Santanu Jagatbandhu Sinha And ... vs State Of Maharashtra
2007 Latest Caselaw 927 Bom

ORDER

C.L. Pangarkar, J.

1. Rule.

2. Returnable forthwith.

3. Heard finally with consent of parties.

4. These two applications under Section 482 of Criminal Procedure Code can be decided together since the parties to the petition are identical and questions involved are also almost common.

5. By Criminal Application No. 781 /2007 the applicant seeks to quash the Criminal Complaint Case No. 1505/2001 on the file of Judicial Magistrate First Class Gondia. While Criminal Application No. 783/2007 is filed to quash Criminal Complaint Case No. 526/2001 on the file of Judicial Magistrate First Class Warora.

6. Manager (Legal) of Hindustan Lever Ltd. a Company has preferred both these applications on behalf of the Company. The complainant is Inspector of Legal Metrology i.e. Inspector of Weights and Measures.

A few facts in the application No. 781/07 may be narrated as follows:

The accused/applicant i.e. Hindustan Lever Ltd. had offered for sale products with following description:

1) "Double Action Blue Wheel with Power Shine" net weight when packed 250 gms. + 25 gms. Free; and

ii) "Green Detergent Cake not according to standard size.

It is alleged that both these packings are In breach of Rule 5 of Packaged Commodities Rules 1977 read with Section 33 of the Standards of Weights and Measures Act, 1976 (hereinafter referred to as the First Act). A process is issued against the accused.

7. In Criminal Application No. 783/2007 the allegations in the plaint are as under:

It is alleged that accused Hindustan Lever offered for sale a detergent cake with a description on the pack as:

Blue Detergent Cake Net Weight when packed 125 gms. + 25 gms. free - 20% extra.

8. The breach alleged is of Rules 5, 9, 12(1) and 12(6) punishable under Section 33 of the Standards Act i.e. 1976 Act. Mr. S.V. Manohar learned Counsel for the applicant contended that as far as first complaint before Gondia Court is concerned, it is vague as far as description of the accused persons is concerned and is also not according to provisions of Section 62 of the Second Act i.e. Standards of Weights and Measures (Enforcement) Act 1985. This Second Act was brought into effect for enforcement of Standards of Weights and Measures established by or under the Standards of Weights and Measures Act 1976 and for matters connected therewith or Incidental thereto. To enforce the provisions of 1976 Act the 1985 Act makes provision, i.e. how prosecution etc. 1$ to be launched and how a Company should be prosecuted. Accused has been described as follows in the complaint, "All Directors and Managers Hindustan Lever Limited, Backbay Reclamation, Mumbai". Now by any stretch of imagination it could not be the description of an accused at all. If at all the Directors are to be prosecuted they should be prosecuted by names and even where a Manager is to be prosecuted he should be prosecuted by name. If the complainant wanted to prosecute the Company, the Company should have been made an accused but complainant does not seek to make Company accused In this particular case. He seeks to make all Directors and Managers as accused. This is absolutely vague and for this vagueness Itself the complaint" should have been thrown away at the threshold. The proper description of the accused is absolutely necessary because in case of his conviction the order of conviction and sentence needs to be executed. With the above description the Court would be at a loss to know as to against whom such order of conviction should be executed,, There may be hundreds of Managers and even 10 Directors. All of them cannot be hauled up and sent to jail without they being actually asked to face the charge. For this reason alone the complaint should have been dismissed without issuing process.

9. This takes me to the second contention. Mr. Manohar submitted that only those accused can be prosecuted who are in charge and who are responsible to the Company for the conduct of the business. He relied upon the provisions contained in Section 62 of the Second Act i.e. 1985 Act. Section 62 reads thus:

Offences by companies.- (1) If the person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in Sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

The provision clearly lays down that only those who are incharge and responsible to the Company for the conduct of business can be prosecuted and not all. The law is now well settled in view of the decision of Supreme Court in S.M.S. Pharmaceuticals . In a decision reported in K. Srikanth Singh v. North East Securities Ltd. and Anr. the Supreme Court has also held that the complaint must contain pleadings to the effect that those persons who are sought to be prosecuted are either in-charge of the business or responsible to the Company for the conduct of the business. In the case at hand there is not even a whisper as to who are responsible and why all Directors should be prosecuted. In view of this also complaint was liable to be dismissed without issue of process.

10. The next point that was urged was that there is no breach as alleged with regard to the packing. The breach alleged is of Rule 5 of the Package Commodities Rules 1977. Rule 5 as it stood before amendment reads thus:

Specific commodities to be packed and sold only in standard packages. 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 except in such standard quantities as are specified in relation to that commodity in the Third Schedule:

Provided that the Central Government may, if it is satisfied that for any technical or mechanical reason it is not possible to pre-pack any commodity in the standard quantities specified in the Third Schedule, authorise the pre-packing of such commodities in such quantities as it may specify.

