M/S Jayalakshmi Silks Pvt Ltd. v. Assistant Controller, Flying Squad, Legal Metrology, Thrissur

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` TUESDAY,THE 13[TH] DAY OF DECEMBER 2022/22ND AGRAHAYANA, 1944 CRL.MC NO. 7793 OF 2022 ``` ``` CC 185/2019 OF CHIEF JUDICIAL MAGISTRATE ,THRISSUR ``` ## **`PETITIONER/S:`** - `1 M/S JAYALAKSHMI SILKS PVT LTD., 19/86 (1-7), POOTHOLE ROAD,THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR, NARAYANA KAMMATH, S/O LATE NARASIMHA KAMMATH, XL//7171,T.D.ROAD KOCHI 35, PIN - 680004` - `2 NARAYANA KAMMATH, AGED 71 YEARS, S/O LATE R. NARASIMHA KAMMATH,AGED 71 YEARS,XL/7171, T.D.ROAD, KOCHI 35, DIECTOR M/S JAYALAKSHMI SILKS PVT. LTD, 19/86 (1-7), POOTHOLE ROAD, THRISSUR, PIN - 680002` - `3 MR.N.GOVINDAN, AGED 68 YEARS S/O LATE NARASIMHA KAMMATH, X-L/7171, T.D. ROAD, KOCHI 35, M/S JAYALAKSHMI SILKS PVTLTD,19/86 (17),POOTHOLE ROAD, THRISSUR, PIN - 680004` - `4 MR.N.SATHEESH, AGED 62 YEARS S/O LATE NARASIMHA KAMMATH, X-L/7171, T.D. ROAD, KOCHI 35, M/S JAYALAKSHMI SILKS PVILTD,19/86 (17),POOTHOLE ROAD, THRISSUR, PIN - 680004` - `5 `MRS. N. VINAYA, AGED 64 YEARS ,W/O NARAYANA KAMMATH, XL/ 7171, T.D. ROAD, KOCHI 35, M/S JAYALAKSHMI SILKS PVILTD,19/86 (17),POOTHOLE ROAD, THRISSUR, PIN - 680004 BY ADVS. J.ABHILASH RAHUL THOMAS JOSEPH VIMAL BHASKAR` ## **`RESPONDENT:`** ``` ASSISTANT CONTROLLER,FLYING SQUAD,LEGAL METROLOGY ,THRISSUR, FLYING SQUAD,LEGAL METROLOGY, THRISSUR,R REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA .ERNAKULAM, PIN - 682031 SRI. GRAVIOUS KURIAKOSE, ADGP ADV SREEJA V - SR PP ``` ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:`** Crl.M.C.No.7793/2022 : 2 : ## ORDER The petitioners are accused Nos.1 to 5 in C.C.No.185/2019 on the file of the Chief Judicial Magistrate's Court, Thrissur. 2. The aforesaid Calendar Case was registered based on a private complaint submitted by the respondent herein, the Assistant Controller, Flying Squad, Legal Metrology, Thrissur, alleging violation of the provisions contained in Section 18(1) read with Section 36(1) of the Legal Metrology Act, 2009 (hereinafter referred to as the ‘Act’) and also the violation of Rule 4, R18(1) of the Legal Metrology (Packed Commodities) Rules, 2011 (hereinafter referred to as the ‘Rules’). The 1[st] petitioner is a private limited company engaged in the sales of textiles, and the petitioners 2 to 5 are its directors. Annexure A1 is the complaint submitted by the respondent, and the case against the petitioners and the other accused are as follows: 3. On 27.12.2018 at 1.00 p.m., the respondent/ complainant, along with his team, inspected the trade premises of the 1[st] petitioner. During the course of their inspection, it was Crl.M.C.No.7793/2022 : 3 : found that some of the packages having the following markings such as ‘Sweet Night Lounge Wear, G-21, Om Gopal Industry, Garage Galli, Opposite Pacific Plaza, Dadar (West), Mumbai400028, kept for sale were without the mandatory declarations such as month and year of manufacture of the commodity, retail sale price (MRP) and Customer care telephone number. According to the complainant, consequent to the aforesaid violations, the offences under Section 18(1) of the Act and Rules 4 and 18(1) of the Rules are attracted. In such circumstances, the petitioners and other accused are punishable under section 36(1) of the Act. The aforesaid complaint was submitted with a petition to condone the delay of 86 days in filing the same. The learned Magistrate has taken cognizance of the said complaint for the offences punishable under Sections 18(1) and 36(1) of the Legal Metrology Act, 2009 and Rules 4 and 18(1) of the Legal Metrology (Packed Commodities)Rules, 2011. This Crl.M.C. was filed in such circumstances to quash all further proceedings against the petitioners. 4. Heard Sri. Abhilash, the learned counsel for the petitioners and Smt. Sreeja V., the learned Senior Public Crl.M.C.No.7793/2022 : 4 : Prosecutor for the respondent. 5. According to the learned counsel for the petitioner, the subject matter of the complaint was manufactured by the 8[th] accused and under no circumstances, the petitioners can be held liable for the offences. It is pointed out that the prosecution does not have a case that the petitioners have sold or offered the sale of any product, any pre-packaged commodity in non-standard quantities or numbers and against the declarations of particulars made in respect of the product. Therefore, it is pointed out that the offences under Section 18(1) and 36(1) of the Act, 2009 would not be attracted. According to the learned counsel, the only allegation against the petitioners is that the product did not contain necessary declarations as contained in Rule 6 of Rule 2011 and therefore Rule 4 of 2011 is violated. He further points out that, as per Rule 4 referred to above, the responsibility to make the declaration is exclusively on the manufacturer thereof. Under no circumstances can a retailer be held responsible for violation of Section 36 for not making any declaration as above. Therefore, the petitioners cannot be prosecuted for any of the offences alleged against them, and the prayer for quashing all the Crl.M.C.No.7793/2022 : 5 : proceedings is sought in such circumstances. The learned counsel for the petitioner also relies on the decision rendered by the Karnataka High Court in Leo Crasta and another v. State of Karnataka and another [2019 KHC 2535:2019 Crl. L.J. 908]. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that since Section 18 of the Act 2009 contemplates a prohibition of the sale of pre-packaged commodities without declarations as may be prescribed, the offences would be attracted against the petitioners, who are retailers. It is also pointed out that, since the petitioners have admittedly offered the article for sale without declarations, which were mandatory requirements, as contemplated under Rule 4 read with Rule 6 of Rule 2011, they are liable to be prosecuted for the offences. The dismissal of the Crl.M.C. was sought by the learned Public Prosecutor in such circumstances. 8. I have carefully gone through the contents of the complaint and also the relevant statutory provisions in this regard. The main allegations against the petitioners are in respect of violations of Sections 18(1) and 36(1) of the Act, 2009 read with Crl.M.C.No.7793/2022 : 6 : ## Rule 4, Rule 6 and Rule 18(1) of Rules 2011. Section 18(1) reads as follows: “ -- 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.” ## Section 36(1) reads as follows” “ 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 prepackaged 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.” 9. On going through Section 18(1), it can be seen that, what is contemplated is the prohibition of manufacturing, packing, selling, importing, distributing, delivering, offering and exposing or possessing for sale any pre-packaged commodity in non-standard quantities or numbers and without declaration and particulars as may be prescribed. Crl.M.C.No.7793/2022 : 7 : Therefore, the crucial emphasis is on selling pre-packaged commodities in non-standard quantities and numbers or without declaration. In Section 36, the penalty for the sale of non-standard packages is contemplated. As per the section, the penalty is imposed if a person 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 the Act. Therefore, the penalty contemplated under Section 36 is for sale and other activities, manufacture, packing, sales, and other similar acts of pre-packaged commodity that do not conform to the declarations on the packaging as provided in the Act. In other words, the sale and other acts without conforming to the declarations on the package alone are made punishable under Section 36 of the Act. Crl.M.C.No.7793/2022 : 8 : 10. In this case, the crucial aspect to be noticed from the reading of Annexure A1 complaint is that the main allegation is that the pre-packaged commodity did not contain the necessary declarations as to the month and year of the manufacture, retail sale price and customer care telephone number. Therefore, as the penalty contemplated under Section 36 is confined to the sale and other activities contemplated therein of a packaged commodity without conforming to the declarations contained therein, it cannot be concluded that the absence of declaration as such would come within the ambit of the aforesaid provision. In this case, there is no allegation in the complaint that the petitioner sold or offered for sale a pre-packaged commodity in nonstandard quantities or numbers or the product was not conforming to the declaration made on the product. Therefore, I find some force in the contention put forward by the learned counsel for the petitioner in this regard. It is true that Section 18 also refers to a lack of declarations and particulars on the pre-packaged commodity which was Crl.M.C.No.7793/2022 : 9 : offered for sale. However, Section 36, which is the provision dealing with the penalty is with respect to the sale and other activities relating to a pre-packaged commodity without conforming to the declarations made on the package. In this case, the allegation itself is that the declaration as to certain aspects of the product was not made, and there is no allegation that the product offered for sale did not conform to the declarations made on the package. 11. The aforesaid question was considered by the Karnataka High Court in the decision of Leo Crasta’s case cited supra. In the said case, after examining the relevant statutory provisions in detail, it was observed by the Karnataka High Court as follows: “8. On a meaningful understanding of this provision, it is clear that the responsibility is on the persons, who pack the commodity with reference to the articles inside the said pre-packaged packages. If the commodity inside the said package does not conform to the declaration on the package, as provided in the Act, he shall be punished with fine and so on. Therefore, according to S.18, the packaged commodity should conform to the declaration made on the packages and if there is any difference, then only S.36 is attracted which is punishable under S.36(1) of the Act. Therefore, it clearly goes to show that first there must be declaration on the pre-packed packages according to the Rules, that is with regard to the manufacturer’s name, address, date of Crl.M.C.No.7793/2022 : 10 : manufacture, packed month and year, maximum retail price and customer care telephone number and with regard to the contents the standard quantity of the commodity and number of the articles inside the package. So, if there is any violation with regard to the weight, standard quality