apl609.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Application [APL] No. 609 of 2015
1. M/s. Yum Restaurants (India) Pvt.
Ltd. (KFC),
12th, 14th & 15th Floors,
Tower D, Global Business
Park, M.G. Road,
Gurgaon - 122, 002 [Haryana].
2. Mr. Niren Chaudhary,
Managing Director,
Yum Restaurants [India]
Pvt. Ltd.,
Tower - B-1, Flat 501,
Word Spa West, Sector 30,
Gurgaon-122 001 [Haryana].
3. Mr. Rajeev Minocha,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
E-80, Preet Vihar,
Vikas Marg,
New Delhi-110 092.
4. Mr. Ankush Tuli,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
H. No. 302, Tower-12,
The Close South Nirvana Country,
Gurgaon-122 002 [Haryana].
5. Mr. Unnat Subhash Varma,
Director,
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Yum Restaurants [India]
Pvt. Ltd.,
M 14/31, DLF City Phase-II,
Gurgaon-122 002
Haryana.
6. Ms. Sanchita Singh,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
G-502, Central Park-1,
Sector-42, Sector Road,
Gurgaon-122 002.
7. Ms. Priyanka Sinha,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
GH-7/404, Orchid Garden,
Sector 54, Sun City,
Gurgaon-122 001
Haryana.
8. Mr. Gaurav Tewari,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
Tower A-1, Flat 701,
The World Spa Sector-31,
Gurgaon-122 001,
Haryana.
9. Mr. Hitesh Kumar Arora,
Director,
Yum Restaurants [India]
Pvt. Ltd.,
House No.9, Block E-17
Shivalik, Sector-61,
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Noida-201 301,
Uttar Pradesh.
10. Mr. Vinit Jacob,
Restaurant General Manager,
KFC Eternity Mall,
Variety Square,
Sitabuldi, Nagpur.
11. Shri Vijayasukumar Chingacham
Veettil,
Resident of 7610,
Ashleywood Drive,
Louis Ville,
Kentucky-40241. ..... Applicants
Versus
The State of Mahrashtra,
at the instance of Shri A.M.
Marwade,
Inspector, Legal Metrology-I,
Nagpur-5, Civil Lines,
Nagpur-01
Maharashtra. ..... Non-applicant
*****
Mr. Rajesh Batra, Adv., with Mr. A. A. Naik, Adv., for the
applicants.
Mr. S. M. Ghodeswar, Additional Public Prosecutor for non-
applicant.
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CORAM : A.S. CHANDURKAR, J.
Date : 17th November, 2017 ORAL JUDGMENT:
01. The applicants have filed this Criminal Application under Section 482 of the Code of Criminal Procedure Code, 1973 as they are aggrieved by the order dated 10th July, 2015 issuing Process in the complaint filed under the provisions of Legal Metrology Act, 2009 [for short, "the said Act"].
02. According to the Inspector of Legal Metrology, on 20th January, 2015, an inspection was carried out at the outlet that was being run by applicant no.10 at the chain of restaurants owned by applicant no.1. It was noticed that the restaurant in question was selling various items in non-standard units and bills were also being issued on that basis. According to the Inspector, this was in contravention of Section 11 of the said Act read with Rules 5, 21 (4) and 12 of the Legal Metrology (Packaged Commodities) Rules, 2011 [for short, "the Rules of 2011"]. On that basis, a complaint came to be filed on 10th July, 2015 for the offence punishable under Section 29 of the said Act. The learned Magistrate was pleased to issue Process on 10th July, 2015, as a result of which, the applicants herein were ::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 ::: apl609.15 5 aggrieved.
03. Shri Rajesh Batra, the learned counsel for the applicants, submitted that on a reading of the entire complaint, it was clear that no offence as alleged had been made out. Referring to provisions of Sections 11 and 24 of the said Act, it was submitted that though there was a prohibition of quotation otherwise than in accordance with the standard units of weight, measure or numeration, in view of provisions of Rule 26 (b) of the Rules of 2011, the applicant no.1 was exempted from applying standard measures while selling fast food items. Items sold at the premises were not in the form of pre-packaged commodity as defined by Section 2(l) of the said Act. The learned counsel in this regard placed reliance upon the judgment of the Delhi High Court in AMA Hospitality Pvt. Ltd. Vs. GNCT of Delhi & another [ 2011 (121) DRJ 8]. It was then submitted that a bare perusal of the complaint indicated that there were no averments against applicant nos. 2 to 11 as regards the manner in which they were guilty of the alleged offence. There was a general statement in the complaint that the accused were the Directors of the shop/factory in question. In absence of description of the role played by each of the said applicants resulting in commission of the alleged offence, said Directors could not have been summoned in the said proceedings. For said purpose, ::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 ::: apl609.15 6 reliance was placed on the judgment of this Court dated 4th October, 2017 in Criminal Application [APL] No. 360 of 2011 [Deepak Bajaj & others Vs. State of Mah. & two others]. It was, thus, submitted that the order issuing Process deserves to be set aside.
