Bombay High Court
Colgate Palmolive (India) Ltd & ... vs State Of Maha & Ors on 26 October, 2016
Bench: V.K. Jadhav
1 Cri appln No.290.2003.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.290 OF 2003
1. Colgate-Palmolive (India) Ltd.,
B-14/10, MIDC, Waluj,
Industrial Area, Aurangabad.
2. Dinesh Castellino,
Deputy Company Secretary and
Authorized Signatory,
Colgate Palmolive (I) Ltd.,
age 30 yrs, Occ. Service,
R/o Colgate Research Centre,
Hiranandani Gardens,
Powai, Mumbai 400 076. Applicants.
VERSUS
1. State of Maharashtra,
2. Inspector of Legal Metrology,
Gangapur Division,
17, Godavari Colony,
Gangapur, Dist. Aurangabad.
3. Union of India. (deleted). Respondents
...
Mrs C.S. Deshmukh, Advocate for Applicants.
Mr. A R Kale, APP for Respondents.
...
CORAM : V. K. JADHAV, J.
...
Date of Reserving the Judgment : 10.10.2016
Date of pronouncing the Judgment : 26.10.2016
...
JUDGMENT :-
1. Being aggrieved by the seizure of goods under
receipt dated 8.5.2002, notice dated 11.5.2002, and a
complaint dated 18.10.2002 and the order of the
Judicial Magistrate First Class, Aurangabad dated
19.10.2002 issuing thereby process against the
applicants, the applicants prefers this application under
section 482 of the Code of Criminal Procedure for
quashing the same.
2.
Brief facts, giving rise to the present application
are as under :-
a] The applicant No.1, is a Company registered under
the Companies Act having its office at Mumbai. The
company has a manufacturing Unit/Factory at
Aurangabad and the company is engaged at aforesaid
unit, in manufacturing, inter-alia, toilet soaps.
b] On 8.5.2002 respondent no.2 had inspected the
toilet soap stored in the petitioner no.1's premises. It
was noticed during the said inspection that the
products of the company namely Palmolive Naturals
Soap (with milk cream) and Palmolive Naturals Soap
(Relaxing) have weighed lesser than the declared net
weight. Respondent No.2 in exercise of powers under
Section 29 of The Standards of Weights and Measures
Act, 1976 (hereinafter referred to as 'Standards Act') and
under Section 31 of The Standards of Weights and
Measures (Enforcement) Act, 1985, (hereinafter referred
to as 'Enforcement Act'), seized the materials referring to
the Rules 24, 25 and 26 of The Standards of Weights
and Measures (Packaged Commodities) Rules, 1977
(Packaged Commodities Rules, 1977. Respondent No.2
had seized 80 sample of Palmolive Naturals (with milk
cream) soap (75 grams net weight, when packed) with10
empty wrappers thereof and 80 sample packages of
Palmolive Naturals (Relaxing) soap (100 grams net
weight, when packed) and 10 empty wrappers thereof
and also 6,30,576 packages of Palmolive Natures (with
milk cream) soap and 1,08,864 packages of Palmolive
Naturals (Relaxing) soap, aggregate costs of the seized
material is Rs.71,67,656/-.
c] Respondent No.2 had thereafter sent a notice
dated 11.5.2002 to the applicant alleging therein that
after checking the net weight of the soap, weight of the
soap was found to be less and therefore, goods have
been seized vide receipt dated 8.5.2002. It has also
contended in the said notice that, prima facie the
provisions of section 33 of the Standards Act and Rules
24, 25 and 26 of the Packaged Commodities Rules have
been contravened. The applicants were called upon to
give their explanation.
d]
The applicants under letter dated 28.5.2002
tendered their explanation inter alia contending therein
that, the toilet soaps as listed in the Fourth Schedule of
Packaged Commodity Rules and as per Rule 11 (4)
qualified by words "when packed" and accuracy
requirement referred to time of manufacturing/packing.
