Karnataka High Court

Hindustan Unilever Limited vs The State Through Public ... on 24 May, 2022

Bench: M.Nagaprasanna

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 24TH DAY OF MAY, 2022

                      BEFORE

   THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

       CRIMINAL PETITION No.3689 OF 2022

BETWEEN

1. HINDUSTAN UNILEVER LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED ADDRESS
AT `UNILEVER HOUSE',
B.D.SAWANT MARG
CHAKALA, ANDHERI (EAST)
MUMBAI-400099
REPRESENTED HEREIN BY
Ms.DIVYA SRIKANTH
AGE: 32 YEARS

2. Ms.KALPANA JAISINGH MORPARIA
AGED 72 YEARS
RESIDING AT A52, AHUJA TOWERS CHS,
RAJABHAU DESAI MARG
PRABHADEVI
MUMBAI-400 025
(INDEPENDENT DIRECTOR-
HINDUSTAN UNILEVER LIMITED)

3. MR.DEVOPAM NARENDRA BAJPAI
@ DEVOPAM N.B.
AGED 56 YEARS
RESIDING AT 805/806,
MEGHDOOT TOWER, A WING,
LOKHANDWALA
BACK ROAD, OPP. JOGGING TRACK,
LOKHANDWALA,
                            2



AZAD NAGAR,
ANDHERI WEST,
MUMBAI-400 053
(WHOLE TIME DIRECTOR-
HINDUSTAN UNILEVER LIMITED)

4. DR.ASHISH GUPTA
AGED 55 YEARS
RESIDING AT 1734 WEBSTER STREET,
PALO ALTO,
CA 94301, USA

ALSO AT:
HINDUSTAN UNILEVER LTD.,
`UNILEVER HOUSE',
B.D.SAWANT MARG
CHAKALA -ANDHERI (EAST)
MUMBAI-400 099
(INDEPENDENT DIRECTOR)

5. MR.OM PRAKASH BHATT
AGED 70 YEARS
RESIDING AT FLAT NO.3,
SEAGULL,
CARMICHAEL ROAD,
MUMBAI -400 026
(INDEPENDENT DIRECTOR -
HINDUSTAN UNILEVER LIMITED)

6. MR.LEO PURI
AGED 60 YEARS
RESIDING AT CONDOMINIUM
37 D-L, JAGAMOHANDAS MARG
NAPEAN SEA ROAD,
MUMBAI-400 037
(INDEPENDENT DIRECTOR-
HINDUSTAN UNILEVER LIMITED)

7. MR.SRINIVAS PATHAK
AGED 50 YEARS
RESIDING AT 47TH FLOOR, 4704
TOWER 5, CRESCENT BAY,
JERBAI WADIA ROAD,
                           3



MAHATMA PHULE EDUCATIONAL
SOCIETY, PAREL,
MUMBAI -400012
(FORMER DIRECTOR-
HINDUSTAN UNILEVER LIMITED)

8. MR.SANJIV MISRA
AGED 73 YEARS
RESIDING AT 1541, ATS VILLAGE
NOIDA EXPRESSWAY, SECTOR 93-A,
GAUTHAM BUDDHA NAGAR,
NOIDA -201304
(INDEPENDENT DIRECTOR-
HINDUSTAN UNILEVER LIMITED)

9. MR.SANJIV SOSHIL MEHTA
AGED 61 YEARS
RESIDING AT E 5703
WORLD CREST, SB ROAD,
NEAR KAMLA MILL, LOWER PAREL
MUMBAI-400 013
(MANAGING DIRECTOR & CEO-
HINDUSTAN UNILEVER LIMITED)

10. MR.WILHELMUS ADRIANUS
THEODORUS UIJEN
@ WILHELMUS ADRIANUS TU
AGED 45 YEARS
RESIDING AT SIGNIA ISLES
APARTMENT 902, G BLOCK
BANDRA KURLA COMPLEX
OPP. TRIDENT HOTEL
MUMBAI-400 051
(WHOLE TIME DIRECTOR - SUPPLY CHAIN-
HINDUSTAN UNILEVER LIMITED)          ..PETITIONERS

(BY SRI.SANDESH J.CHAUTA, SENIOR COUNSEL ALONG WITH
SRI.SANDEEP HUILGOL, ADVOCATE)

AND

THE STATE THROUGH
PUBLIC PROSECUTOR
                               4



HIGH COURT OF KARNATAKA
INSPECTOR OF LEGAL METROLOGY
NEW THARAGUPET SUB-DIVISION,
CORPORATION BUILDING,
MINERVA CIRCLE, VV PURAM,
BANGALORE -560 004.                     .. RESPONDENT

(BY SRI.K.S.ABHIJITH, HCGP)


        THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., BY THE ADVOCATE FOR THE PETITIONERS PRAYING
TO   PASS     ORDERS:   A.   QUASHING   THE   ORDER       DATED
19.04.2021 PASSED BY THE XXIV ACMM, BANGALORE IN
C.C.NO.10291/2021 TAKING COGNIZANCE OF THE OFFENCE
ALLEGEDLY COMMITTED BY THE PETITIONERS UNDER THE
LEGAL METROLOGY ACT, 2009, R/W THE LEGAL METROLOGY
(PACKAGED COMMODITIES) RULES, 2011, AND ALL FURTHER
PROCEEDINGS AND ORDERS IN THE SAID CASE (ANNEXURE-
A); B. QAUSHING THE COMPLAINT IN C.C.NO.10291/2021
FILED    BY   THE   RESPONDENT    BEFORE    THE    XXIV   ACMM,
BANGALORE ON 05.03.2021 AND ALL THE PROCEEDINGS
INITIATED IN THE SAID CASE PURSUANT TO THE COMPLAINT
(ANNEXURE-B).


        THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:


                             ORDER

The petitioners/accused 1 to 10 in

C.C.No.10291/2021 called in question the proceedings

so instituted for the offence punishable under the

Legal Metrology Act, 2009 (`Act' for short) and the

Legal Metrology (Packaged Commodities) Rules, 2011.

2. Heard learned Senior counsel Sri.Sandesh J.

Chouta along with Sri.Sandeep Huilgol, learned

counsel appearing for the petitioners and learned

HCGP appearing for the State.

3. Brief facts leading to filing of the present case

as presented by the prosecution are as follows:

The allegation against the petitioner is that a

publication on 10.09.2020 in a newspaper "Vijayavani"

the price of Rin Detergent, manufactured by the

petitioner is published, the quantity is not, in the said

advertisement on the ground that the said

advertisement was contrary to the provisions of the

Legal Metrology Act, show cause notices were issued

in terms of the Act on 10.09.2020, 30.11.2020 and

21.12.2020. The notices sought reply from the hands

of the petitioners as well as liberty to compound the

offence, if they so desire. Petitioners did not submit

their reply to the show cause notices so issued. On

the reply not being submitted, the proceedings are

initiated by registration of crime for the offence

punishable under Section 18(2) of the Act and

provisions of the Rules. On filing of the complaint,

cognizance is taken by the learned Magistrate by his

order dated 19.04.2021. It is the said order that is

called in question in this petition.

4. The learned Senior counsel would submit that

the issue in the subject petition stands covered by two

Judgments rendered by this court in the case of

Ms.Shalini K., Vs The Inspector of Legal Metrology and

anr in W.P.No.51116/2017 and connected cases

disposed on 26.08.2021 and Mr.Aditya Narayan

and others Vs The State in Criminal Petition

No.7740/2020 c/w Criminal Petition

No.7744/2020 disposed on 02.03.2022 and would

submit that the petition be disposed following both the

orders passed by this court considering the very

provisions of the Act.

5. On the other hand, learned HCGP appearing

for the respondent-State would though admit that the

petition stands covered by the aforesaid Judgments,

would seek liberty to initiate appropriate proceedings

against the petitioners in accordance with law. He

would submit that he has no objection to dispose the

petition reserving such liberty.

6. The afore narrated facts are not in dispute

and the Judgments supra stands covered to the issues

in the petition is not in dispute. This court in the case

of Shalini (supra) has held as follows:

"12. Therefore, it becomes necessary to consider the offences that are alleged against the petitioners. The offences alleged against the petitioners are violations of Sections 28, 29 and 31 of the Act and in terms of Section 49(1) of the Act each and every Director of the Company is contended to be deemed to be Director and a criminal complaint is registered. The prayer in the complaint is to take cognizance against the accused for offences punishable under Sections 28, 29 and 31 of the Act. Sections 28, 29 and 31 of the Act, read as follows:-

           "28.       Penalty       for    making          any
     transaction,        deal       or     contract         in

contravention of the prescribed standards,-

Whoever makes any transaction, deal or contract in contravention of the standards of weights and measures specified under Section 10 shall be punished with fine which may extend to ten thousand rupees and for the second or subsequent offence, with imprisonment for a

term which may extend to one year, or with fine, or with both.

