® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.30523 OF 2012 (GM-RES) BETWEEN:
RELIANCE RETAIL LIMITED NO.62/2, 5TH FLOOR RICHMOND ROAD BANGALORE-560025 ... PETITIONER (BY SRI. AJOY KUMAR PATIL, ADVOCATE;
NAME HAS BEEN CHANGED VIDE COURT ORDER DATED 22.09.2015) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF FOOD & CIVIL SUPPLIES VIKAS SOUDHA DR.B.R.AMBEDKAR ROAD BANGALORE-560001 2. THE CONTROLLER OF LEGAL METROLOGY NO.1, PB NO.175 ALI ASKAR ROAD BANGALORE-560052 3. THE DEPUTY CONTROLLER OF LEGAL METROLOGY BANGALORE DISTRICT NO.763, 5TH BLOCK RAJAJINAGAR BANGALORE-560010 4. THE INSPECTOR OF LEGAL METROLOGY YESHWANTHPUR SUB DIVISION NO.66, 67, 1ST FLOOR YESHWANTHPUR MARKET COMPLEX YESHWANTHPUR BANGALORE-560002 … RESPONDENTS (BY SMT. M.C. NAGASHREE, AGA) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED NOTICE DATED 22.8.2012 ISSUED BY THE RESPONDENT NO.4 UNDER SECTION 15 OF THE LEGAL METROLOGY ACT, 2009 VIDE ANNEXURE-C AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. The Petitioner aggrieved by the show cause notice dated 22.08.2012 issued by the 4th respondent under Section 15 of the Legal Metrology Act, 2009 (‘Act’ for short) wherein the petitioner is alleged to have violated the Act and Legal Metrology (Packaged Commodities) Rules, 2011 (‘Rules of 2011’ for short) has presented this petition.
2. The petitioner states that it is a company incorporated under the provisions of the Companies Act, 1956 and inter alia carries on retail business of agricultural products like fruits and vegetables as also fast moving consumer goods. The petitioner has various distribution centres and retail outlets across the country. One such distribution centre is situate at Adakamaranahalli village, Dasanpura Hobli, Bengaluru.
3. The petitioner has obtained a general licence from the Dasanapura Grama Panchayat on 12.03.2012 for locating a warehouse/distribution centre. Petitioner states that the petitioner sources various commodities which are delivered at its distribution centre and thereafter, the petitioner processes those goods and material for onward transmittal to its retail centres/outlets. The petitioner does not carry on any manufacturing or packing activity, but is only a reseller/retailer of those goods.
4. Petitioner states that on 22.08.2012, a team led by 3rd respondent without any warrant inspected and searched the above distribution centre and seized certain goods lying in the distribution centre and thereafter, 3rd respondent having prepared the mahazar, prepared a list of goods seized and violations said to have been committed by the petitioner of the provisions of the Act and Rules.
5. Shri Ajoy Kumar Patil, the learned counsel for the petitioner submits that the aforesaid actions on the part of the respondents are in violation of the Act and Rules inasmuch as:
5.1. Section 15(4) provides that every search or seizure made under the Section shall be carried out in accordance with the provisions relating thereto and Criminal Procedure Code, 1973, (‘Cr. Pc’ for short) more particularly Section 94 and 102 of the Code.
5.2. In terms of Section 94 of Cr. P.C, it is only a Magistrate or a sub-divisional Magistrate who can issue a warrant for such seizure and in the present case, the inspection and seizure having been conducted by 3rd respondent, who is not a magistrate or Sub-divisional Magistrate, is violative, both of Section 15(4) of the Act and Section 94 of the Cr.P.C.
5.3. The violations which have been attributed to the petitioner is in terms of violating Rules 6, 7, 8, 9, 11 and 24 of the Rules. He submits that these violations could not be committed by the petitioner who is a retailer since the obligations enshrined under those rules are to be discharged by the manufacturer or a packer and cannot be done so by a retailer like the petitioner. He submits that a retailer, does not have the wherewithal to print or publish those requirements on the packages. In short, he submits that the petitioner has no control over the packaging of any of the goods manufactured by a particular manufacturer.