and quantity and the number inside the package as against the declaration made, then only S.18(1) is attracted, which is punishable under S.36(1) of the Act. 9. In order to understand the above said two provisions, it is just and necessary to make some illustrations; (i) If only the declaration is made explaining the manufacturer’s address, date of manufacture/packed month and year, maximum retail price and customer care telephone number and also declaration with regard to the size and standard quantity, but if it is found that, though the declaration is properly made, but there is difference with regard to size, weight, number and standard quality, then not only the rule that is violate, but also S.18(1) is violated. (ii) Illustration – If a declaration is made without mentioning the details/ or if no declaration is made, with reference to the manufacturer’s address, date of manufacture/packed month and year, maximum retail price and customer care telephone number, declared size, quantity and quality but on opening the package, if it is found that there is any difference with regard to the standard quantity and number, then not only R.6 is violated, but also S.18(1) is violated which is punishable under S.36(1 of the Act. (iii) Illustration – If merely no declaration is made by mentioning the manufacturer’s address, date of manufacture/packed month and year, maximum retail price and customer care telephone number and declared size, number and standard, but the quantity, number, size, weight and the quality of the articles which ought to have been inside the pre-packed packages is found to be perfect and correct, then the mere non-declaration on the prepaid packages of anyone of the above said declarations, then it only attracts R.6 of the Rules, but there is no violation of S.18(1) which calls for punishment under S.36(1) of the Act. 10. Therefore, it is made clear that for violation of R.6 in non-mentioning of the manufacturer’s address, date of manufacture/packed month and year, maximum Crl.M.C.No.7793/2022 : 11 : retail price, customer care telephone number and declared size and quantity and number, there should be allegation in the complaint that on the opening of the pre-packaged packages, the Legal Metrology Officer found any difference with regard to the quantity, quality, weight, size and number of the articles inside the package. If no such allegations are available, neither S.18(1) can be invoked nor S.36(1) can be pressed into service.” 12. When coming to the question of the sale of prepackaged commodities without the declarations, the relevant provision to be looked into is Rule 4 of the Legal Metrology (Packaged Commodities) Rules, 2011. The said provision reads as follows: “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.” 13. A careful reading of the said rule indicates that the responsibility to make such a declaration is specifically imposed upon the manufacturer. The explanation of the said provision makes the said aspect very clear. In the Crl.M.C.No.7793/2022 : 12 : explanation, it is very clearly mentioned that it is the duty of the manufacturer to ensure that all the packages leaving the premises of the manufacturer for their destination shall have the declaration of retail sale as required in this rule. Rule 6 of Rule 2011 contemplates the details of the declarations to be made in the package, and when the said provision is considered along with Rule 4, it is very much evident that the liability to make the declaration is upon the manufacturer. Of course, Rule 18(1) of the Rules, 2011 indeed provides that no wholesale dealer and retail dealer or manufacturer shall transmit any commodity in the packaged form unless the package complies with the provisions of the Act and the rules. However, even if the said provision is violated, going by specific stipulations contained in Section 36 of the Act, 2009, it cannot be a subject matter for prosecution under the offence under Section 36. 14. As mentioned above, Section 36 deals only with the sale of packaged commodity in a manner that does not conform to the declarations on the package and does not Crl.M.C.No.7793/2022 : 13 : deal with the sale of pre-packaged commodity without declaration. In this case, going by the specific allegations in the complaint, it can be seen that the violations mentioned therein and the offences alleged are under Section 18(1) and 36(1) of the Act, 2009. In the light of the discussions made above, I have no hesitation to hold that the aforesaid provisions are not attracted. In such circumstances, I do not find any legally acceptable grounds to proceed against the petitioners herein for the offences under Sections 18(1) and 36(1) of the Act. In the result, this Crl.M.C. is allowed and Annexure-A1 private complaint submitted by the respondent herein and all further proceedings pursuant to the same, including the proceedings in C.C. No.185/2019 on the files of the Chief Judicial Magistrate’s Court, Thrissur to the extent it is against the petitioners herein are hereby quashed. ## Sd/- ZIYAD RAHMAN A.A. JUDGE ncd Crl.M.C.No.7793/2022 : 14 : ## **`APPENDIX OF CRL.MC 7793/2022`** ``` PETITIONER ANNEXURES Annexure A1 ``` ``` TRUE COPY OF THE COMPLAINANT PRESENTED BY THE RESPONDENT BEFORE HON'BLE CHIEF JUDICIAL MAGISTRATE NUMBERED AS CC 185/2019 DATED 20.08.2019 ```