29. Penalty for quoting or publishing, etc., of non-standard units. - Whoever violates Section 11 shall be punished with fine which may extend to ten thousand rupees and, for the second or subsequent offence, with imprisonment for a term which may extend to one year, or with fine, or with both.

        ...             ...              ...           ...
        31.     Penalty       for   non-production      of

documents. etc. - Whoever, being required by or under this Act or the rules there under to submit returns, maintain any record or register, or being required by the Director or the Controller or any legal record or register, or being required by the Director or the Controller or any legal Metrology officer to produce before him for inspection any weight or measure or any document, register or other record relating thereto, omits or fails without any reasonable excuse, so to do, shall be punished with fine which may extent to five thousand rupees and for the second or subsequent office, with

imprisonment for a term which may extend to one year and also with fine."

Section 28 deals with penalty for making any transaction, deal or contract in contravention of the prescribed standards. Section 29 deals with penalty for quoting or publishing non-standard units. Section 31 deals with penalty for non- production of documents. It is also alleged that the petitioners have violated Section 10 and sub- section (1) of Section 11 which read as follows:-

"10. Use of weight or measure for particular purpose, - Any transaction, dealing or contract in respect of any goods, class of goods or undertakings shall be made by such weight, measure or number as may be prescribed.

11. Prohibition of quotation, etc. otherwise than in terms of standard units of weight, measure or numeration. - (1) No person shall, in relation to any goods, things or service, -

(a) quote, or make announcement of, whether by word or mo9uth or otherwise, any price or charge, or

(b) issue or exhibit any price list, invoice, cash memo or other documents, or

(d) indicate the net quantity of a pre-packaged commodity, or

(e) express in relation to any transaction or protection, any quantity or dimension.

otherwise than in accordance with the standard unit of weight, measure or numeration.

Section 48 deals with compounding of offences and Section 50 deals with appeal and they read as follows:

"48. Compounding of offence.- (1) Any offence punishable under section 25, sections 27 to 39, sections 45 to 47, or any rule made under sub-section (3) of section 52 may, either before or after the institution of the prosecution, be compounded, on payment for credit to the Government of such sum as may be prescribed.

(2) The Director or legal metrology officer as may be specially authorised by him in this behalf, may compound offences punishable under section 25, sections 27 to 39, or any rule made under sub-section (3) of section 52.

(3) The Controller or legal metrology officer specially authorised by him, may compound offences punishable under section 25, sections 27 to 31, sections 33 to 37, sections 45 to 47, and any rule made under sub-section (3) of section 52:

Provided that such sum shall not, in any case, exceed the maximum amount of the fine, which may be imposed under this Act for the offence so compounded.

(4) Nothing in sub-section (1) shall apply to person who commits the same or similar offence, within a period of three years from the date on which the first offence, committed by him, was compounded.

Explanation.--For the purposes of this sub- section, any second or subsequent offence committed after the expiry of a period of three years from the date on which the offence was previously compounded, shall be deemed to be a first offence.

            (5)    Where     an    offence      has       been
      compounded       under      sub-section      (1),    no

proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded.

(6) No offence under this Act shall be compounded except as provided by this section."

"50. Appeals.- (1) Subject to the provisions of sub-section (2), an appeal shall lie,--

(a) from every decision or order under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-section (3) of section 52 by the legal metrology officer appointed under section 13, to the Director;

(b) from every decision or order made by the Director of Legal Metrology under sections 15 to 20, section 22, section 25, sections 27 to 39, section 41 or any rule made under sub-section (3) of section 52, to the Central Government or any officer specially authorised in this behalf by that Government;

(c) from every decision given by the Controller of Legal Metrology under delegated powers of Director Legal Metrology to the Central Government;

(d) from every decision given or order made under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any rule made under sub-section (3) of section 53 by any legal metrology officer appointed under section 14, to the Controller; and

(e) from every decision given or order made by the Controller under sections 15 to 18, sections 23 to 25, sections 27 to 37, sections 45 to 47 or any

rule made under sub-section (3) of section 53 not being an order made in appeal under clause (d), to the State Government or any officer specially authorised in this behalf by that Government.

(2) Every such appeal shall be preferred within sixty days from the date on which the impugned order was made:

Provided that the appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the said period of sixty days, permit the appellant to prefer the appeal within a further period of sixty days.

(3) On receipt of any such appeal, the appellate authority shall, after giving the parties to the appeal, a reasonable opportunity of being heard and after making such inquiry as it deems proper, make such order, as it may think fit, confirming, modifying or reversing the decision or order appealed against or may send back the case with such direction as it may think fit for a fresh decision or order after taking additional evidence, if necessary.