5.4. Many of the seized goods are food products, which are covered by the Food Safety and Standards Act, 2006 and therefore, in terms of explanation (iii) to Rule 6(1)(a), those food products are exempted from the requirement of the Rules.
6. On the basis of the above, he submits that the writ petition needs to be allowed and Annexure-C, show cause notice dated 22.8.2012 issued by the 4th respondent under Section 15 of the Act is required to be quashed. He further states that a writ of mandamus is also required to be issued directing the respondent not to interfere with the petitioner from carrying on retail activity of sale of packaged commodities at the retail outlets or stocking of the goods at the distribution centres maintained by the petitioner.
7. Per contra, Smt Nagashree, learned Additional Government Advocate submits that:
7.1. The officers under the Act being the Director, Controller or any legal Metrology officer are empowered under Section 15 of the Act to inspect, conduct a search and seize any offending articles, if those articles are in breach of or in violation of the Act or the Rules. She submits that there is no requirement for issuance of any warrant as required under Section 94 of Cr.P.C. since the officers are required to discharge their duties as and when an offence is noticed by them and in the event such of the Officers being required to approach the Magistrate for issuance of warrant everytime, the entire purpose and object of the Act would be lost;
7.2. She submits that Annexures-B and C refer to Rules 6, 7, 8, 9, 11 and 24. The said Rules have been mentioned because of those Rules not having been followed. However, the show cause notice is also to be read as one issued under Rule 18 of the Rules. In that she submits that though the petitioner may not have control over what is stated on the packaging of a particular product, there is an obligation imposed in terms of Rule 18 of the Rules on the wholesaler/retailer not to sell any product which does not conform with the provisions of the Act and Rules. She submits that admittedly, there are violations of Rules 6,7, 8, 9, 11 and 24 and the petitioner has accepted such violations, but sought for exemption on the ground that in terms of explanation (3) to Rule 6(1)(a) of the Rules of 2011, food products are exempted. She submits that since the violations are admitted, prayer sought for by the petitioner cannot be granted. Non-mentioning of Rule 18 will not take away the fact of violations committed by the petitioner and hence, the writ petition ought to be dismissed.
8. Heard Shri Ajoy Kumar Patil, the learned counsel for the petitioner and Smt Nagashree, learned Additional Government Advocate and perused records.
9. The questions that arise for determination by this Court are:
i) Whether an Officer under the Act is required to obtain a warrant for the purpose of search and seizure of a premise/s where goods which are in violation of the Act or Rules are located?
ii) What is the procedure to be followed for search and seizure under the Act and Rules.
iii) What is the effect of not following the prescribed procedure for search and seizure?
iv) Would a retailer be responsible for violation of any of the Rules which are directly in control of the manufacturer?
v) Would it be required for the Officers under the Act to specifically state as to in what manner the retailer is responsible for the violation?
vi) What order?
Points 1 and 2:
10. Since both the points are related they are taken up together.
11. Section 15 of the Act reads as under:
“15 Power of inspection, seizure, etc. — (1) The Director, Controller or any legal metrology officer may, if he has any reason to believe, whether from any information given to him by any person and taken down in writing or from personal knowledge or otherwise, that any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place and in respect of which an offence punishable under this Act appears to have been, or is likely to be, committed are either kept or concealed in any premises or are in the course of transportation,— (a) enter at any reasonable time into any such premises and search for and inspect any weight, measure or other goods in relation to which trade and commerce has taken place, or is intended to take place and any record, register or other document relating thereto;
(b) seize any weight, measure or other goods and any record, register or other document or article which he has reason to believe may furnish evidence indicating that an offence punishable under this Act has been, or is likely to be, committed in the course of, or in relation to, any trade and commerce.
(2) The Director, Controller or any legal metrology officer may also require the production of every document or other record relating to the weight or measure referred to in sub-section (1) and the person having the custody of such weight or measure shall comply with such requisition.
(3) Where any goods seized under sub-section (1) are subject to speedy or natural decay, the Director, Controller or legal metrology officer may dispose of such goods in such manner as may be prescribed.
(4) Every search or seizure made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizures”.
