in the circumstances of the case, to be published at the expense of the company in such newspaper or in such other manner as the court may direct.
(6) No publication under sub- section (5) shall be made until the period for preferring an appeal against the orders of the court has expired without any appeal having been preferred, or such an appeal, having been preferred, has been disposed of.
(7) The expenses of any publication under sub-section (5) shall be recoverable from the company as if it were a fine imposed by the court.
Explanation.-For the purposes of this section,-
(a) “company” means any body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm but excludes nominated directors, honorary directors, Government nominated directors.”
14. Section 18 of the Metrology Act mandates that no person can manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any prepackaged commodity unless such package is in such standard quantities or numbers and bears such declaration and particulars in such manner as may be prescribed. It also mandates that any advertisement mentioning of the retail sale price of a prepackaged commodity should also contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed. The penal provision is traceable to Section 36 namely, manufacturing, packing, importing, selling, distributing or otherwise, transferring, offering, exposing or possessing for sale any prepackaged commodity is punishable with fine upto Rs.25,000/- and for the second offence the fine upto Rs.50,000/- and for the subsequent offence, with fine of not less than Rs.50,000/- but which may extend to Rs.1,00,000/- or with imprisonment upto 1 year, with fine.
15. Where the offence is committed by a company, it is only those persons who are specified in Clause (a)(i) and (ii) would be deemed to be guilty of the offence or in other words, they would be vicariously liable to be punished. However, even for such persons a succor is provided under the proviso to sub-section (1) to establish and prove that the offence alleged to have been committed by the company was without his/her knowledge and they had exercised all due diligence to prevent the commission of such offence. In fact, sub-section (2) of Section 49 enables the company to nominate a person to be incharge of, and responsible to, the company for the conduct of the business of the company and in the event of such nomination having been made it would be such person only who can be arraigned as an accused. In other words, those persons who are not even remotely connected to the conduct of the business of the company and not being responsible for the conducting of day-to-day business of the company or persons who are not incharge of the company cannot be implicated as an accused, merely because they either being the officer of the company or the director of the company, as the case may be.
RE. CRL.P.NO.4747/2014:
16. The records in this petition would disclose that a declaration as required under Section 49(2) of LM Act had been filed declaring the nominated person vide declaration dated 08.11.2011 (Annexure-C), which was valid as on the date of seizure.
17. A bare reading of Section 49(2) of the LM Act would clearly disclose that Ms. Vinitha Bali, Managing Director of Britania Industries Ltd. had been appointed as the ‘Nominee’, to be incharge of, and responsible to, the company for compliance with the provisions of the Legal Metrology Act. The said declaration has been duly received by the respondent herein as is evident from the acknowledgement affixed in the declaration so submitted vide Annexure-C.
18. Section 49(1) mandates that for launching the prosecution under the Act it can be only against such nominated persons who would be liable to be proceeded against. As such initiation of prosecution against first petitioner (accused No.1), second petitioner, and petitioners 3 to 14 (accused 2 to 13) is bad in law and contrary to Section 49(1) and as such the proceedings initiated against petitioners is liable to be quashed and Crl.P.No.4747/2014 deserves to be allowed.
RE. CRL.P.No.5159/2013:
19. Petitioner is a company incorporated under the Companies Act, 1956, and is engaged in providing healthcare solution by offering range of eye health products including contact lenses, lense care products, pharmaceuticals, intraocular lenses and eyes surgery products. Petitioner markets lense care products known as “renu® fresh ™ lense care solution and the like products.
20. It is the case of the respondent that on 17.05.2012 the premises of the wholesale dealer of first petitioner was inspected and seized 103 numbers “lense care solution”. It was alleged that petitioner had violated Rule 4 and 6(1)(b) of Packaged Commodity Rules and it had not declared the name of the seized product i.e., “Lense care solution” and had only returned “renu® fresh™” multipurpose solution and violated Section 18 of Legal Metrology Act, which is punishable under Section 36(1) of the Legal Metrology Act.
“4. Regulation for pre-packing and sale etc., of commodities in packaged form.--On and from the commencement of these rules, no person shall pre-pack or cause or permit to be pre-packed any commodity for sale, distribution or delivery unless the package in which the commodity is pre-packed bears thereon, or on a label is securely affixed thereto, such declarations as are required to be made under these rules.
Explanation.-- The existence of packages without the declaration of retail sale price within the manufacturer’s premises shall not be construed as a violation of these rules and it shall be ensured that all packages leaving the premises of manufacturer for their destination shall have declaration of retail sale price on them as required in this rule.”
