M/S. GODREJ SARA LEE LTD. v. STATE OF KERALA & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **TUESDAY, THE 3RD DAY OF JANUARY 2012/13TH POUSHA 1933** ## **CRMC.No. 1357 of 2005 ( )** ## **=====================** ## **ST.1237/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOLLAM** **.........** ## **PETITIONER/ACCUSED NO.A2** ## **=========================** **M/S. GODREJ SARA LEE LTD., PIROJSHANAGAR EASTERN EXPRESS HIGHWAY VIKHROLI (E), MUMBAI - 400 079.** **BY ADV. SRI.R.T.PRADEEP, SRI.V.VIJULAL, SRI.S.GIRISH.** ## **RESPONDENTS/COMPLAINANT & ACCOUNT NO.A1 ==========================================** - **1 THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION HIGH COURT OF KERALA, ERNAKULAM.** - **2 THE ASSISTANT CONROLLER, LEGAL METROLOGY (F.S) KADAPPAKADA, KOLLAM.** - **3 M/S. M & M ASSOCIATES, KADAPPAKADA, KOLLAM - 691 008.** ## **R1 & R2 BY PUBLIC PROSECUTOR MR.REJI JOSEPH.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-01-2012 , ALONG WITH CRMC NO.3982 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **rs** ## **CRMC.No. 1357 of 2005** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A I COPY OF THE SEIZURE MAHAZAR DATED 08/01/2003. ANNEXURE A II COPY OF THE SHOW CAUSE NOTICE DATED 15/02/2003. ANNEXURE A III COPY OF THE GOOD KNIGHT JUMBO COIL AS TRADE MARK ON 12/10/1999.** **ANNEXURE A IV COPY OF THE EXPLANATION OF THE PETITIONER DATED NIL. ANNEXURE A V COPY OF THE ORDER DATED 13/10/2003 GRANTING SANCTION OF PROSECUTION.** **ANNEXURE A VI COPY OF THE COMPLAINT DATED 12/10/2004 FILED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II, KOLLAM.** ## **RESPONDENT'S ANNEXURES:- NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **rs** **N.K.BALAKRISHNAN, J. -------------------------------Crl.M.C. Nos.1357 & 3982 of 2005 ----------------------------------------------Dated this the 3[rd] day of January 2012** ## **O R D E R** Petitioners are the accused in S.T.No.1237/2003 on the file of J.F.C.M.-II, Kollam. The complaint was lodged against them by the 2[nd] respondent alleging commission of offences under Sec.39(4) of the Standards of Weights and Measures Act, 1976, Sec.33 of the Standards of Weights and Measures (Enforcement) Act, 1985 and Rules 4, 6, 12(6), 13(5) and 23 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and punishable under Sec.63 and 67 of the 1976 Act and Sec.51 of the Enforcement Act, 1985 and Rule 39 of the said Rules, 1977. The learned Magistrate took cognizance under Rules 12(6) and 13(5) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 r/w Sec.39(4) of the Standards of Weights and Measures Act, 1976. 2. The gist of the allegation is that, Good Knight Crl.M.C. Nos.1357 & 3982 of 2005 -: 2 :- mosquito coil package of 10 coils with the word 'Jumbo' on the package and Good Knight super mats in packaged form containing 36 mats in one package were kept for sale by the first accused which according to the complainant was in violation of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. According to the prosecution, Rule 12(6) of the Rules mentioned above prohibits the use of the words such as 'Jumbo' which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package. The other violation complained of is under Rule 13(5) which as per the VI[th] Schedule attached to it deal with the commodity intended to be sold. As per the Rule it shall be packaged in the manner specified in VI[th] schedule which provides that the number exceeding ten but does not exceed one hundred shall be the multiple of five. Here, the quantity of mat contained in the package was 36. It should have been 35 or 40, the complainant contends. 3. Sri.R.T.Pradeep, the learned counsel for the Crl.M.C. Nos.1357 & 3982 of 2005 -: 3 :- petitioners would submit that so far as the user of the word 'Jumbo' which according to the prosecution attracts violation of Rule 12(6) was not actually intended to convey or indicate the quantity or quality of the product whereas it is only the name of the product itself which was registered under the Trade Mark Act as 'Good Knight Jumbo Coil'. Hence, according to the learned counsel, it has nothing to do with the quantity or quality of the material/product. Learned counsel further submits that since the registration was effected under the provisions of the Trade Mark Act, the trade mark so given cannot be rendered ineffective by the provisions contained in the Rule mentioned above. 