12. A perusal of Section 15 of the Act indicates that Director, Controller or any legal metrology officer may, if he has any reason to believe, whether from any information given to him by any person and taken down in writing or from personal knowledge or otherwise, that any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place and in respect of which an offence punishable under this Act appears to have been made, etc., can enter at any reasonable point of time such premises for search, inspection and seizure thereof.
13. A reading of Section 15 of the Act and comparing with the provisions of Section 94 Cr.Pc. indicates that the requirement for the exercise of the power is one and the same except that under Section 94 of Cr.P.C, a warrant authorizing a police officer is required. The authority prescribed under Section 94 Cr.P.C is in respect of stolen property, forged documents, place used for depositing stolen property, objectionable articles, etc., whereas under Section 15 of the Act, the Director, Controller or any legal metrology officer has been empowered to take action against persons who violate the Act or the Rules. Needless to say the Act is a special enactment enacted to deal with specific offences under the Act or Rules by special and qualified officers in that regard.
14. The contentions of learned AGA are required to be accepted in every case when there is a violation of the Act, the Director, Controller or any other legal metrology officer who are specialized officers appointed for specialized purposes cannot be expected to rush to a court of Law to obtain a warrant, such a requirement would amount to negating their powers and impinging on their functions, in cases of emergency. When there is adequate time to obtain a warrant, the same ought to be obtained, however, if an urgent search is to be conducted and it may be difficult to get a search warrant, certain safeguards will have to be observed and conditions fulfilled. There must exist reasonable grounds for believing that it is necessary for carrying out a search of premises with expediency and that if such a search is not conducted immediately, the conduct of the offence may be expedited and/or the evidence thereof be lost. In such a scenario there must be a recording by the officers named in Section 15(4) of the Act, specifying in writing as far as possible the reasons for conducting such a search without a warrant. The objective satisfaction by such officer on the basis of any information given to him by any person that at the location to be searched, any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place, an offence punishable under the Act appears to have already been committed or is about to be committed has to be recorded in writing in sufficient detail. Unless these conditions are fulfilled a search without warrant and the goods seized during such search would be without jurisdiction, these conditions are necessary to safeguard the interest of the person and or organization searched, more so when a search so conducted would also impinge on the right to privacy of such a person or persons in the premises.
15. On enquiry made to the learned AGA as to why a search was conducted and what was the source of information to conduct such a search. The learned AGA has submitted that it is on account of the 3rd respondent being of the belief that the Act had been violated, 3rd respondent had inspected the premises and seized the offending articles, there is no recording of such belief in writing.
16. This court therefore holds that there is no warrant which is required to be obtained by the officers named under Section 15 of the Act, in all cases or situations, to exercise their powers subject to the observations made herein above. In the above circumstance, the search conducted by 3rd respondent though might have been proper if reasons had been recorded for such an emergency, since those reasons are not recorded in the present case, no such search could have been conducted without a warrant, consequently the seizaure is bad in law.
Point No. 2:
17. Mr.Ajoy Patil learned counsel for Petitioner has submitted that the procedure for conducting a search and preparing of the panchanama has not been followed in that the independent witnesses as required under Cr.P.C. were not present as can be seen from the panchnama, which has not been signed by any such independent witnesssses. The said panchanama has been signed only by Deputy Controller. Therefore, there is violation of the provisions of Cr.P.C. Per contra, the learned AGA has submited that since this is a special enactment, strict rules under Cr. P.C would not apply, it is sometimes difficult to find independent witnesses, therefore the signatures made by the officers should be taken as due compliance of the requirements under the Act.
18. Search and seizure are important weapons in the hands of the officers concerned therefore it is but required that such powers should be exercised with due circumspection and discretion and the same should not result in harassment of innocent persons. When a search is made with a warrant the procedure required to be followed is stated in the Cr. P.C, which need to be so followed. Even when a search is made without a search warrant, it would be treated that such a search or consequent seizure is conducted/made by following the safeguards enshrined under the Cr. P.C.
19. As observed above the officers conducting a search are required to comply with the procedural requirements of Cr.P.C, some of them though not exhaustive are enumerated hereunder:
19.1. A lady officer is required to be present since most such premises may have ladies working 19.2. The search and seizure should normally be done after sunrise and before sunset. However, if it is conducted after sunset and before sunrise, the grounds as to why it was felt necessary to take such action should be recorded and copy of the grounds so recorded must be sent within 72 Hours to the immediate official superior.