“6. Declarations to be made on every package.--(1) Every package shall thereon or on label securely affixed thereto, a definite, plain and conspicuous declaration made in accordance with the provisions of this chapter as, to-
(a) xxxx [(aa) xxxx (b) The common or generic names of the commodity contained in the package and in case of packages with more than one product, the name and number or quantity of each product shall be mentioned on the package.
21. A plain reading of Rule 4 would indicate that no person shall be pre-pack or cause or permit to be per-packed any commodity for sale, distribution or delivery unless such package in which the commodity is pre-packed bears a label with such declarations to be made under the Rules. Likewise, on bare reading of Rule 6 it would disclose as to the declaration to be made on every package. It would also disclose that such declaration should be by a label securely affixed on the prepackaged commodity in a definite, plain and conspicuous declaration.
22. The allegations made in the complaint (Annexure-B) would indicate that declaration of the commodity name is not indicated. The copy of the label has been produced at Annexure-D and perusal of the same would disclose that it contains a tagline to the effect “multipurpose solution” and at the bottom of the label it is printed as “Lense care solution”.
23. Rule 6(1)(b) mandates that common and generic names of the commodity contained in the package and in case of packages with more than one product, the name and number or quantity of each product shall be mentioned on the package, which is in consonance with Rule 4 r/w Rule 6(1)(b) of Metrology Rules. In fact, the Ministry of Health and Family Welfare (Medical Devices Division) by its communication dated 06.03.2012 (Annexure-E) addressed to petitioner has informed that the product is known as “Lense care solution” and is not covered under the provisions of Drugs and Cosmetics Act and Rules thereunder. Thus, the subject commodity “Lense care solution” which the customer intends to purchase would serve the purpose of the Rule and thereby the consumer would be aware about the commodity which they intend to buy.
24. It also requires to be noticed that in the instant case the office of the petitioner is situated at New Delhi and Gurgaon and in such case the jurisdictional Magistrate ought to have postponed the issue of process against the accused and an enquiry had to be made before passing the order summoning the petitioner, as per the mandate of Section 202(1) of Cr.P.C. In the instant case, the order summoning the accused is without any enquiry and contrary to Section 202 of Cr.P.C. In other words, before passing the order of summoning the petitioner after taking cognizance of the offence, had to follow the procedure prescribed under Section 202(1) of Cr.P.C. The enquiry or investigation indicated in Section 202(1) is mandatory and in the instant case no such enquiry has been held before issuing the summons and on this ground also the order summoning the petitioner requires to be set aside. Hence, I am of the considered view that petitioner is entitled to the relief sought for.
Consequently, Crl.P.No.5159/2013 deserves to be allowed.
RE.CRL.P.NO.2408/2013:
25. A private complaint came to be filed under Section 200 of Cr.P.C. against the petitioner (Accused No.4) before Metropolitan Magistrate Court, Mayo Hall, Bangalore, in C.C.No.811/2012 alleging that on 17.05.2012 the business premises of accused No.1 was inspected and they were engaged in wholesale buying and selling of various goods including cigarettes. On the ground that the symbol of the unit is not marked on pre-packed retail packages or cigarettes, containing 10 number of each cigarettes of brand name “Charminar” was manufactured and sold by the petitioner and as such 153 numbers of pre-packed retail packages of cigarettes came to be seized. It is alleged in the complaint that non display of the unit of measurement is violation of Rule 13(5) of the Packaged Commodities Rules and Section 18(1) and 36(1) of the Act. Rule 13 reads as under:
“13. Statement of units of weight, measure or number.—(1) The units of weight or measure or number shall be specified in accordance with the units specified in sub-rule (2) or sub-rule (3), as the case may be.
(2) When expressing a quantity less than,— (a) one kilogram, the unit of weight shall be the gram;
(b) one metre, the unit of length shall be the centimetre;
(c) one square metre, the unit of area shall be the square decimetre;
(d) one cubic metre, the unit of volume shall be one cubic centimetre;
(e) one cubic decimetre, the unit of volume shall be the cubic centimetre;
(f) one litre, the unit of volume shall be the millilitre.
