Delhi High Court

M/S Standard Fireworks Pvt.Ltd. vs The State ( Nct Of Delhi ) on 13 June, 2016

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+   CRL.M.C. 1248/2016

                                      Date of Decision: June 13th, 2016

    M/S STANDARD FIREWORKS PVT.LTD.                      ..... Petitioner

                           Through:   Mr.Sachin Mittal and Mr.Anuj
                                      Saxena, Advs.

                           versus

    THE STATE ( NCT OF DELHI )                           ..... Respondents

                           Through    Mr.Kamal Kumar Ghei, APP.


           CORAM:
           HON'BLE MR. JUSTICE P.S.TEJI

    P.S.TEJI, J.

1. The present petition has been filed under Section 482 of the

Cr.P.C. for quashing the summoning order dated 16.04.2015 and for

quashing of the criminal proceedings arising therefrom in Criminal

Complaint No.156/1W/2015.

2. The case in the nutshell is that on 21.10.2014, an inspector of

Legal Metrology Department, Govt. of NCT of Delhi had visited a

shop by the name of M/s Sushil Kumar (Prop.) at T-135,T Type

Market, Sri Niwas Puri, New Delhi 110065 and inspected a packet of

Standard Brand Thunder Bomb Manufactured by M/s Standard

Fireworks (P) Ltd. 1/3, Thiruthangal Road, Sivakasi 626123, but the

customer care number was not mentioned on the said package. This

led to the filing of the complaint in question. The Trial Court vide

order dated 16.04.2015 dispensed with the examiantion of the

complainant being a public servant and on perusing the complaint and

documents and finding sufficient material on record, took cognizance

of offence under Section 18(1) and 36(1) of Legal Metrology Act,

2009 (hereinafter referred to as the 'Act') and the petitioner/accused

was summoned for 10.09.2015. Hence, the present petition has been

filed.

3. The learned counsel for the petitioner has sought quashing of

the impugned notice on the following grounds:

i) That the complaint in question is undated and the same is filed

in a cyclostyled pro forma in a most cryptic manner which is

not permissible in law;

ii) There is inherent lack of legal requirements in the complaint

filed.

iii) That the complaint was not filed by a legally authorized person

nor the complaint is accompanied by any valid authorization.

iv) That as per Rule 6 (1) (a) read with Rule 10 of The Legal

Metrology (Packaged Commodities) Rules, 2011, the only

mandatory requirement in law is that every package shall bear

thereupon a definite, plain and conspicuous declaration as to the

name and complete address of the manufacturer. It is submitted

that neither Rule 6 nor any other provision of The Legal

Metrology (Packaged Commodities) Rules, 2011 makes it

mandatory for the manufacturer to arrange for and mention the

Customer Care Number compulsorily on the product and hence,

mere non-mentioning of the Customer Care Number cannot be

said to be a ground for launching criminal prosecution against

the petitioner even under the Act and the Legal Metrology

(Packaged Commodities) Rules, 2011 especially in light of the

fact that at the relevant time, the product in question

manufactured by the petitioner contained the complete name

and postal address of the petitioner, who can be contacted for

any consumer complaint. Therefore, there was due compliance

with the requirements as required by law.

v) That no investigation of any kind as is mandated by the

notification of the Weight and Measures Department, has been

carried out by the Inspector for launching prosecution against

the petitioner and the criminal proceedings are liable to be

quashed on this sole ground.

vi) That this being the first offence of the petitioner, the same is

punishable with fine only and thus there is non application of

mind on the part of the Trial Court.

vii) That the allegation made in the complaint do not disclose any

offence punishable under Section 36(1) of the Act. It is

submitted that any violation of Section 18(1) of the Act may be

dealt only in accordance with the provisions of Rule 32(2) of

the Legal Metrology (Packaged Commodities) Rules, 2011 and

not under Section 36(1) of the Act. Section 18(1) of the Act

requires that all the packages must bear declarations whereas

Section 36(1) of the Act requires that the packages must

conform to the declarations given thereon. Thus, Section 18(1)

of the Act read with Rule 6 of the Legal Metrology (Packaged

Commodities) Rules, 2011 are not violated. Since there is no

specific provision in the Act for violation of Section 18(1) of

the Act, proceedings may be initiated for violation of Rule 6

and this comes under Rule 32(2) only but not under Section

36(1) of the Act.

viii) That mere mention of the items seized in the Inspection Memo

is not sufficient in the eyes of law which provides provisions in

a separate seizure memo to be attached, if any item is seized

with such Inspection Memo/Report.

4. I have heard the learned counsel for the parties and perused the

record. This Court is of the view that it was not incumbent upon the

Department to have carried out an investigation to find out whether a

statutory declaration was not complied with by the petitioner.

5. Sections 18(1) and 36(1) of the Legal Metrology Act, 2009 are

as under :

"18. Declarations on pre-packaged commodities. - (1) No person shall manufacture, pack, sell, import, distribute, deliver, offer, expose or possess for sale any pre-packaged commodity unless such package is in such standard quantities or number and bears thereon such declarations and particulars in such manner as may be prescribed.

36. Penalty for selling, etc., of non-standard packages. - (1) 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."

6. The contention of the petitioner that there is no requirement of

mentioning of telephone number or customer care number of the

manufacturer on the package, is having no force inasmuch as Rule

6(2) of the Legal Metrology (Packaged Commodities) Rules, 2011

clearly provides for mentioning of name, address, telephone number,

e-mail address of the person or the office which can be contacted in

case of any consumer complaint about the packaged commodity. Rule

6(2) of the Rules, 2011 is quoted as under :

"(2) Every package shall bear the name, address, telephone number, e mail address, if available, of the person who can be or the office which can be, contacted, in case of consumer complaints."

7. A bare perusal of Section 6(2) of the Rules, 2011 makes it

abundantly clear that mentioning of telephone number of the person or

the office is mandatory to be declared on the packaged commodity

and in view of the seizure memo prepared, it is apparent that no such

telephone number or the customer care number was mentioned on the

packet of fire cracker. So, there is clear violation of mandatory

declaration of Rule 6(2) of the 2011 Rules which makes out a valid

case of the respodnent against the petitioner.

8. The other grounds raised by the petitioner are matter of trial

which can be ascertained only after adducing evidence by the parties.

The contentions raised by the petitioner regarding illegality in the

proceedings; regarding non-authorization to file the complaint;