04. Shri S. M. Ghodeswar, learned Addl. Public Prosecutor, opposed aforesaid submissions. According to him, the applicants have directly approached this Court under Section 482 of the Code instead of first approaching the Sessions Court. It was then submitted that during the course of inspection, it was noticed that various products were not being sold in standard units. Referring to provisions of Sections 11 of the said Act and Rules 21 (4) and 22 of the Maharashtra Legal Metrology (Enforcement) Rules, 2011 [for short, "the Maharashtra Rules"], it was submitted that there was a clear violation thereof. The applicants were not entitled for any exemption as sought to be urged. The units applied by the applicants while selling the food items were not as per standard measures as prescribed by the said Act. The judgment on which reliance was placed was with regard to packaged commodities and its ratio was not applicable to the case in hand. The applicant nos. 2 to 11 being Directors of the Applicant No.1
- Company, they were liable for prosecution. It was, therefore, submitted that no fault could be found with the order passed by the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 ::: apl609.15 7 learned Magistrate issuing process.
05. I have heard the learned counsel for the parties at length and I have also gone through the documents filed on record.
06. Perusal of the Complaint as filed indicates that during the course of inspection on 20th January, 2015, the Inspector, Legal Metrology, found that there was sale of certain items in non-standard units, such as large, regular, medium and mini. The price list was also with regard to non-standard units and the bills were also being issued in non-standard units. There was no Verification Certificate of one scale and there was absence of ten per cent of capacity of the scale accuracy. There was also no display of Verification Certificate. All this resulted in contravention of Section 11 of the said Act read with Rules 5, 12 and 21 (4) of the Rules of 2011. In para 1 of the complaint, the following statement was made:-
"1. The Accused are the Directors of the shop/Factory etc., situated at Eternity mall, Sitabuldi, Nagpur."
07. Section 49 of the said Act deals with offences by Companies. It contemplates a person being nominated to be in charge of and responsible for the conduct of business and in absence of any ::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 ::: apl609.15 8 such nomination, every person who at the time the offence was committed was in charge of and responsible for the conduct of business becomes liable. As noted above, in paragraph 1 of the complaint, the only statement made was that the accused were the Directors of the shop/factory. Besides this, there is no other statement indicating which Director was either nominated under Section 49 (1)
(a) or that in absence of nomination, all the Directors were in charge of the affairs of the Company as contemplated by Section 49 (1) (b) of the said Act and hence liable. In the cause title of the complaint, accused no.11 is shown as Resident General Manager.
08. The question as regards a statutory liability is now settled in view of the law laid down by the Honourable Supreme Court. In absence of any averments as to the manner in which the accused - Directors were responsible for the affairs of the Company, a general statement that the accused were Directors is not sufficient. The averments in that regard are necessary and in absence thereof, the proceedings against them cannot go on. Reference in this regard can be made to the decision of the Hon'ble Supreme Court in Pepsico India Holdings Pvt. Ltd Vs. Food Inspector and another (2011) 1 SCC 176 which has been followed in Deepak Bajaj and others (supra).
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apl609.15 9 As there are no averments whatsoever, in the Complaint with regard to the role played by the Directors, the Complaint against them cannot proceed. The Process issued against accused nos. 2 to 11, therefore, cannot be sustained.
09. In so far as the contention as urged on behalf of the applicants that by virtue of provisions of Rule 26 (b) of the Rules of 2011, the applicant no.1 was exempted from applying standard measures while selling fast food items is concerned, it can be seen that in para 6 of the Complaint, specific averments have been made that the applicant no.1 was selling said items in non-standard units, the price list had been exhibited in non-standard units and bills were being issued in non-standard units. It is further stated that there was no Verification Certificate of one scale and it was not having ten per cent of capacity of scale accuracy. The Verification Certificate was not displayed resulting in contravention of statutory provisions. In this regard, I find that on a reading of the entire complaint, a prima facie case for proceeding against the applicant no.1 on account of breach of statutory provisions has been made out. At this stage, it is not permissible to examine the defence of the accused nor is it permissible to take into account the likelihood of their possible conviction. A roving ::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 ::: apl609.15 10 enquiry cannot be conducted nor can a mini-trial be held. If, on the basis of the averments made in the complaint which are to be taken at their face value, a prima facie case has been made out, the order issuing Process is liable to be maintained. On this count, I am not inclined to go into the correctness or otherwise of the averments made in the complaint at this stage when the impugned order under challenge is one issuing Process. I also do not find that the complaint is liable to be quashed against the Company at this stage. Considering the various violations alleged in the complaint, the decision relied upon in AMA Hospitality Pvt. Ltd (supra) dealing with exemption under Rule 34(d) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 does not assist the case of the applicant no.1. It would always be open for the applicant no.1 to put forth its defence before the trial Court.
10. In view of aforesaid, the following order is passed :-
The proceedings initiated against Applicant Nos. 2 to 11 vide Criminal Case No.15888/2015 are quashed. The proceedings shall continue in so far as Applicant No.1 is concerned. The trial Court shall decide the Complaint against Applicant No.1 in accordance with law and on its own merits.::: Uploaded on - 29/11/2017 ::: Downloaded on - 29/11/2017 23:54:25 :::
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11. At this stage, learned counsel for the applicants seeks continuation of the interim relief for a period of four weeks.
The request is opposed by the learned counsel for the non- applicant.
As the interim relief was operating since 9 th December, 2015, same shall continue to operate for a period of six weeks from today and shall cease to operate automatically thereafter.
Judge
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