Allahabad High Court

Biswa Bangla Marketing Corporation Ltd ... vs State Of U.P. And 2 Others on 29 July, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:127648
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 16538 of 2025
 

 
Applicant :- Biswa Bangla Marketing Corporation Ltd And 7 Others
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Jigyasa Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Atanu Saikia along with Ms. Jigyasa Singh, learned counsel for the applicants as well as Sri S.K. Singh, learned AGA for the State.

2. A statement has been made by learned counsel for the applicants that he has received counter affidavit but he does not suppose to file any rejoinder affidavit as per the instructions received from his client. Both the parties have made a joint statement that the matter be decided at the fresh stage.

3. With the consent of the parties, the application has been decided at the fresh stage.

4. This is an application filed U/s 528 BNSS for setting aside the show cause notice issued by respondent no.3 on 16.01.2024 and impugned notice for deposit/ demand notice dated 28.05.2024 issued by the respondent no.3 and quash the entire proceeding arising out of criminal complaint no. 7547 of 2024 (State vs. Biswa Bangla Marketing Corporation Ltd and Ors) and summons issued by learned ACJM, Gautam Budha Nagar dated 22.10.2024, 06.11.2024, 03.03.2025, U/s 18 (1) & 36 (1) of the Legal Metrology Act, 2009.

5. The case of the applicants is that a show cause notice came to be issued to the opposite party no.3- Inspector Legal Metrology, Gautam Budh Nagar on 16.01.2024 under section 18 (1)/36(1) & 10/26 of the Legal Metrology Act, 2009 read with Rules 6 (1)(10) of the legal Metrology (Packadged Commodities) Rules 2011 with an allegations that various infirmities were found regarding non disclosing the MRP (inclusive all taxes on its product) and non mention of the size of the product. The applicants herein on the receipt of the show cause notice dated 16.01.2024 responded to the same on 09.01.2024 taking the ground that due to certain technical glitch in the website and other reasons which are beyond the control and the comprehension of the applicants, the said discrepancy kept in. The applicants has also send an Email on 09.02.2024 addressed to the opposite party no.3 mentioning that it was an inadvertent error which was soon rectified by the applicants. The opposite party no.3 vide its communication/ notices dated 23.04.2024 had informed the applicant that the offences under the said sections are compoundable under section 48 of the Legal Metrology Act, 2009. The applicants thereafter proceeded to submit an application with a non judicial stamp of Rs. 20/- showing their willingness and agreement for compounding. A communication to the said affect was also made through the Email on 06.05.2024. However according to the applicants they received a notice for deposit/ demand notice dated 28.05.2024 from the third respondent asking the applicants herein to deposit within a week, the penalty of Rs. 3.20/- lac. Thereafter a complaint came to be preferred by the Inspector Legal Metrology Gautam Budha Nagar before the court of ACJM, Gautam Budha Nagar, U.P. which was assigned a number bearing no. 7547 of 2024 alleging violation of Rule 6 (1), 10 of Legal Metrology (Packaged Commodities) Rules, 2011 read with Section 18 (1) and 36 (1) of the Legal Metrologh Act, 2009. Thereafter the applicants came to be summoned by the court on 22.10.2024, 06.11.2024 and 03.03.2025. Questioning the summoning orders as well as the imposition of the penalty of an amount of Rs. 3.20 lacs, the present application has been preferred.

6. This Court while entertaining the present application on 19.05.2025 proceeded to pass the following order:

"1. The contention of the learned counsel for the applicant is that the entire proceedings arising out of criminal complaint Case No. 7547 of 2020 (State v. Biswa Bangla Marketing Corporation Ltd. and others) as well as the notice for demand dated 28.05.2024 issued by the Inspector Legal Matrology, Gatum Buddh Nagar cannot be sustained for the simple reason that the offences so alleged in the notices is with relation to non-display in the E-commerce website MRP inclusive of all taxes and non-specification of the dimension/ sizes of the product. It is further contended that if the offences have been committed for the first time then in view of Section 36 of the Legal Matrology Act, 2009, the maximum penalty would extend to Rs. 25,000/-, however, the present case with respect to compounding of an amount of Rs. 3,20,000/- has been determined. Argument is that as a maximum only Rs. 25,000/- could have been the penalty which was to be compounded in terms of Section 48 of the Act. Reliance has been placed upon the judgment of the Hon'ble High Court of Karnataka at Dharwad Bench in M/s Dabar India Limited and others v. The State of Karnataka; Criminal Petition No. 100673 of 2021, decided on 24.11.2023.

2. Matter requires consideration.

3. Learned AGA has accepted notice on behalf of opposite party no. 1-State.

4. The opposite parties shall file their counter affidavit by 01.07.2025.

5. Put up this case as fresh on 04.07.2025.

6. Till the next date of listing, no coercive action shall be taken against the applicant insofar as in Complaint Case No. 7547 of 2024 (State v. Biswa Bangla Marketing Corporation Ltd. and others) and summons issued by learned A.C.J.M, G.B. Nagar, under Section 18(1) and 36(1) of the Legal Matrology Act, 2009. "

7. A counter affidavit has been filed by the opposite party no.2 & 3 dated 20.06.2025 sworn by the then Assistant Controller, Legal Metrology Meerut Division Meerut.

