Bombay High Court
Asian Paints (India) Ltd vs Inspector Of Legal Metrology ... on 24 October, 2016
Bench: V.K. Jadhav
CRI WP 409.2003
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 409 OF 2003
1. Asian Paints (India) Limited, a company
registered under the Indian Companies
Act 1913 and an existing company under
the Companies Act, 1956 having its
Registered office at 6A, Shantinagar,
Santacruz (East), Mumbai 400 055,
Formerly with Registered Office at
'Nirmal', 5th Floor,
Nariman Point,
P.B. No. 11701, Mumbai 400 021,
and a branch inter alia at
C/o Patil Bros,
Peth Naka,
Panchawati,
Nashik 422 203. ...Petitioner
Versus
1. Inspector of Legal Metrology,
Office of the Inspector of Legal Metrology,
Dhule-2nd Section, House No. 7,
Subhash Chowk,
Near Mari Mata Temple,
Dhule-2.
2. State of Maharashtra. ...Respondents
.....
Mr. Joydeep Chatterjee, Advocate for Petitioner.
Mr. A.R. Kale APP for Respondents.
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CORAM : V. K. JADHAV, J.
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Date of Reserving the Judgment : 23.09.2016
Date of pronouncing the Judgment : 24.10.2016
...
CRI WP 409.2003
JUDGMENT :-
1. By of this Writ Petition, the petitioner Company seeks
quashing of the Criminal complaint bearing STCC No.322 of
1999 pending before the Judicial Magistrate First Class,
Dhule.
2. Brief facts, giving rise to the present writ petition are as
follows :-
The petitioner is a manufacturer of paints having its
manufacturing facilities at various locations in India.
Respondent No.1 is the Inspector of Legal Metrology who is
responsible for administration of the Standards of Weights
and Measures Act, 1976, Standards of Weights and Measures
(Enforcement) Act, 1985 (hereinafter referred to as the said
Acts) and the Standard of Weights and Measures (Packaged
Commodities) Rules, 1977 (hereinafter referred to as the Rules
of 1977) in Dhule. Respondent No.1 on Inspection of the
premises on 5.11.1998 of M/s Rangoli Paints, Nehru Chowk,
Deopur, Dhule being one of the dealer of the petitioner herein
and seized certain two packs of WOODORITE primer of one
litre each on the ground that, packages contained an extra
label containing price, month and year of packing.
CRI WP 409.2003
Respondent Inspector issued a notice No.98/350 dated
16.11.1998 to the petitioner contending therein that,
Maximum Retail Price and months and year of packing were
marked on a sticker and the same constitutes an offence
under section 33 of the Act and punishable under section 51
and 56 of the Act. The petitioner sought and attended
personal hearing in response to the said notice. Respondent
Inspector thereafter on 26.4.1999 issued a notice stating
therein that a criminal complaint is filed before the Judicial
Magistrate First Class, Dhule against the petitioner on
3.5.1999. The said complaint is registered as STC
No.322/1999 and pending before the Court of Judicial
Magistrate First Class, Dhule. Summons was also served on
the petitioner on 29.7.1999. The petitioner therefore by filing
present writ petition seeks quashing of said STC No.322/1999
pending before the Judicial Magistrate First Class, Dhule.
3. The learned counsel for the petitioner submits that the
petitioner manufactures several varieties and shades of paints
and such paints are sold in tins and drums of standard
quality. The petitioner's product falls within the meaning of
Packaged Commodities as defined in the Act and the Rules in
CRI WP 409.2003
terms of Section 39 of the Act and Rule 6 of the Rules of 1977.
The petitioner is required to make the declarations on the
package to the effect that :-
I]] Name and address of the manufacturer,
ii] Identity of the commodity in the package;
iii] Net quantity;
iv] Month and year in which the commodity is
manufactured or packed; and
v] the retail sale price of the package.
4. In terms of Rule 4 of the Rules of 1977, 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
securely affixed thereto, such declarations as are required to
be made under these rules.
In terms of Rule 9 of the Rules of 1977 every declaration
which is required to be made on a package shall be printed,
painted or inscribed on the package or on a label securely
affixed thereto.
5. The learned counsel submits that, the petitioner has
standard pack sizes of packages for packing and marketing
CRI WP 409.2003
the paints, the name and address of the manufacturer, the net
quantity and identify of the product are pre printed on the
package in a prominent manner. All these declarations are
found together in the prescribed area of the Principal Display
Panel. In regard to the month and year of packing as well as
retail sale price, it would not be possible for the petitioner to
preprint the same in advance. There are several varieties and
shades of the paints, which will be virtually impossible to
preprint the month and year of manufacturer/packing as the
actual manufacture would depend on several factors which
vary from time to time depending on market conditions. The
petitioner cannot afford to preprint tins/drums on a uniform
basis with month and year of manufacture/packing and
discarding them in the event of not being able to use them
later on. As regards to the retail sale price, the law requires to
state the maximum retail price inclusive of all taxes since the
petitioner has an all India market, it will have to take a note of
various taxes and levies imposed in different states prior to
determining the maximum retail price. Thus, the maximum
retail price will have to be determined at the time of packing.