It has also brought to the notice of the respondents
that, since the commodities are likely to undergo
significant variations in net contents of the packages on
account of the environmental and other conditions, the
relevant provisions of the Act and rules allowed the
declaration of quantity in relation to the commodities
sold by weight or volume to be clarified by words "when
packed". It has also brought to the notice of the
respondent that as per the record, net weight at the
time of manufacture of the soaps showing that net
weight of the soaps is in conformity with the Rule 24 of
the Packaged Commodities Rules. Accordingly, it was
requested to release seized goods and to grant personal
hearing in case further clarification or explanation is
sought. Even, the applicants constrained to write again
to the respondents reiterating the same facts.
e] The Respondents by letter dated 26.8.2002
informed the applicants that they have violated Section
33 of the Standards Act and they are liable for the
prosecution, however, the opportunity was extended to
the applicants to compound the offence at the
departmental level, if desired. The applicants have
replied to the said letter immediately pointing out the
position as stated in the earlier explanation and further
pointing out that there has been a compliance with the
provisions of law and there has been no violation of the
provisions of Standards Act, Enforcement Act and
Packaged Commodities Rules and further expressed
their inability with regard to the inquiry in relation to
the alleged offences. On 30.9.2002 the respondent has
communicated a decision to the applicants for lodging of
complaint in the Court. Thus, on 18.10.2002 respondent
no.2 had lodged a complaint under Rules 24, 25 of the
Packaged Commodity Rules read with section 33 and 51
of the Enforcement Act, against the applicants. The
learned Judicial Magistrate First Class, Aurangabad was
pleased to issue process against the applicants for the
aforesaid offences by order dated 19.10.2002. Hence,
this Criminal Application.
3. The learned counsel for the applicants submits
that, the allegations made in the complaint and the
order issuing process by the Magistrate are not proper,
correct and legal as it ignored the fact that toilet soap
contain moisture, and it is a known, well recognized
phenomenon that environmental conditions cause loss
of moisture, which in turn results loss of the weight of
the soap. Learned counsel submits that, the relevant
provisions of the Act therefore, provides for and makes
allowance for such phenomenon and permits the
manufacturer or packer of such commodities to qualify
the declaration as to its net contents/weight by the use
of the words "when packed". The learned counsel
submits that, the package commodity Rules prohibits
declaration of quantity of a packaged commodity to be
qualified by the words "when packed" where the
commodity in package is not likely to undergo any
variation in weight or measure on account of
environmental conditions and that quantity declared on
the package shall correspond to the net quantity to be
received by the consumer. However, the Packaged
Commodity Rules provides for qualification of
declaration of quantity, by words "when packed" of the
commodities specified in IV th Schedule since they are
likely to undergo significant variations of weight or
measure on account of environmental or other
conditions. The learned counsel submits that, said
words "When Packed" denotes the net weight of the
commodity at the time of manufacturing/packing, and
thereby making it clear that weight is likely to change
and vary subsequently on account of
environmental/climatic conditions. The complaint as
such does not take above facts into consideration and
thus the complaint is without any basis and the
allegations do not make out any case under the said Act
and Packaged commodity Rules. Learned counsel
submits that, the complaint and the order issuing
process thus are liable to be quashed and set aside on
this count alone.
4. The learned counsel submits that, it was
incumbent and imperative that respondent no.2 should
have weighed the toilet soap of the applicants at the
time of manufacture or packing, to inspect and see,
whether there is compliance of the Rules framed in
relation to the said products. Learned counsel submits
that, as a matter of fact, the applicants had requested
the respondent no.2 to weigh the toilet soaps at the time
of manufacture and packing, however, respondent no.2
has not responded to it. Learned counsel submits that,
the action of respondent no.2 in weighing and seizing
the goods after a noticeable gap of time after event of
manufacture and packing of the said soaps is contrary
to the purpose for which the powers can be exercised by
him under the Standards Act, Enforcement Act and
Package Commodity Rules.