(4) Every appeal shall be preferred on payment of such fees, as may be prescribed.

(5) The Central Government or the State Government, as the case may be, may on its own motion or otherwise, call for and examine the record of any proceeding including a proceeding in appeal in which any decision or order has been made, for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such orders thereon as it may think fit:

Provided that no decision or order shall be varied under this sub-section so as to prejudicially affect any person unless such person has been given a reasonable opportunity of showing cause against the proposed action."

(emphasis supplied)

Compounding of offences is a remedy that is available once offences punishable under Sections 27 to 39 of the Act are alleged against any accused. A remedy of appeal is also

available to an accused for any order passed under Sections 15 to 20, 22, 25, 27 to 39 and 41 of the Act or any Rule made thereunder. Therefore, the dual remedy that is available once an offence is alleged is that, one can compound the offence and the other, to file an appeal against an order that would be passed. The petitioners in these cases were in fact summoned to compound the offences though no order was passed either accepting the reply or rejecting it. Therefore, in the light of the remedy of appeal being available in terms of Section 50 of the Act, once offences are alleged against the petitioner under Sections 28, 29 and 31 of the Act, it was obligatory on the part of the respondents to have passed an order, for the petitioners to avail the remedy of filing an appeal under Section 50 of the Act, as the offences alleged are of offences against which an appeal under Section 50 of the Act would encompass. By not passing an order on the reply given to the notice/show cause notice by the petitioners, it has rendered the remedy of appeal under Section 50 of the Act as illusory or superfluous. Silence on the part of the respondents cannot be

construed to be an order that can be passed, which would become applicable under Section 50 of the Act. The order must be in writing for the petitioners to avail of the remedy of appeal under Section 50 of the Act. It is a liberty granted to the petitioners and the like under the Act; availing of it or not, is the choice of the petitioners but passing an order either accepting the reply or rejecting it, is an obligation on the part of the State performing its functions under the Act. It is only after an order being passed by the Appellate Authority either rejecting or allowing the appeal, registration of a criminal case can take place. Admittedly, no order considering the reply of the petitioners is passed in these cases and as such, the petitions deserve to succeed in part and the matter has to be remitted to the hands of the respondents to act in accordance with law."

7. The other Judgment in the case of Aditya

Narayan follows the earlier quoted Judgment.

Therefore the issue that is raised by the petitioners

insofar as it concerns filing of appeal stands covered

by the aforesaid Judgments.

8. The other order that is called in question is

one of taking cognizance. The order taking

cognizance by the learned Magistrate reads as follows:

Date: 05.03.2021 -

The Inspector of Legal Metrology, New Tharagupet Sub-Division, Corporation Building, Minerva Circle, V.V.Puram, Bangalore has filed the complaint against the A1 to 10 for an offence punishable under Section 49 of the Legal Metrology Act 2009.


                          For Order
            Complainant is present.             Check
      and put up by 19.04.2021.
            Perused           the          complaint,

cognizance of the offence U/S u/s.49 of the Legal Metrology Act 2009 is taken. The complainant is a public

servant. Hence sworn statement of complainant is dispensed with. Prima facie case made out. Hence cognizance for the offence U/S u/s.49 of the Legal Metrology Act 2009 is taken against A1 to 10. Register the case in Register No.III. Issue process to A1 to 10 by RPAD returnable by 14.06.2021.

Sd/-

(19.04.2021) XXIV ACMM

9. The complaint is registered for the offences punishable under Section 18(2) of the Act read with Rule 31(1). The nature of offence shown in the complaint is as follows:

SL.NO.   SECTION        AND     PENAL   COMPOUNDING
         NATURE           OF    SECTION FEE
         OFFENCE
1.       Section 18(2) r/w      Rule 32   Rs.5,000/-
         rule          31(1)    of
         Compliance        of   LM(PC)
         advertisement     in   Rules
         respect   of    pre-   2011
         packaged commodity
         by manufacturer.




     10.     Cognizance    is   taken   for    the    offence

punishable under Section 49 of the Act which is not

the offence under which the petitioners are sought to

be prosecuted. Therefore, the order taking

cognizance demonstrates blatant non-application of

mind on the part of the learned Magistrate, as

registration of crime and issuing of summons is a

serious matter and not a frolicsome act as

demonstrable in the case at hand. Therefore, the

order of taking cognizance is rendered unsustainable.

For the aforesaid reasons, the following:

ORDER

The petition is allowed. Order dated 19.04.2021