(3) When expressing a quantity of equal to or more than— (a) one kilogram, the unit of weight shall be the kilogram and any fraction of a kilogram shall be expressed in terms of decimal of sub- multiples of kilogram or in terms of grams;
(b) one metre, the unit of length shall be the metre and any fraction of a metre shall be expressed in terms of decimal of sub-multiples of the metre or in terms of centimetre;
(c) square metre, the unit of the area shall be the square metre and any fraction of a square metre shall be expressed in terms of decimal of sub- multiple of the square metre;
(d) cubic metre, the unit of volume shall be the cubic metre and any fraction of a cubic metre shall be expressed in terms of decimal sub- multiple of the cubic metre;
(e) one litre, the unit of volume shall be the litre and any fraction of a litre shall be expressed in terms of decimal of sub-multiple of the litre:
Provided that where the quantity to be expressed is equal to one kilogram, one metre, one square metre, one cubic decimetre, one cubic metre or one litre, as the case may be, such quantity may be expressed at the option of the manufacturer or the packer or the importer, as the case may be, in terms of gram, centimetre, square decimetre, cubic centimetre, cubic decimetre or millilitre as the case may be.
(4) No number called the dozen, score, gross, great gross or the like shall be specified or indicated on any package.
(5) Symbol of units:—(i) No system of units other than the International System of Units shall be used in furnishing the net quantity of the package;
(ii) For items sold by number the symbol should be N or U.
[Explanation.—For the purposes of this sub-rule, it is clarified that for indicating the unit for litre, the letter ’L’ may be adopted to avoid confusion with the letter ’I’ and figure ’1’] [(6) where there are number of packages of the same commodity in a prepackage, the number of packages and the quantity of each package shall be indicated as a supplementary quantity declaration in the package.
Explanation.—For the purposes of this sub-rule, where the net quantity of a package is one hundred grams, the number of packages multiplied by the net quantity of each package shall be separately indicated in numbers multiplied by its individual weight (i.e., 10 number x 10 grams).] 26. A plain reading of sub-rule (1) of Rule 13 would indicate that units of weight or measure or number has to be specified in accordance with the units specified in sub-rule (2) and sub-rule (3) as the case may be. In the instant case, we are concerned with the product cigarette packs and the relevant Rule as applicable would be sub-rule (5), which relates to symbol of units. Sub-rule (5)(ii) mandates that for items sold by number the symbol should be ‘N’ or ‘U’. In the complaint which has been lodged by the respondent it has been alleged that seized CHARMINAR brand cigarettes pre-packed packages, unit of net quantity is not marked and thereby there is violation of Rule 13(5) of the Metrology Rules.
27. In the instant case, the total number of cigarettes is specifically mentioned on the pre-packaged commodity namely cigarette pack. It is not the case of the prosecution that the pre-packaged commodity contained less than 10 cigarettes. In fact, the panchanama drawn at the spot would clearly disclose that each of the pre-packed packages contain 10 cigarettes. Hence, at this juncture it would be appropriate to note Rule 6(c) which mandates that net quantity, in terms of the standard unit of weight or measure, of the commodity contained in the package or where the commodity is packed or sold by the number, the number of the commodity contained in the package shall be mentioned. Thus, it would be in compliance of Rule 6(c).
28. A customer buying a package of cigarettes would have a clear view and reading of the net mark found on the pre-packaged commodity would definitely be aware that the package contains “10 cigarettes” in the pre-packed package and there cannot be any scope for ambiguity creeping in the mind of the consumer/buyer.
29. In the instant case, petitioner (accused No.4) is a registered company having its office at Hyderabad, which is outside the jurisdiction of the Magistrate before whom the private complaint has been filed. Thus, jurisdictional Magistrate ought to have postponed the issue of process against the accused and an enquiry had to be made before passing the order summoning the petitioner, as per the mandate of Section 202(1) of Cr.P.C. In the instant case, the order summoning the accused is without any enquiry and contrary to Section 202 of Cr.P.C. In other words, before passing the order of summoning the petitioner after taking cognizance of the offence, had to follow the procedure prescribed under Section 202(1) of Cr.P.C. The enquiry or investigation indicated in Section 202(1) is mandatory and in the instant case no such enquiry has been held before issuing the summons and on this ground also the order summoning the petitioner requires to be set aside. Hence, I am of the considered view that petitioner is entitled to the relief sought for. Consequently, Crl.P.No.2408/2013 deserves to be allowed.
RE. CRL.P.Nos.7220/2013 and 1948/2013:
30. In these two petitions the issue involved relates to sun glasses being a pre-packaged commodity or not. Petitioners in these two cases have relied upon the order dated 08.07.2009 rendered by the Coordinate Bench in W.P.No.728/2007 and said order is under challenge in W.A.No.754/2010. Apart from the above fact it requires to be noticed that in the matter of STATE OF MAHARASHTRA Vs. SUBHASH ARJUNDAS KATARIA reported in (2011) 9 SCC 670 has referred the matter to a Larger Bench which was in the context of that a ‘Refrigerator’ is a “packaged commodity” and would be covered by the Metrology Act and Rules. hence, the matter has been referred to a larger Bench and in the light of the said reference, the Division Bench of this Court in W.A.No.754/2010 referred to hereinsupra has by order dated 16.01.2019 directed the registry to list the writ appeal after disposal of the matter pending before Hon’ble Supreme Court.
31. In fact, the State of Maharashtra in Kataria’s case referred to hereinabove had contended that sun glasses are “pre-packed commodity” within the meaning of the Act and the Rules thereof and it was also contended that similarly analogy is to be applied for other products also. Said issue being at large and pending before the Hon’ble Apex Court as well as before the Division Bench of this Court I am of the considered view that these two matters are to be listed after disposal of the matters referred to hereinabove and accordingly, they are delinked and registry is directed to list these two matters after disposal of W.A.No.754/2010.
RE. CRL.P.No.1062/2016 & 1969/2018:
32. Respondent herein has filed the private complaints against the petitioners (accused Nos.1 to 3 in Crl.P.No.1062/2016 and accused No.5 in Crl.P.No.1969/2018 both arising out of C.C.Nos.1893/2015) alleging that retail packages of Moov Ayurvedic drug wrapped in shrink wrap for transportation, which in turn was kept in a carton did not contain the declaration as required under Rule 6(5) of Metrology Rules.
33. Since it has been alleged that there has been violation of Rules 6, 18 and 24 by the petitioners namely, the shrink wrapped package containing 24 retail units of 25 gram packet did not contain the mandatory declaration as required under Rule 6(5), 18 and 24, it would be apt and appropriate to extract the said Rules.
“6(5). Where a commodity consists of a number of components and these components are packed in two or more units, for sale as a single commodity, the declaration required to be made under sub-rule (1) shall appear on the main package and such package shall also carry information about the other accompanying packages or such declaration may be given on individual packages and intimation to that effect may be given on the main package and if the components are sold as spare parts, all declarations shall be given on each package.”
“18. Provisions relating to wholesale dealer and retail dealers.—(1) No wholesale dealer or retail dealer or importer shall sell, distribute, deliver, display or store for sale any commodity in the packaged form unless the packaged complies with in all respects, the provisions of the Act and these rules.
[(IA) The wholesale dealer shall be allowed to sell the pre-packaged commodities directly to the industrial and institutional consumers.] (2) No retail dealer or other person including manufacturer, packer, importer and wholesale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof, [(2A) Unless otherwise specifically provided under any other law, no manufacturer or packer or importer shall declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices as defined under clause (c) of sub-section (1) of section 2 of the Consumer Protection Act, 1986 (68 of 1986).] (3) Where, after any commodity has been pre-packed for sale, any tax payable in relation to such commodity is revised, the retail dealer or any other person shall not make any retail sale of such commodity at a price exceeding the revised retail sale price, communicated to him by the manufacturer, or where the manufacturer is not the packer, the packer, and it shall be, the duty of the manufacturer or packer as the case may be, to indicate by not less than two advertisements in one or more newspapers and also by circulation of notices to the dealers and to the Director in the Central Government and Controllers of Legal Metrology in the States and Union Territories, the revised prices of such packages but the difference between the price marked on the package and the revised price shall not, in any case, be higher than the extent of increase in the tax or in the case of imposition of fresh tax higher than the fresh tax so imposed:
Provided that publication in any newspaper, of such revised price shall not be necessary where such revision is due to any increase in, or imposition or, any tax payable under any law made by the State Legislatures:
Provided further that the retail dealer or other person, shall not charge such revised prices in relation to any packages except those packages which bear marking indicating that they were pre- packed in the month in which such tax has been revised or fresh tax has been imposed or in the month immediately following the month aforesaid;
Provided also that where the revised prices are lower than the price marked on the package, the retail dealer or other person shall not charge any price in excess of the revised price, irrespective of the month in which the commodity was pre-packed.
(4) Nothing in sub-rule (3) shall apply to a package which is not required, under these rules to indicate the month and the year in which it was pre-packed.
(5) No wholesale dealer or retail dealer or other person shall obliterate, smudge or alter the retail sale price, indicated by the manufacturer or the packer or the importer, as the case may be, on the package or on the label affixed thereto. " .
(6) The manufacturer or packer or the importer shall not alter the price on the wrapper once printed and used for packing.