8. As noticed above, learned counsel for the applicant has made a statement that he does not proceed to file any rejoinder affidavit.

9. Learned counsel for the applicant has sought to argue that the golden figure of an amount of Rs. 3.20 lac sought to be derived by virtue of demand notice dated 28.05.2024 cannot be sustained in the eyes of law. He submits that the procedure with respect to penalty for salling etc a false standard package stands covered under section 36, according to which for the first offence, the fine shall extend to Rs. 25,000/- for second offence it shall extended upto Rs. 50,000/- and for subsequent offence which fine it shall not be less than Rs. 25,000/- but not extend to one lacs or with imprisonment of term which may extend of one year or board. Learned counsel for the applicants submits that at best taking the case of the opposite parties to be true as per their own saying the amount cannot exceed beyond Rs.25,000/-. He in this regard seeks to rely upon the decision Karnataka High Court in the case of M/s Dabour India Ltd and Ors vs. State of Karnataka, Crl Petition No. 100673 of 2021 decided on 24.11.2023. He further submits that the applicants were each and every point of time willing to the compounding done. However, in the light of the provisions contained under section 48 read with section 36 of the Act the amount cannot exceed beyond Rs.25000/-. He submits that the notice be set aside and the matter be remitted back to the court below and the applicants may granted opportunity to appear and to plead their case.

10. Sri S.K. Singh learned AGA on the other hand submits that though the demand in question is perfectly justified and he seeks to invite attention towards para 13 of the counter affidavit. However according to him the matter needs to be revisited by the authorities while remanding the matter back to the court below for passing a fresh order.

11. I have heard the submissions so made across the bar and perused the record carefully.

12. Apparently with respect to the alleged violations with regard to non display of MRP (inclusive of all taxes) and the size of the product, notices came to be issued which were replied. Thereafter opportunity was accorded to the applicant by the opposite party no.2 for compounding. The applicants as per his own case applied for compounding. However the allegation is that the compounding application was not processed. A demand notice dated 28.05.2024 came to be issued raising a demand of Rs. 3.20 lacs. The contention of learned counsel for the applicants is that in view of the provisions contained U/s 36 read with Section 48 of the Act for the first offence, the demand cannot be beyond Rs. 25,000/-. He seeks to rely upon the decision of the Karnataka High Court in the case of Dabar India Ltd. (Supra). Sri S.K. Singh, learned AGA submits that the demand appears to be justified and he submits that the matter needs to be revisited particularly in the light of the provisions contained U/s 36 and 48 of the Act as well as the judgment in the case of Dabar India Ltd (Supra).

13. Section 36 and section 48 of the Act provides as under:

"36. Penalty for selling, etc., of non- standard packages.- 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.

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 NC: 2023:KHC-D:13737 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.

Any offence punishable under section 25, sections 27 to 39, sections 45 to 47, or any rule made under sub-section (3) of section 52 may, either before or after the institution of the prosecution, be compounded, on payment for credit to the Government of such sum as may be prescribed.(2) The Director or legal metrology officer as may be specially authorised by him in this behalf, may compound offences punishable under section 25, sections 27 to 39, or any rule made under sub-section (3) of section 52.(3)The Controller or legal metrology officer specially authorised by him, may compound offences punishable under section 25, sections 27 to 31, sections 33 to 37, sections 45 to 47, and any rule made under sub-section (3) of section 52:Provided that such sum shall not, in any case, exceed the maximum amount of the fine, which may be imposed under this Act for the offence so compounded.(4)Nothing in sub-section (1) shall apply to person who commits the same or similar offence, within a period of three years from the date on which the first offence, committed by him, was compounded.Explanation.? For the purposes of this sub-section, any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence.(5)Where an offence has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded.(6)No offence under this Act shall be compounded except as provided by this section."

14. In the case of M/s Dabar India Ltd (Supra) had the occasion to deal with section 36 and in para-9 which was it was observed as under:

"9. Section 36 of the Act clearly indicates that, if there is any violation, the accused shall be punished with fine, which may extend to Rs.25,000/- for the first offence and for the second offence with fine which may extend to Rs.50,000/- and for the subsequent offences, a minimum fine of Rs.50,000/-, which may be extended up to Rs.1,00,000/- or with imprisonment for one year for both. It is the submission of the learned counsel for the petitioners that, it is their first offence and under these circumstances, an appropriate order ought to have been passed under Section 36 of the Act and no such order has been passed."

15. Since the demand notice does not forthcoming as to whether it is the first offence or second offence or any of subsequent offences and as pointed by Sri S.K. Singh, learned AGA that this matter needs to be considered in the light of the statutory provisions contained under section 36 & 48 of the Act as well as the judgment in the case of Dabar India Ltd (Supra), thus the demand notice dated 28.05.2024 passed by the third respondent is set aside.

16. The application is decided in the following manner: