Bombay High Court

M/S Yum Restaurants (India) Pvt. ... vs The State Of Maharashtra, At The ... on 17 November, 2017

Bench: A.S. Chandurkar

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          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

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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,

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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

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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

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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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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

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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.