(7) All retailers who are covered under the Value Added Tax (VAT) or Turn Over Tax (TOT) and dealing in packaged commodities whose net content declaration is by weight or volume or a combination thereof shall maintain an electronic weighing machine of at least accuracy class III, with smallest division of at least 1g, with facility to issue a printed receipt indicating among other things, the gross quantity, price and the like at a prominent place in their retail premises, free of cost, for the benefit of consumers and the consumers may check the weight of their packaged commodities purchased from the shop on such machine.
[(8) (1) All the marketing companies, manufacturers, packers, importers or distributors of Liquefied Petroleum Gas cylinder shall maintain a check weigher or non-automatic weighing instrument, digital or analogue, of Accuracy class-III (Max. 50 kg, e=10g) to check the weight of the Liquefied Petroleum Gas cylinder.
(2) The marketing companies, manufacturers, packers, importers or distributors referred to in sub-rule (1), shall provide to the delivery man to measure or weigh the correct quantity of the Liquefied Petroleum Gas cylinder.]”
“24. Declarations applicable to be made on every wholesale package.-- Every wholesale package shall bear thereon a legible, definite, plain and conspicuous declaration as to-
(a) The name and address of the manufacturer or importer or where the manufacturer or importer is not the packer, of the packer;
(b) the identity of the commodity contained in the package; and (c) the total number of retail package contained in such wholesale package or the net quantity in terms of standard units of weights, measures or number of the commodity contained in wholesale package:
Provided that nothing in this rule shall apply in relation to the wholesale package if a declaration similar to the declarations specified in this rule, is required to be made on such wholesale packages by or under any other law for the time being in force.”
34. A plain reading of sub-rule (5) of Rule 6 indicates where a commodity consists of a number of components and these components are packed in two or more units, for sale as a single commodity the declaration required to be made under sub-rule (1) shall appear on the main package and such package also should contain information about other accompanying packages or such declaration may be given on the individual packages and intimation to that effect has to be given on the main package and if the components are sold as spare parts, all declarations shall be given on each package. It is the allegation in the complaint that such shrink wrapped package was not complying with the mandate of sub-rule (5) of Rule 6 and in the light of prohibition contained under Rule 18 for products being sold unless the package complies with in all respects, the provisions of the Act and the Rules and there being violation of it the accused is to be proceeded with for being punished. Rule 24 mandates that every wholesale package shall bear thereon a legible, definite, plain and conspicuous declaration, disclosing the details as specified in Clause (a) to (c) of Rule 24.
35. In the light of the aforestated facts, it requires to be examined as to whether the “transportation package” constitutes “wholesale package” and thereby it would fall within the definition of pre-package commodity. For the purposes of better understanding, it would be apt and appropriate to extract the definition of these expressions as defined under the Package Commodity Rules and they read as under:
2(k) “retail package” means the packages which are intended for retail sale to the ultimate consumer for the purpose of consumption of the commodity contained therein and includes the imported packages: [Provided that for the purposes of “retail food package”, the definition of the same contained in the rules or regulations made under the Food Safety and Standards Act, 2006 (34 of 2006) shall apply.] 2(l) “retail sale”, in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales shops, agencies a other instrumentalities for consumption by an individual or a group of individuals or any other consumer;”
36. A plain reading of proviso to Rule 6(1)(d) of LMPC Rules would indicate that it provides in respect of packages containing food articles, the provisions of FSSA, 2006 and the Rules made thereunder would apply. In terms of third proviso, similar exception is given in respect of packages containing drugs or cosmetics, which would be covered under the Drugs and Cosmetics Act. Thus, it is clear from plain reading of LMPC Rules, it envisages application of other statutes in relation to declarations to be made on prepackaged commodity. In other words, the Legal Metrology Act and the Rules made thereunder exempts the applicability of provisions relating to it, insofar as goods covered under the statutes set out in the four provisos to Rule 6(1)(d) of the Rules.