4. The main other limb of the argument advanced by the learned counsel is that by the subsequent amendment, the VI[th] schedule to Rule 13(5) has been deleted and as such, one ground projected by the complainant, that the packet of Good Knight mat contained 36 as against the multiple of five cannot be sustained by the prosecution. The learned counsel Sri.R.T.Pradeep has relied upon the decision of the Apex Crl.M.C. Nos.1357 & 3982 of 2005 -: 4 :- ## Court in **Ravinder Singh** v. **State of Himachal Pradesh** ## reported in [(2009) 14 SCC 201] where it was held : “It is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial. This position is clear even on a bare reading of Article 20(1) of the Constitution of India. The said provision reads as under : - “20. Protection in respect of conviction for offences-(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” Wills in his Constitutional Law of the United States (at p.516) brought out a lucid classification of the penal law which are ex post facto : - (i)when they make criminal an act which was innocent when done; - (ii)when they make a crime greater than it was when it was committed; - (iii)when they make the punishment greater than the punishment was at the time the act was committed; - (iv)whey they change the rule of evidence as to deprive a defendant of a substantive right; and - (v)when they make retrospective qualifications for an offence which are out of a proper exercise of the police Crl.M.C. Nos.1357 & 3982 of 2005 ## -: 5 :- power. Under Article 20(1) of the Constitution what is prohibited is the conviction and sentence in criminal proceedings under ex post facto law.” ## The decision in **Superintendent, Narcotic Control Bureau** ## v. **Parash Singh** reported in [(2008) 13 SCC 499] has also been cited by the learned counsel, where it was held : “In State v. Gian Singh [(1999) 9 SCC 312] it was held with reference to Article 20(1) of the Constitution that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation downgrades the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.” The entire schedule has been deleted since the legislature thought that it was an unnecessary burden imposed on the manufacturer/vendor. The learned counsel would also submit that practically there is nothing misleading in packing 36 mats in one package as against 35. It is not intended to lure Crl.M.C. Nos.1357 & 3982 of 2005 -: 6 :- or mislead any customer. Therefore, that inconsequent excess number can in no way be termed as violation of Rule and that was the reason why the legislature has thought it fit to delete that schedule. Since the deletion of that schedule is beneficial to the accused and when the sale of 36 mats in a packet instead of 35 does not adversely affect the customer/consumer, there would be no justification to deny the benefit of that subsequent amendment to the manufacturer/vendor. 5. Then the other violation complained of is Rule12 (6). Clause (ii) of Rule 12(6) has been completely deleted as per the subsequent amendment which was brought into force with effect from 13.1.2007. Therefore, on and after 13.1.2007, the user of the word 'Jumbo' can attract no offence. The learned counsel for the petitioners would submit that here also apart from the fact that Jumbo is the trade name registered by the authorities under the Trade Mark Act, that word has nothing to do with the quantity or quality of the commodities sold and as such, there would be nothing Crl.M.C. Nos.1357 & 3982 of 2005 **==> picture [30 x 10] intentionally omitted <==** unreasonable to extent the benefit of amendment to the petitioners. Relying on the decisions cited supra, the learned counsel has submitted that the benefit of the amendment has to be given to the petitioners. As the subsequent amendment has downgraded or toned down the gravity of the offence that legislative benevolence has to be extended to the petitioners. As such the petitions are to be allowed. Further proceedings in S.T.Case No.1237/2003 of J.F.C.M.-II, Kollam will stand quashed. In the result, these two Crl.M.Cs are allowed. **N.K.BALAKRISHNAN, JUDGE.** Jvt