5. The learned counsel submits that, the Ministry of
Civil Supplies, Consumer Affairs and Public Distribution
Weights and Measures by letter dated 8.7.1994 issued a
clarification regarding the Standards of Weight and
Measures (Packaged Commodities) Rules, 1977 and
informed to All India Management Association that
according to the provisions of Rules 11 (4), net quantity
declaration of toilet soap and other commodities listed in
the Fourth Schedule, may be qualified by the words
"when packed" as the commodities are likely to undergo
significant variations in weight or measures on account
of environmental or other conditions. The implication of
these provisions is that, in respect of the commodities
listed in the Fourth Schedule the accuracy requirement
would apply only at the time of manufacturing/packing.
In this connection, the attention is also drawn to the
provisions of the Proviso appended to Rule 26 (3).
Learned counsel submits that, in view of the said
clarification, the implication of Rule 11 (4) is that, the
commodities listed in the Fourth Schedule, the accuracy
requirement would apply only at the time of
manufacturing/packing.
6. Learned counsel submits that the procedure is
prescribed in Rule 24 of the Packaged Commodities
Rules for examination of and determination of quantity
and error in packages at the premises of the
manufacturer or packer. In terms of sub-rule (4) of Rule
24 the clause ©, if any such package shows an error in
deficiency greater than twice the maximum permissible
error, then, the Director or the authorized person shall,
if for good and sufficient reason, requested by the
manufacturer or packer or his authorized agent, so to
do, take out as soon as may be practicable, fresh
samples and carry out fresh tests in accordance with
the provisions of these rules. Learned counsel submits
that, in the explanation tendered by the applicants and
even thereafter, the request is made to the respondents
to take samples from the running line at the time of
manufacture to ascertain that whether the applicants
are complying with all the laid down rules and
regulations. Even, the applicant has also annexed with
their application a statement containing the details of
net weight of the toilet soap in question taken while the
same was being manufactured or packed. At least 80
samples were taken from each batch and none of the
sample at the time of same being manufactured or
packed showed weight less than the weight declared on
the package. This conclusively establishes that the
product in question strictly complied with the applicable
provisions regarding 'net weight' contained in the
Packaged Commodities Rules.
7. It is also brought to the notice of the respondents
that there is significant gap of time between the date of
manufacture and samples were drawn. Learned counsel
submits that, though the petitioners for good and
sufficient reasons requested the respondents to take out
fresh samples and carry out fresh tests in accordance
with the provisions of these rules, said request was not
adhered to, causing non-compliance of the mandatory
provisions of sub-rule (4) of Rule 24 of the Packaged
Commodities Rules, 1977.
8. Learned counsel submits that, as per the net
content checking data sheet, it is erroneously recorded
that sample fails in all three criteria as per Rule 24 sub-
rule (4) a,b and c so far as Palmolive Naturals soap
(relaxing) is concerned.
9. Learned counsel submits that, the allegations
made in the complaint do not make out any case under
the provisions of the 'Standards Act' and 'Packaged
Commodities Rules' and the complaint and the order of
issuance of process thereto are liable to be quashed and
set aside.
10. Learned counsel in order to substantiate her
contentions, placed her reliance on following three
judgments :-
1. The Manager, M/s Asian Paints (I) Ltd.,
Vs. The Inspector of Legal Metrology
reported in 2002 Cri.L.J. 3869.
2. K.P.Varghese Vs. Income Tax Officer,
Ernakulam and others reported in AIR
1981 SUPREME COURT 1922.
3. State of T.N. Vs. Mahi Traders and
others reported in AIR 1989 SUPREME
COURT 1167.
11. The learned APP submits that, as per Rule 24 of
the Packaged Commodities Rules the samples were
drawn from the batches as per Schedule IX and tests
were carried out. The product Palmolive Natural (with
milk cream) was 75 grams was manufactured on
3.5.2002 and tests were carried out on 8.5.2002. Said
test was carried out at the time of manufacturing.