37. That apart, in Crl.P.No.1062/2016 it would disclose that petitioner therein is the Chief Executive Officer and Director on the Board of the Company Reckitt Benckiser Plc., United Kingdom and 4th accused is one of the affiliates of the above company. Petitioner is neither a Director or Member on the Board of the Directors of Accused NO.4; he is not incharge or responsible for the conduct of accused No.4. This would also get fortified from the extract of the website of Registrar of Companies at Annexure-C. No nomination having been filed under Section 49 of the LMPC Act, since the criminal liability can be fastened in terms of said Section i.e., 49. Only in case of nomination having been filed under Section 49(1)(a)(ii) of the LMPC Act, such liability can be cast on all persons who are incharge and responsible for the conduct of the affairs of the company. Even otherwise, if there is no nomination it is only those persons who are responsible for conduct of affairs of the company can be fastened with vicarious liability. In the instant case, petitioner is neither the Managing Director nor CEO or a Director of accused No.4 company. As such petitioner cannot be prosecuted for vicarious liability. In fact, there is no specific allegation also in the complaint against the petitioner herein. As such the principles laid down by the Apex Court in SMS Pharmaceuticals vs. Neetha Balla and Anoterh reported in (2007) 4 SCC 70 would be squarely applicable to the facts on hand. Thus, petitioners in Crl.P.No.1062/2016 and 1969/2018 are entitled to the relief sought for or in other words, petition filed by them deserves to be allowed.
RE. CRL.P.4004/2012:
38. Petitioners have been arraigned as accused Nos. 2 and 3 and gist of the prosecution case is that packages of Britania Tiger Biscuits wrapped in shrink wrap (transportation package), kept in Carton did not contain the declaration namely, the transportation package did not contain declaration. As to whether transport packages would fall within the sweep of wholesale package as defined under Rule 2 (4) and as such declaration is to be made under Rule 24 of LMPC Rules, has been examined by this Court in Crl.P.Nos.1062/2016 and 1969/2018 herein above and has been held as under :
“A plain reading of proviso to Rule 6(1)(d) of LMPC Rules would indicate that it provides in respect of packages containing food articles, the provisions of FSSA, 2006 and the Rules made thereunder would apply. In terms of third proviso, similar exception is given in respect of packages containing drugs or cosmetics, which would be covered under the Drugs and Cosmetics Act. Thus, it is clear from plain reading of LMPC Rules, it envisages application of other statutes in relation to declarations to be made on prepackaged commodity. In other words, the Legal Metrology Act and the Rules made thereunder exempts the applicability of provisions relating to it, insofar as goods covered under the statutes set out in the four provisos to Rule 6(1)(d) of the Rules”.
39. Package or container used for convenience for safety or for transportation of goods contending wholesale or resale package is only a package carried out for safety of goods and as such, no declaration is required to be given on such transportation package, in as much as secondary packing is done for the purpose of facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade. There is no dispute to the fact that on the wholesale package as well as on the retail package of the biscuits sold to the customer the necessary information as contemplated of the Act and Rules is reflected on the respective packages. It is the allegation in the complaint that secondary package in which the retail packages were packed do not contain the said information. Secondary outer packing done for transporting cannot be brought within the definition of wholesale package. Gunny bags are used for safety or transport can be set to be wholesale secondary package. Thus, in the instance case the Britania Biscuits manufactured in multiple crores which are to be distributed for sale all over India is a product which is having short span of shelf life, this court cannot lose sight of the fact that in reality the biscuits if exposed to moisture, would definitely loose their crispness and same being a bakery product it would become brittle and tend to break during transportation, as a result of which it would render the product unsaleble. Thus, individual retail packets for being transported is shrink wrapped and placed in a jar and thereafter stacked in card board boxes and each box would contain 100 or more retail packages. Thus, it would partake the character of wholesale package. In other words, the card board boxes containing 200 retail packets would partake the character of wholesale package and the said card board box contains the declaration as required to be made under Rule 24 of Packaged Commodity Rules. As such, contention of the prosecution cannot be accepted. That apart, in the instant case, records would also disclose that a declaration as required under Section 49(2) had been filed (as Annexure-C) and as such it is rightly contended that petitioner not being a nominated person, prosecution can be lodged only against such person who is nominated under Section 49(1) of the Act and the proceedings against petitioners is liable to be quashed. In other words, petitioners are entitled to the relief sought for namely, Crl.P.No.4004/2012 deserves to be allowed.
40. For reasons aforestated, I proceed to pass the following:
ORDER (i) Crl.P.Nos.5159/2013, 2408/2013, 4747/2014, 1062/2016, 1969/2018 and 4004/2012 are allowed insofar as petitioners are concerned and proceedings pending against them in C.C.Nos.811/2012, 466/2014 and 1893/2015 are quashed.
(ii) Crl.P.Nos.7220/2012 and 1948/2013 are ordered to be delinked for the reasons set out in paragraphs 30 and 31 and it is ordered to be listed after the disposal of the matters pending before Hon’ble Apex Court.
SD/- JUDGE *sp/Jm/DR