19.3. The officers before starting the search are required to disclose their identity by showing their identity cards to the owner of the premises.
19.4. Search should be made in the presence of two independent and respected witnesses of the locality.
19.5. A Panchnama / Mahazar, should be prepared on the spot which contains the proceedings of the search. A list of all goods, documents recovered and seized/detained should be prepared and annexed to the Panchnama/Mahazar. This document and the list of things seized needs is to be signed by the witnesses and the owner of the premises before whom the search is conducted and also by the officers who are carrying out the said search.
19.6. After examination of the seized goods or things by the authority, the original of the samples to be sent for any technical/forensic examination within a period of 72 hours thereof.
19.7. A search and seizure report to be prepared containing the details of the conduct of the search and outcome, containing the names of the officers and other persons including the panchas and witnesses who participated in the search.
19.8. A copy of the Panchnama / Mahazar prepared to be furnished to the person in- charge/owner of the premises being searched under acknowledgement.
20. This Court is in agreement with the submissions made by Sri.Ajoy Patil, learned counsel, the provisions relating to Cr.P.C. as regards inspection, seizure have not been followed by the Authority concerned, in the absence thereof the veracity of the search cannot be believed, the procedural requirements laid down in the Cr.P.C provides a safeguard against abuse of power vested in the authorities, it is therefore required that these procedural safeguards are followed strictly.
Point No.3:
21. As discussed hereinabove, it is required of the Officers named under Section 15 of the Act to conduct a search after obtaining a warrant, only in the event of emergency and where such warrant cannot be obtained in the required time, said named officers under Section 15 of the Act could conduct a search without a warrant.
22. As discussed hereinabove, irrespective of whether a warrant is obtained or not, when a search is carried out, the procedural requirements as aforesaid have to be followed. In the event of said procedure not being followed and or if the search is conducted in violation of the prescribed laws, then the search would be no search at all, it would be illegal and any item seized during such a search would be inadmissible as evidence. The courts would have to disregard any information, documents, things and or goods seized during such a search holding that illegal search carried out has vitiated everything. In such cases, action cannot be allowed to be taken by the Authorities pursuant to an illegal search or seizure. In view of the procedural requirements not having been followed the panchnama/mahazar prepared in the present case cannot be considered by this court.
Point No.4:
23. Mr. Ajoy Kumar Patil, the Learned counsel for the Petitioner contends that the requirements under Rules 6, 7, 8, 11 and 24 of the Rules of 2011 are those which have to be complied with by a Manufacturer or a Packer, the Petitioner being a retailer has no control over such manufacture or packaging, hence the requirements that are to be printed in terms of Rules 6, 7, 8, 11 and 24 of the Rules of 2011 cannot be imposed upon the petitioner.
24. He further submits that the goods mentioned in the mahazar are food items therefore they are excluded from the Act by virtue of Explanation iii to Rule 6 (1) (a), hence there is no requirement for the petitioner to follow the packaging requirements under the Rules.
25. The learned AGA in reply to this argument contends that Rule 18 of the Rules 2011, would make the wholeseller/retailer responsible for any violation of the Act and/or Rules framed thereunder. She further submits that Explanation iii to Rule 6 (1) (a) is restricted to Rule 6 (1) (a) and does not extend to the entire Rules.
26. A perusal of Explanation (iii) to Rule 6(1)(a) of the Rules indicates that this is only an explanation to Rule 6(1)(a) and therefore, it is only as regards the items mentioned in Rule 6(1)(a) that there is an exemption in terms of explanation (iii). This explanation cannot be said to extend to entire Rule 6 of the Rules or to any other Rule. Compliances with other provisions of Rule 6 are nevertheless required to be made. Therefore, the plea of the petitioner that the entire Rule 6 would not apply to the petitioner is completely misplaced.
27. The exemption in explanation (iii) is as regards the details mentioned in Rule 6(1)(a) of the Rules. The requirements of Rule 6(1)(a) are substituted by those required and specified under the Food, Safety and Standards Act, 2000, which are required to be depicted in such packages. The explanation only substituting the compliances to be made, does not take away the compliances to be made under the Food, Safety and Standards Act, 2000. The petitioner being unable to satisfy that such compliances are made is therefore in violation thereof and the explanation (iii) to Rule 6(1)(a) does not come to the rescue of the petitioner.
28. A retailer in terms of Rule 18 of the Rules 2011, is obligated and/or prohibited from distributing, delivering, displaying or storing any commodity in the packed form unless the package complies with in all respects under the provisions of the Act and Rules. A wholesaler/retailer is required to verify that any product sold by such wholesaler/retailer complies with the requirement of the Act or Rules before offering them for sale to the general consumers. If the goods being sold are not in compliance, the retailer is enjoined not to offer them for sale. The retailer by offering the products for sale is virtually certifying that the products being sold are in compliance of the Act and Rules.
29. The argument of Sri.Ajoy Patil, learned counsel that the compliances of Rule 6, 7, 11 and 24 of the Rules of 2011 are to be made by a manufacturer or a packer and not by a whaleseller or retailer cannot be expected in view of Rule 18, which categorically requires any retailer or wholesaler to offer for sale, goods which are in compliance with the Act and Rules. The fact that such retailer/wholesaler offers for sale, such goods and it is from his hands that the product goes to the unsuspected consumer makes such retailer/wholesaler liable for any violation of the Act and Rules. A retailer/wholesaler like the petitioner cannot take shelter and or escape the requirements of law by merely contending that such retailer is only offering the product for sale and since the retailer is not in-charge of the manufacturing or packing process, retailer cannot be made liable. The obligation is on the retailer to see to it that before the retailer offers any product for sale, requirements of the Act and Rules of 2011 have been followed.
30. Admittedly, this has not been done by the petitioner. Therefore, there is violation of those rules by the petitioner.
31. Though the petitioner has violated Rules 6, 7, 8, 9 and 11 of the Rules, 2011, the impugned show cause notice at Annexure-C does not state the manner of violation by the petitioner by drawing reference to Rule 18 which is the only rule which would make the petitioner, who is a retailer, responsible for those violations under the Act.
32. A retailer therefore would be liable if the retailer were to offer for sale any product which violates any of the Rules even though the retainer is not directly in control of the compliance thereof and it is a manufacturer/pakager who is in control thereof by virtue of Rule 18 of the Rules. The retailer is, therefore, required to examine if the products sold by him/her/it, complies with the rules or not before offering the same for sale. The retailer cannot escape liability by merely stating that the retailer is not in control of the manufacture or packaging of the product.
Point No.5:
33. In the present case, the show cause notice does not detail as to what is the violation in particular of any of the Rules. Merely mentioning that there is violation of Rule 6 or Rule 7 or Rule 8 is not sufficient. The non-compliance as above attracting penal provisions, there is a requirement for the Authorities under the Act to categorically specify, in sufficient detail, the violation made by the petitioner or similarly situated persons/organizations. If the violation is not sufficiently detailed, the defaulter would not be in a position to reply to the same nor would a Court of law be in a position to assess such violation.
34. Apart therefrom, as aforestated since any violation has penal consequences, the show cause notice issued should categorically specify, in sufficient detail, the violations committed by the person against whom proceedings are initiated. The officers under Section 15 of the Act have a duty and obligation towards the above. In the event of the violations alleged are not sufficiently detailed, show cause notice and or the charge would be liable to be dismissed for being vague and or insufficient.
35. The show cause notice issued at Annexure – C would have penal consequences since in terms of the Act. Any violation is punishable under Section 36 of the Act. Section 36 of the Act, is hereunder reproduced for easy reference.
“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.
36. An examination of Section 36 of the Act, would disclose that apart from fine, the violator could also be sentenced to imprisonment for a term which may extend to one year or with both. Having noticed that there are penal consequences for violation or any action including any notice issued by the respondents, the respondents should comply strictly with the applicable law. When admittedly, the petitioner is not a manufacturer or packer but is only a retailer, Rules 6, 7, 8, 9, 11 and 24 would not be applicable strictly to the petitioner since the petitioner has no control over such manufacturer or packaging, it is only by virtue of Rule 18 that an obligation has been imposed on the petitioner to verify if due compliance of the Rules by the manufacturer/packer is done, before offering such products for sale. Petitioner not having been charged as such under Rule 18, no further proceedings can be continued against the petitioner for the offences under Rules 6, 7, 8, 9, 11 and 24. The authorities under the Act are required to be careful to follow all applicable Rules and procedures under the Act.
37. In view thereof, this Court is unable to accept the submission made by the learned AGA to read in Rule 18 as part of the show cause notice, so as to make the petitioner liable for offences under Rules 6, 7, 8, 9, 11 and 24.
38. The show cause notice issued by 3rd respondent to the petitioner is as bland as bland can be. There are no details whatsoever, let alone material details mentioned in the same. It is but required that when a show cause notice is issued, the noticee is to be put on notice as regards what is the complaint aginst him and what the noticee is required to answer to overcome the allegations made against him. If these material facts are not stated in the notice, the notice does not qualify to be a notice and infact is not a notice at all. The Hon’ble Apex Court, as also this Court have time and again held in the above terms. Reference can be made to the following decisions:
38.1. Gorkha Security Services –v- Govt. (NCT of Delhi) [(2014) 9 SCC 105]:
“21. With the aforesaid statement of law, now let us proceed with the present case scenario.
22) It would be necessary to take note of the relevant portion of clause 27 of the NIT under which umbrage is taken by the respondents to justify their action, and even appealed to the High Court. Clause 27 (a) (c) (a) reads as under:
“a.... (sic) In case the contractor fails to commence/ execute the work as stipulated in the agreement or unsatisfactory performance or does not meet the statutory requirements of the contract, Department reserves the right to impose the penalty as detailed below:-
(i) 20% of cost of order/ agreement per week, upto two weeks' delays.
(ii) After two weeks delay Principal Employer reserves the right to cancel the contract and withhold the agreement and get this job carried out preferably from other contractor(s) registered with DGR and then from open market or with other agencies if DGR registered agencies are not in a position to provide such Contractor(s). The difference if any will be recovered from the defaulter contractor and also shall be blacklisted for a period of 4 years from participating in such type of tender and his earnest money/ security deposit may also be forfeited, if so warranted.”
38.2. Oryx Fisheries Private Limited –v- Union of India [(2010) 13 SCC 427]:
28. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge- sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding become an idle ceremony.”
29. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi- judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. In the instant case from the underlined portion of the show cause notice it is clear that the third respondent has demonstrated a totally close mind at the stage of show cause notice itself. Such a close mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid rule has been framed in exercise of the power conferred under Section 33 of The Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature.
39. The Authorities have proceeded in show cause notice as if the petitioner guilty of the offence. Hence, even on this ground, show cause notice is liable to be struck down.
40. The prayer seeking for issuance of a writ of mandamus or any other appropriate writ directing the respondents not to interfere with the petitioner from carrying on retail activity of sale and packaged commodities at the Retail outlets or stocking of the goods at the distribution centers maintained by the petitioner cannot be granted. The authorities concerned have all right and powers to act in terms of the Act and Rules of 2011 to ensure that retailers like petitioner and others comply with those provisions. The officers detailed under Section 15 conducting a search on the basis of reasonable ground cannot be called as interference with carrying on the business activity by the petitioner, as long as all the procedural safeguards are followed.
41. Accordingly, the writ petition is partly allowed. The impugned show cause notice dated 22.08.2012 issued by the 4th respondent under Section 15 of the Act produced at Annexure – C is hereby quashed.
42. Sri. Ajoy Kumar Patil, learned counsel for the petitioner submits that in furtherance of order of this Court on 31.08.2012, the petitioner had furnished a bank guarantee to 2nd respondent for a sum of Rs.15,00,000/- and said bank guarantee is extended from time to time. In view of the quashing of the show cause notice dated 22.08.2012 the bank guarantee may be released.
43. The submission made by learned counsel for the petitioner is accepted as no purpose will be served by keeping the bank guarantee alive. The bank guarantee is directed to be released to the petitioner and there is no need for the Petitioner to extend the said bank guarantee further.
MH/ln Sd/- JUDGE