The another package of another Palmolive natural
soap (relaxing), the samples were taken randomly and
as per rule 24 net content was checked. It was weighing
less than twice the maximum permissible error. The
learned APP submits that, as per rule 27 of the
Packaged Commodities Rules, the maximum
permissible error in relation to the commodities
specified in the First Schedule shall be such as
indicated in the corresponding entires in that Schedule
against concerned commodity and the maximum
permissible error in relation to any commodity not
specified in the First Schedule, shall be such as
specified in the Second Schedule. The learned APP
submits that, the maximum permissible error is
prescribed for toilet soap considering the factors like
moisture content, climate etc. The maximum
permissible error prescribed for toilet soap is 3% as
mentioned in Schedule I of the Packaged Commodities
Rules. The average net content of the Palmolive
naturals (Relaxing) soap was found 92.86 grams which
is less in weight by 7.14 grams. Thus, the ultimate
customer who is paying for 100 grams is infact getting
very much less than 100 grams. Even accepting double
of maximum permissible error i.e.6 grams, the
deficiency is more than six grams. The learned APP
submits that, there is clear violation of the Rule 25 of
the Packaged Commodities Rules. Thus, by taking into
account, the above factors department has not allowed
to draw samples from the running line at the time of
manufacturing.
12. The learned APP submits that, the respondent has
given opportunity to compound the offence at the
department level by issuing a letter dated 11.5.2002 and
26.8.2002 and on 30.9.2002. However, the applicant
company has not shown any response to compound the
case at department level. Thus, respondent no.2 has
filed the complaint before the Judicial Magistrate First
Class who has rightly issued the process against the
applicants.
13. The learned APP further submits that, in the
instant case, determination of the net quantity of the
soap packages was done at the applicant's
manufacturers premises. It is clear from the data
checking sheet that, on completion of the examination
and test carried out, the statistical average of the net
quantity of soap packages drawn at sample is lesser
than quantity declared on the package. A copy of the
report is also furnished to the applicant. At that time
the applicant had to request respondent no.2 for
carrying out fresh test in accordance with the provisions
of these rules. In terms of provisions of Rule 24 (3) of
Packaged Commodities Rules, if fresh samples are to be
drawn, the petitioner should have preserved other
packages from the same batch from which he had
drawn the packages for determination of net quantity
and which were selected as samples. The petitioner had
made such a request on 8.7.2002 which is inconsistent
with the proviso of Rule 24 (3) of the Packaged
Commodities Rules.
14. The learned APP further submits that, in rule 24
and 25 of the Packaged Commodities Rules, the detailed
procedure for examination and determination of the
quantity and error in packages at the premises of the
manufacturer or packer and action to be taken on
completion or examination of the packages at the
premises of the manufacturer or packer is specified. In
both these rules provision for packages qualified by
words "when packed" or the like is not specified. In
terms of Rule 26 of the Packaged Commodities Rules
the action to be taken with regard to the packages
examined at the premises of the wholesale dealer or
retail dealer is specified and, therefore, as per the
provision of sub-rule (3) of rule 26, no punitive action
regarding net quantity is taken in case the package
bears legend "when packed".
15. The learned APP submits that, rule 24 of the
Packaged Commodities Rules specified the procedure for
examination and determination of the quantity and
error in packing at the premises of the manufacturer or
packer. In this Rule, time to take sample is not specified
but how to draw the samples and to take weights of
packages and other procedure is specified in schedule
IX and X respectively. The learned APP further submits
that, action is to be taken on completion of the
examination of packages at the premises of the
manufacturer or packer is specified in rule 25 (1) of the
Packaged Commodities Rules and as per this rule, the
action is to be taken only if :-
(a) The statistical average of the net quantity
contained in the packages drawn as samples
under that rule is less than the quantity
declared on the packages are on the labels
affixed thereto, or
(b) The number of packages, showing and error in
deficiency greater than the maximum
permissible error, is more than (the number
specified in column 3 of the table in the Ninth
Schedule, or)
(c) Any such package shows an error in deficiency
greater than twice the maximum permissible
error, or
(d) Any such package does not bear thereon or on a
label affixed thereto the declarations to be
made under these rules.