It is for these reasons the manufacture, year of the
manufacture and maximum retail price cannot be preprinted.
CRI WP 409.2003
The learned counsel submits that, in terms of the then Rule
8(1), subject to Rule 8 (2) of the Rules of 1977, prior to 1999
amendment, every declaration required to be made under the
Rules shall, wherever practicable, appear on the Principal
Display panel and shall ordinarily be parallel to the base on
which the package is intended by its manufacture to rest.
In terms of Rule 8 (2) (ii), prior to the 1999 amendment,
in case of a container made of any metal, glass, plastic or foil,
the month and the year in which the commodity contained in
such container was manufactured or prepacked, may be
indicated either on the top or on the bottom of such container.
It is therefore, clear that it is not mandatory that all
declarations should be shown on the label.
6. Learned counsel submits that, the petitioner, therefore,
necessarily has to affix a label stating the month and year of
the manufacture and retail sale price. However, no rule
stipulates that all the declarations should be made on one
label. Learned counsel submits that, the petitioner is
complying with the provisions of Acts and Rules not merely in
spirit but also in letter and therefore, no allegation of
contravention can be levelled against the petitioner. Learned
CRI WP 409.2003
counsel submits that without prejudice to the petitioner's
contentions that the petitioner has not contravened any
provision of the Acts and Rules, the petitioner's actions in
stating declarations amounts to substantial compliance with
the provisions of law and no consumer would be mislead in
any manner whatsoever by the petitioner stating the
declarations partly on the package and partly on the label
appearing together.
7. Learned counsel submits that notice dated 16.11.1998
issued by the respondent Inspector and prosecution of the
petitioner initiated on the basis of the aforesaid notice is
arbitrary, unreasonable and as such violates Article 14 of the
Constitution of India. Said criminal complaint STC 322/1999
filed on the basis of said notice is not maintainable against the
petitioner.
8. Learned counsel submits that similar, issue arose at
Bangalore and the petitioner was constrained to file a writ
petition No.30515/1997 before the High Court of Karnataka at
Bangalore. The High Court of Karnataka, while staying
operation of the notice issued by the Inspector of Legal
Metrology directed the respondents not to take any action
CRI WP 409.2003
against the petitioner on the ground that sale price is
displayed on the container by affixing stickers. Further, in a
like case, the petitioner was constrained to file Writ Petition
O.P. No.2373/1999 and O.P. No.2382/1999 before the High
Court of Kerala. The High Court of Kerala had stayed the
operation of the notice issued by the Inspector of Legal
Metrology and further directed the respondent therein that not
to take any action against the Petitioner on the ground that
sale price is displayed on the container by affixing stickers.
9. The learned counsel further submits that, in terms of
Rule 4 of the Rules of 1977, 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 securely
affixed thereto, such declaration as are required to be made
under these rules and in terms of Rule 6- the petitioner is
required to make certain declarations on the package. Every
package shall appear thereon or on a label securely affixed
thereto a definite, plain and conspicuous declaration, made in
accordance with the provisions of Chapter 2.
The learned counsel submits that, there are allegations
CRI WP 409.2003
in the complaint that sealed packages contained an extra
sticker containing price, month and year of the packaging. The
learned counsel for the petitioner brought attention of this
Court to the dictionary meanings of the words "Label",
"Secure", "Affix" and "sticker" in the various dictionaries.
10. Learned counsel submits that, keeping in mind the
dictionary meanings to the words especially 'label', 'securely'
and 'affix', the impugned action of the respondent- inspector
in issuing the notice dated 16.11.1998 and thereafter
launching of the prosecution vide STC No.322/1999 is wholly
improper, illegal and unreasonable.
11. The learned APP submits that, the petitioner has
committed an offence as provided under section 33 of the Act
read with Rule 4 of the Rules of 1977 and punishable under
section 51 and 65 of the Standards of Weights of Measures
(Enforcement Act, 1985). The petitioner has not challenged
the letter and action of the Department nor bothered to
submit any reply to the notice. Even, the petitioner or his
representative have not attended a personal hearing before the
respondent-inspector. The learned APP submits that, in terms
CRI WP 409.2003
of the provisions of Rules as applicable at the time of seizure
of the said goods, all the declarations required should be
either on the surface area of the product or on the label
securely affixed thereon. The learned APP submits that, the
additional paper stickers containing month, year of packaging
etc., found on the product and those are not securely affixed
as provided under the relevant provisions of the Act. The
learned APP submits that, a case is made out against the
petitioner to proceed with the trial of STC No.322/1999.
There is no merit in the writ petition and the writ petition is
liable to be dismissed.
12. The petitioner company manufactures several varieties
and shades of paints and such paints are sold in tins and
drums of standard quality. The petitioner's product falls
within the meaning of Packaged commodities as defined in the
Act and the Rules. Chapter 2 of the Rules, 1977 makes the
provision applicable to the packages intended for retail sale.
Rule 4 of the Rules, 1977 which is relevant for the present
discussion is reproduced herein below :-
4. Regulation for pre-packing and sale, etc., of
commodities in packaged form-
On and form the commencement of these rules, no person
shall pre-pack, or cause or permit to be pre-packed any
CRI WP 409.2003
commodity for sale, distribution or delivery unless the
package in which the commodity is pre-packed bears
thereon, or on a label securely affixed thereto, such
declarations as are required to be made under these
rules.
13. In terms of Rule 6 of the Rules, 1977, the petitioner on
the package or on a label securely affixed thereto is required
to make definite, plain and conspicuous declaration, made in
accordance with the provisions of Chapter 2 as, to :-
i]
name and address of the manufacturer;
ii] the common or generic name of the commodity
contained in the package,
iii] the net quantity, in terms of the standard unit of weight
or measure, of the commodity contained in the package
or where commodity is packed or sold by number, the
number of the commodity contained in the package;
iv] the month and year in which the commodity is
manufactured or pre-packed,
v] Retail sale price of the package
vi] Where the sizes of the commodity contained in the
package are relevant, the dimensions of the commodity
contained in the package and if the dimensions of the
different pieces are different, the dimensions of each
such different piece.
Vii] such other matters as are prescribed in these rules.
14. So far as the present case is concerned, clause nos. (i) to
(v) are relevant. In terms of Rule 9 of the Rules, 1977, every
declaration which is required to be made on a package under
these rules shall be :-
CRI WP 409.2003
a] legible, prominent, definite, plain and
unambiguous,
b] conspicuous as to size, number and colour,
c] as far as practicable in such style or type of
lettering has to be boldly, clear and conspicuously
presented in distinct contrast to the other type,
lettering or graphic material used on the package.
(this clause is omitted w.e.f 6.7.1999).
d] Numerals of the retail sale price and net quantity
declaration and shall be printed, painted or
inscribed on the package in a colour that contrasts
conspicuously with the background of the label
Provided that,-
(a) where any label information is blown,
formed or moulded on a glass or plastic
surface, such information need not be
required to be presented in a contrasting
colour;]
(b) where any declaration on a package is
printed either in the form of hand-writing
or hand-script, such declaration shall be
clear, unambiguous and legible.
15. Rule 4 and 6 of the Rules of 1977 are mandatory in this
regard and declarations are required to be made on every
package or on a label securely affixed thereto. So far as the
name and address of the manufacturer, net quantity and
identity of the product are concerned, the same are preprinted
on the package in a prominent manner. So far as declaration
with regard to the month and year of packing as well as retail
CRI WP 409.2003
sale price is concerned, the package contained an extra paper
sticker declaring the price, month and year of packing. Thus,
the question arises whether declaration about the date and
year of manufacturing of the product and retail price on a
paper sticker would amount to compliance of Rule 4 and 6 of
the Rules, 1977 as reproduced herein above.
16. So far as dictionary meanings of the words as pointed
out by the learned counsel for the petitioner, the same is
reproduced herein below in a tabular form.
WORDS OXFORD ADVANCED WEBSER'S NEW WORLD OXFORD PAPERBACK
LEARNER'S DICTIONARY DICTIONARY DICTIONARY
LABEL 1. piece of paper, cloth, 1. a card, paper, etc. 1. a slip of paper, cloth,
metal, etc., on or beside marked and attached to or metal etc. fixed on or
an object and describing an object to indicate its beside an object and
its nature, name, owner, contents, owner, show-ing its nature,
destination, etc: put a destination, etc. owner, name,
label on a piece of destination, or other
clothing, a specimen, one's information about it.
luggage.
2. a descriptive word or
phrase classifying people
etc- label v (Labelled,
labelling)
1. to attach a label to.
SECURE firmly fixed; not likely to -- --
fall, be broken, etc;
reliable:
AFFIX 1. stick, fasten or attach
STICKER 1.sticky label with a A person or thing that 1.An adhesive label or
picture or message on it. sticks, specif, a gummed sign
label.
2. a person who persists
in his or her efforts
17. Prima facie there appears to be some difference between
the word "label" and "sticker". If a paper sticker used for such
CRI WP 409.2003
declaration as aforesaid, it cannot be prima facie said that
such declaration is made on a label securely affixed on a
package. A paper sticker affixed with the help of gum or
adhesive cannot be said to be firmly affixed. It is likely to
fall/broken. It is not reliable. Prima facie I find substance in
the allegations made in the complaint and case is made out
for trial in accordance with law. The legislature at their
wisdom considered the same and, thus Rule 4 and 6 of the
Rules, 1977 provides such declarations are to be made on
every package or on a label securely affixed thereto. In the
present case, prima facie, it appears that, there is no
compliance of the Rule 4 and 6 of the Rules 1977.
18. In view of the above discussion, I do not find any
substance in the writ petition. Hence, following order.
O R D E R
I. Writ Petition is hereby dismissed.
II. Rule discharged.
( V. K. JADHAV )
JUDGE
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