Thus the commodity is to be packed in standard quantity as mentioned in Schedule III and the complaint discloses that green detergent cake was not packed in standard quantity. On the pack the quantity is mentioned as 250 gms, + 25 gms. free. This it is contended is in breach of Rule 5. Entry No, 17 in Schedule III is the relevant entry for detergent cake, The detergent cake can be packed in quantity of 50, 75,100,125,150, 200, 250 and 300 gms. Now in this ease the pack is of 250 gms. and 25 gms. extra is free. It would be once again necessary to look into Rule 5. Rule 5 if read carefully would make it clear that any commodity for sale must be offered in standard pack. Here what is offered for sale is quantity of 250 gms. Thus the quantity offered for sale and for which price is charged is 250 gms. only. It is made clear on the pack that 25 gms. is offered, free. Hence extra 25 gms is not offered for sale at all. Further the retail price of the quantity offered for sale is also mentioned on the pack. The Rule to my mind required that the quantity offered for the sale should be according to entry No. 17. In the present case the quantity offered for sale is 250 gms. which is in compliance with entry No. 17. 25 gms. offered free is to be ignored for all purposes as it is not for sale. Hence even if the complaint is read as it is, it does not disclose an offence.

11. As far as second application is concerned it appears that company itself is shown as accused No. 2 being a Manufacturer. Section 62 of the 1985 Act permits prosecution of a Company. There is, therefore, no defect in prosecuting the Company as such.

12. Shri Manohar the learned Counsel submitted that in this case too the allegations do not prima facie disclose an offence at all. It is alleged that "Rin Supreme Whiteguard" blue detergent cake is offered for sale with following declaration.

Net weight when packed 125 gms. + 25" gm free 20% extra.

The breach alleged is of Rules 5, 9, 12(1) and 12(6) of 1977 Rules. As seen above Rule 5 envisages that the commodity must be packed in standard quantity. We have seen above that detergent cake can be packed in quantity of 125 gms. also. Here again the quantity offered for sale is only 125 gms, and price is charged for that quantity only. The other 25 gms. is offered free. The objective of Rule 5 is to prevent the customer from being misled or cheated. If what is printed on the pack is read there is no likelihood of anybody being misled or cheated. It is clearly mentioned that the quantity offered for sale is 125 gms. and 25 gms. is free and extra. This being the position it cannot be said that the packing was in breach of Rule 5. The price of the quantify offered for sale is also mentioned on the pack.

13. Relevant portion of Rule 12 of 1977 Rules reads thus:

Manner in which declaration of quantity shall be expressed.- (1) The declaration of quantity shall be expressed in terms of such unit of weight, measure or number of a combination of weight, measure or number as would give an accurate and adequate information to the consumer with regard to the quantity of the commodity contained in the package.

This Rule therefore mandates that the units of weights, measures or number of combination of weights should be given accurately so as to warn the consumer. If the declaration on the pack is seen it clearly gives an idea that 125 gms. is the quantity offered for sale and 25 gms. is free which comes to 20% extra. This in no case is likely to mislead the consumer as regards the quantity offered for sale and quantity actually being made available in the pack and the price thereof.

14. The learned Additional Public Prosecutor contended that there is use of word Extra in contravention of Rule 12(6). Rule 12(6) reads thus:

The declaration of quantity shall not contain any word or expression which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package, for example, words or expression like -

"Jumbo", "giant", "full", "family", "huge", "economy", "large", "extra", "colossal", "king", "queen", or any other word or expression of a similar nature, shall not be used.

15. The intention behind prohibition of use of words such as extra is with a view to avoid misleading or inadequate impression as to the quantity. In this case although word Extra is used along with the quantity offered i.e. 125 gms. + 25 gms. free 20% extra. Thus it is made clear that in that particular pack there is 25 gms. extra quantity which is equivalent to 20% of 125 gms. This certainly not a misleading declaration.

16. It was also contended that complaint is prima facie barred by limitation. The offence under Section 33 of 1976 Act is punishable under Section 51 of the 1985 Act. Section 51 says that the first offence shall be punishable with fine of Rs. 5000/-. Thus it is an offence which is punishable with fine only on the first occasion. Section 468 of the Criminal Procedure Code prescribes limitation of six months where offence is punishable with fine only.

17. In this case the seizure is dated 15-2-2O01 and the complaint is instituted on 28-8-2001. The complaint should have been therefore filed on 15-8-2001. It is obviously barred by limitation. For this reason also this complaint is liable to be quashed. As a result both the applications are allowed and complaint cases filled before Judicial Magistrate, First Class, Gondia and Warora are quashed.