16. The learned APP submits that, the data sheet
made by respondent no.2 clearly indicates that
statistical average of the net quantity of the seized
product is less than the declared quantity. There is no
provision to deduct the maximum permissible error
from the statistical average of the net quantity. The
term maximum permissible error is referred in relation
with the number of packages in the batch under
examination showing an error in deficiency greater than
the specified permissible error. The learned APP
submits that there is no substance in this Criminal
Application and Criminal Application is thus liable to be
dismissed.
17. The learned APP submits that, in the given facts of
allegations, case is made out against the applicants and
considering the same, the learned Magistrate has rightly
taken cognizance and issued the process against the
applicants for having committed an offence punishable
under sections 33/51 of Standards of Weights and
Measures (Enforcement) Act, 1985 read with Rules 24
and 25 of the Standards of Weights and Measures
(Package Commodity) Rules, 1977. There is no
substance in the criminal application and thus the
criminal application is liable to be dismissed.
18. The learned counsel for the applicants submits
that, the Packaged Commodities Rules provided for
qualification of declaration of quantity by words "when
packed" of the commodity specified in Fourth Schedule
since they are likely to undergo significant variations of
weight or measures on account of environmental or
other conditions. Learned counsel also submits that
Rule 11 (4) of the Packaged Commodities Rules clearly
establishes that accuracy requirement of the content
would apply only at the time of manufacturing and
packing. The same is also evident from the clarification
dated 8.7.1994 issued by the Ministry of Civil Supplies,
Consumer Affairs and Public Distribution Weights and
Measures.
19. Rule 11 sub-rule (4) of the Packaged Commodities
Rules which is relevant for the present discussion is
reproduced herein below :-
11.General Provisions relating to
declaration of quantity :-
1.......................................
2.......................................
3........................................
4. The declaration of quantity in relation to
commodities specified in the Forth
Schedule, that is to say, commodities
which are likely to undergo significant
variations in weight or measure on
account of environmental or other
conditions may be qualified by the words
"when packed" [****]
Rule 11 of the Packaged Commodity Rules
prescribed the provisions relating to declaration of
quantity and sub rule (4) (prior to amendment w.e.f.
1.5.2008) speaks about declaration of the quantity in
relation to the commodities specified in the Fourth
Schedule, which likely to undergo significant variations
in weight or measure on account of environmental and
other conditions, may be qualified by the words "when
packed". In sub rule (4), the reference is given to the
commodities specified in Fourth Schedule. Fourth
Schedule as provided in Rule 11 Sub Rule (4) only the
relevant entry sr no.14 is reproduced herein below :-
THE FOURTH SCHEDULE
(Rule 11 (4) of the Packaged Commodities Rules)
Declaration of quantity in relation to commodities (sold by weight or volume) which
may be qualified by the words "when packed" and the additional information
which the package or the label affixed thereto shall bear on it
---------------------------------------------------------------------------
S.No. Name of commodity Additional information to
be stated on the package
---------------------------------------------------------------------------
14. Toilet Soap. [******]
---------------------------------------------------------------------------
20. Sub-Rule (2) of Rule 11 of the Packaged
Commodities Rules speaks about the commodity in a
package which is not likely to undergo any variation in
weight or measure, on account of the environmental
conditions, and sub rule (3) of rule 11 speaks about a
commodity in a package likely to undergo variation in
weight or measure on account of the environmental
conditions and such variation is negligible. In both the
categories as mentioned in sub-rule (2) and (3) of Rule
11 of the Packaged Commodities Rules the package
shall not be qualified by the words "when packed" or the
like. However, in sub rule (4) of Rule 11 of the Packaged
Commodities Rules, the commodities as specified in the
Fourth Schedule are likely to undergo significant
variations in weight or measure on account of
environmental or other conditions required to be
qualified by the words "when packed".
21. It is thus clear that, at serial no.14 the product
toilet soap is mentioned in Fourth Schedule and thus in
terms of sub-rule (4) of Rule 11 of the Packaged
Commodities Rules, the declaration of quantity of a
toilet soap may be qualified by the words "when packed".
It is to be noted here that, rule 11 of Packaged
Commodities Rules prescribed the general provisions
relating to declaration of quantity.
22. Rule 24 and 26 of the Packaged Commodities
Rules prescribes the procedure for examination of and
determination of the quantity and error in packages.
Rule 24 prescribes a procedure for examination of and
determination of quantity and error in packages at the
premises of the manufacturer or packer, whereas, Rule
26 of the Packaged Commodities Rules prescribes
procedure and action to be taken with regard to the
packages examined at the premises of the wholesale
dealer or retail dealer. Rule 25 of the Packaged
Commodities Rules speaks about action to be taken on
completion of examination of packages at the premises
of the manufacturer or the packer. Sub Rule (3) and (4)
of Rule 24 are relevant in the present discussion and
thus reproduced herein below :-
24. Procedure for examination of and determination
of quantity and error in packages at the
premises of the manufacturer or packer :-
1........................
2........................
(3) On the completion of the examination and tests
carried out under sub-rule (1), the Director or the
authorized person shall make a report indicating
therein his findings with regard to the declarations
required to be made under these rules and as to
the net quantity actually contained in the sample
packages and the extent of error, if any, noticed by
him and furnish a copy of such report to the
manufacturer or the packer, as the case may be.
(4) If it appear from the report referred to in sub-rule
(3) that-
(a) the statistical average of the net quantity
contained in the packages drawn as samples is
lesser than the quantity declared on the packages
or on the labels affixed thereto; or
(b) the number of packages, showing an error in
deficiency greater than the maximum permissible
error, is more than [the number specified in
Column 3 of the Table in the ninth Schedule,]
(c) any such package shows an error in deficiency
greater than twice the maximum permissible error,
the Director or the authorized person shall, if for
good and sufficient reason, requested by the
manufacturer or packer or his authorized agent, so
to do, take out as soon as may be practicable,
fresh samples and carry out fresh tests in
accordance with the provisions of these rules and
where fresh tests made, the Director or the
authorized person, as the case may be, shall
collect by way of reimbursement, from the
manufacturer or packer, such sum, not exceeding
rupees [five thousand] as is, in his opinion,
commensurate with the services so rendered:
Provided that where fresh tests are carried out, no
packages contained in the batch, which was
previously tested under this rule, shall be sold or
distributed by the manufacturer or packer, as the
case may be, unless the provisions of sub-rule (5)
or as the case may be, sub-rule (6), are complied
with.
23. Rule 25 speaks about action to be taken on
completion of the examination of the packages at the
premises of the manufacturer or packer and rule 26
deals with the action to be taken with regard to the
packages examined at the premises of the wholesale
dealer or retail dealer. Sub-Rule (1) of Rule 25 and sub
rule (2) and (3) of Rule 26 of the Packaged Commodities
Rules which are relevant for the present discussion are
reproduced herein below in a comparative table :-
Rule 25.Action to be taken on Rule 26. Action to be taken with
completion of examination of regard to packages examined at the
packages at the premises of the premises of the wholesale dealer or
manufacturer or the packer.- retail dealer.-
(1). If it appear from the report (2) Where any test is carried out in
referred to in sub-rule (3) of Rule 24 pursuance of the provisions of sub-
that- rule (1), the Director or the
authorized person shall verify
(a) the statistical average of the net whether the quantity contained in
quantity contained in the packages the package corresponds to the
drawn as samples under that rule is quantity declared on such package
lesser than the quantity declared on or any label affixed thereto, and
the packages or on the labels affixed whether the quantity contained in
thereto, or the package is less than the
declared quantity, whether the
(b) the number of packages, showing deficiency is more than twice the
an error in deficiency greater than maximum permissible error in
the maximum permissible error, is relation to that commodity.
more than [the number specified in
Column 3 of the Table in the Ninth
Schedule, or] (3) Whether the Director or the
authorized person finds on a test
(c) any such package shows an error carried out under this rule that the
in deficiency greater than twice the error in deficiency in any package
maximum permissible error, or kept or stored for sale, distribution
or delivery at the premises of the
(d) any such package does not bear retail or wholesale dealer, is more
thereon or on a label affixed thereto than twice the maximum permissible
the declarations to be made under error in relation to that commodity
these rules, he shall seize such package and take
appropriate action against the retail
the director or the authorized dealer or the wholesale dealer, as
person shall take punitive action in the case may be, in accordance with
accordance with the provisions of the provisions of the Act:
the Act, against the manufacturer,
or as the case may be, the Provided that where the package
packer[***]: bears the legend "when packed", no
punitive action shall be taken
Provided that no such punitive against the retail dealer or
action shall be taken if fresh tests wholesale dealer if the Director or
are carried out under sub-rule (4) of the authorized person is satisfied
Rule 24, but if after such fresh tests after necessary tests, that the
any such error or omission as is deficiency in the quantity contained
referred to in this sub-rule is in the package is due to
detected, the Director or the environmental conditions.
authorized person shall take
appropriate punitive action in
accordance with the provisions of
the Act against the manufacturer or,
as the case may be, the packer.
24. In all the aforesaid relevant portion of the Rules
the phrase 'maximum permissible error' is referred in
respect of an error in deficiency. Rule 2 clause (i)
defines the term "maximum permissible error." It reads
as under :-
2 (i) "Maximum permissible error" :-
"maximum permissible error", in relation to the quantity
[including the quantity declared to be given free by the
manufacturer/packer] contained in an individual package, means
an error in deficiency or excess which, subject to the provisions
of these rules, does not exceed-
(i) In relation to the commodities specified in the First
Schedule, the limits of error specified in that
Schedule;
(ii) In relation to commodities not specified in the First
Schedule, the limits of error specified in the Second
Schedule;
25. It thus appears from the above definition
'maximum permissible error' is prescribed as per the
limits of error specified in First Schedule or Second
Schedule. So far as the product toilet soap is concerned,
said product is mentioned in First Schedule at Sr. no.17
and in toilet soap in all quantities maximum permissible
error prescribed as 3.0%. It is thus clear that, if any
such package examined by the authorities shows an
error in deficiency greater than twice the maximum
permissible error, the director or the authorized person
can take a punitive action in accordance with the
provisions of the Act against the manufacturer or as the
case may be. However, in terms of the provisions of rule
26 sub-rule (2) and (3) of the Packaged Commodities
Rules, even though, it is found that, error in deficiency
is more than twice the maximum permissible error in
relation to that commodity, in terms of the proviso to
sub rule (3) of rule 26, where the package bears legend
"when packed", no punitive action can be taken against
the retail dealer or wholesale dealer if the director or
authorized person is satisfied after necessary tests, that
the deficiency in the quantity contained in the package
is due to environmental conditions. Obviously, such
exemption is not prescribed in case of action to be taken
on completion of examination of the packages at the
premises of the manufacturer or packer in terms of rule
25 clause (c) if any such package shows an error in
deficiency greater than twice the maximum permissible
error.
26. So far as the letter dated 8.7.1994 issued by the
Ministry of Civil Supplies, Consumer Affairs and Public
Distribution Weights and Measures, it appears that, the
same is misconstrued by the applicants. By referring
the provisions of Rule 11 (4) of the Packaged
Commodities Rules, it is stated that, in the said letter
that implications of these provisions is that in respect of
the commodities listed in the fourth Schedule accuracy
requirement would apply only at the time of
manufacturing and packing. Therefore, in the last
paragraph of the said letter, the attention is drawn to
the provisions of the proviso appended to Rule 26 (3) of
the Packaged Commodities Rules. Thus, the conjoint
reading and cumulative effect of all the aforesaid rules
would establish that, in case of the action to be taken
on completion of the examination of the packages at the
premises of the manufacturer or packer in terms of the
report referred to in sub rule (3) of Rule 24, clauses (a)
to (d) of Rule 25 of the Packaged Commodities Rules
attract and the Directors or authorized person can take
punitive action against the manufacturer or as the case
may be, the packer, in accordance with the provisions of
law.
27. In the instant case, so far as the product Palmolive
naturals Soap (with milk cream) is concerned, as per
the net content checking data sheet dated 8.5.2002
manufacturing and year of packing of the said package
is May 2002 i.e. 5/2002 and against net content of 75
grams, the average weight of 80 packages came to be
recorded as 74.56 grams. Prima facie, there is evidence
that average weight is less than the declared weight. It
is clear from the letter given by the applicants to the
Inspector of legal Metrology dated 28.5.2002 that date of
manufacture of Palmolive Naturals (with milk cream)
from the same batch is 3.5.2002. It is thus clear that
said package was examined within five (05) days of the
date of its manufacture. Prima facie, it appears that,
clause (a) of rule 25 of the Packaged Commodities Rules
stands attracted.
28. So far as Palmolive Naturals (Relaxing) net weight
100 grams is concerned, as per the admitted position,
the date of manufacture is 5.11.2001. As per net
content checking data sheet of this package, the average
weight came to be recorded as 92.86 grams. Prima
facie, it suggests that error in deficiency is greater than
twice the maximum permissible error.
29. The learned counsel for the applicant submits
that, considering the significant gap between the date of
manufacture of said package Palmolive Naturals Soaps
(Relaxing) and its date of examination, the soap is
bound to loose moisture over which the petitioner has
no control. Also the impact of the environmental
conditions is irrespective whether the soap is stored
within the premises or outside.
30. As discussed in the foregoing paragraphs,
considering the same, in terms of clause (c) of Rule 25
of the Packaged Commodities Rules, an error in
deficiency greater than twice the maximum permissible
error is considered. So far as immunity granted to
wholesale dealer or retail dealer in terms of the
provisions of proviso appended to sub rule (3) of Rule 26
of the Packaged Commodities Rules is concerned, said
immunity from prosecution is not extended to the
manufacturer or packer.
31. It is well settled that first principle of
interpretation of the statute in every system is the literal
rule of interpretation. Purposive interpretation can only
be restored to when the plain words of statute are
ambiguous. There is no ambiguity in Rule 25 of the
Packaged Commodities Rules and, therefore, a literal
interpretation must be resorted to.
32.
It is submitted that, there was non-compliance of
sub-rule (4) of Rule 24 of the Packaged Commodities
Rules i.e. though the applicants had requested the
complainant to take out a fresh sample and carry out
fresh test in accordance with the provisions of these
rules, said request was not considered. By the letter
dated 11.5.2002 the complainant has called upon the
applicants to tender its explanation in respect of
deficiencies as noted during the course of the
examination of the aforesaid products and in response
to the said letter, the petitioner has tendered its
explanation to the complainant on 28.5.2002 in writing.
33. On careful perusal of the said explanation dated
28.5.2002 I do not find that the applicant has
requested the complainant in any manner to take fresh
samples and carry out fresh tests in accordance with
the provisions of the Rules. Even, at the time of
examination of and determination of the quantity at the
premises of the applicant's/manufacturer on 8.5.2002,
no such request was made by the applicants to the
complainant when copy of net content checking data
sheet was signed by the person authorized by the
applicants on 8.5.2002, itself. It is for the first time in a
letter dated 8.7.2002 such a request was made by the
applicants. Said request is also not made in accordance
with the provisions of sub-rule (4) of Rule 24 of the
Packaged Commodities Rules, but, it is requested that
samples from the running line at the time of
manufacture may be taken for carrying out the test.
Whether such a request is an after thought request or
not is to be considered by the Trial Court during the
course of the trial.
34. Thus, the allegations made in the complaint, in my
considered opinion, is prima facie justifiable and based
upon the adequate evidence in terms with the
mandatory provisions of the Standards Act, Packaged
Commodities Rules and Enforcement Act. In view of the
above discussion, I proceed to pass the following order.
O R D E R
I. Criminal Application is hereby dismissed.
II. Rule discharged.
III. The applicants shall appear before the Trial
Court on 4.1.2017 and after appearance of
the applicants, the Trial Court shall dispose
off the case in accordance with law.
sd/-
( V.K. JADHAV )
JUDGE
...
aaa/-
