Kerala High Court
Prakashan N.V vs Union Of India on 15 June, 2021
WP(C).12158/21 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
WP(C) NO. 12158 OF 2021
PETITIONER/S:
1.PRAKASHAN N.V.
211
AGED 51 YEARS,S/O.GOVINDAN KAIRALI JEWELLERY,
THANGALS ROAD KONDOTTY, MALAPURAM-673638.
2. SIVADASAN N., AGED 60 YEARS, S/O.RARICHAN, SB
JEWELLERY, KAMMATH LANE, KOZHIKODE-673001.
3. SIVAKUMAR, S/O.AYYANPERUMAL, A.S.JYOTHI
JEWELLERY, MUKKU ROAD, KILIMANOOR P.O.,
THIRUVANANTHAPURAM-695601.
4. GANESH K., S/O.P.KRISHNAN ACHARY, P.K.JEWELERY,
MAIN ROAD, ATTINGAL P.O., THIRUVANANTHAPURAM-
695101.
5. VIJAYAGOPAL K., S/O.KOLLAPPAN ACHARY,
CHEMBAKAVALLE JEWELLERY, TC.38/2475, PUTHEN
CHALAI, TVPM.685036.
BY ADV A.CHANDRA BABU
RESPONDENT/S:
1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC
DISTRIBUTION, DEPARTMENT OF FOOD & PD, KRISHI
BHAVAN, NEW DELHI, PIN-110001.
ADDL.2 THE DIRECTOR GENERAL, BUREAU OF INDIAN STANDARDS
(BIS), HEAD QUARTER, 9 BAHADUR SHAH ZAFAR MARG,
NEW DELHI-110002, INDIA.
WP(C).12158/21 2
OTHER PRESENT:
ASG SRI.P.VIAJAYAKUMAR
& S.KRISHNA, CGSC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.06.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).12158/21 3
V.G.ARUN, J.
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W.P(C).No.12158 of 2021
-----------------------------------------------
Dated this the 15th day of June, 2021
JUDGMENT
The petitioners claim to be traditional goldsmiths, engaged
in the manufacture, repair, alteration and sale of gold ornaments.
The petitioners are conducting their business on the strength of
licences obtained from the local authorities. According to the
petitioners, since they resort to the traditional methods for
making gold ornaments, the ratio of gold in their ornaments will
not be perfect when compared with machine made ornaments.
2. By Exhibit P1 order dated 15.1.2020, the Central
Government has made the hallmarking of precious metal articles
of gold and its sale through certified outlets, compulsory. The
relevant portion of Ext P1 order reads as under;
"Compulsory selling of precious metals articles
of gold marked with Hallmark through certified
sales outlets.-(1) Precious metal articles of gold notified
to be marked with hallmark in the notification of the
Government of India, Ministry of Consumer Affairs, Food
and Public Distribution, Department of Consumer Affairs
number S.O.2421(E), dated the 14th June 2018, shall be
sold only by registered jewellers through certified sales
outlets, after fulfilling the terms and conditions of
certificate of registration as specified in regulation 5 of the
Bureau of Indian Standards (Hallmarking) Regulations,
2018.
(2) Precious metal articles specified in solemn (2) of
the Table below, shall conform to the corresponding Indian
Standard given in the column (3) of said Table and shall
bear hallmark under a certificate of registration from the
Bureau of Indian Standards as per the Bureau of Indian
Standards (Hallmarking) Regulations, 2018."
3. The time fixed for compulsory hallmarking of gold
ornaments was extended up to 1.6.2021 vide Ext P2 and
thereafter, till 15.6 2021. The writ petition is filed seeking a
direction to the Central Government to further extend the time for
implementation of Exhibit P1 order. The request for extension is
made on the ground of absence of sufficient facilities for
hallmarking in the State. The present pandemic situation and the
resultant lock down are also highlighted as reasons for seeking
extension.
4. Heard Sri.Nemom Chandra Babu, learned counsel for the
petitioners, Smt.S. Krishna, learned Central Government Standing
Counsel representing the ASG and Sri.Manoj Ramaswamy, learned
standing counsel for the Bureau of Indian Standards.
5. Learned counsel for the petitioners submitted that the
compulsion to obtain licence and to get their ornaments
hallmarked before 15.6.2021 is arbitrary and unjust. It is
submitted that being semi literate traditional artesans, the
petitioners do not have sufficient knowledge or the wherewithal to
obtain certification and to get the ornaments hallmarked within
the stipulated time. According to the learned counsel, there are
very few hallmarking centres in Kerala. Moreover, failure to get
certification and hallmarking will invite penal consequences.
6. Sri.Manoj Ramaswamy submitted that sufficient time
having been granted for complying with the requirements under
Exhibit P1 notification, no further time need be granted. Refuting
the contention regarding lack of infrastructure, it is submitted that
there are 73 recognized hallmarking centres in Kerala and the
application for certification can be submitted online.
7. According to the learned CGC, no legal ground has been
made out for interfering with Exhibit P1 order of the Central
Government.
8. In order to address the grievance highlighted in this writ
petition, it is necessary to have a look at the relevant provisions of
the Bureau of Indian Standards Act, 2016 (for short, 'the Act'). The
Bureau of Indian Standards is established under Section 3 of the
Act, with its powers and functions delineated under Section 9. As
per Section 14(1) of the Act, the Central Government, after
consulting the Bureau, may notify precious metal articles or other
goods or articles as it may consider necessary to be marked with
a hallmark or standard mark in the manner specified in sub-
section (2). Section 14(2) mandates that the goods or articles
notified in sub-section (1) may be sold through retail outlets
certified by the Bureau after such goods or articles have been
assessed for conformity to the relevant standard by a testing and
marking centre recognised by the Bureau and marked with
hallmark or standard mark as the case may be. Section 14 (3)
empowers the Central Government to make it compulsory to sell
the goods notified under sub-section (1) only through certified
sales outlets after fulfilling such conditions as may be determined
by regulations. Section 15 prohibits the import, sale, exhibition
etc. of any goods or article under Section 14, except under
certification from the Bureau. Section 29(2) provides penalty for
contravention of Section 15. The penalty is imprisonment for a
term which may extend to one year or with fine which shall be
less than Rs.1,00,000/-
9. It is brought to my notice that the Bombay High Court has
granted interim relief in a similar writ petition. A perusal of the
order passed by the High Court of Bombay in W.P.No.801 of 2021
reveals that in Maharashtra, out of a total of 36 districts, there are
no hallmarking centres in 14 districts. There is only one
hallmarking centre in 11 districts, and in respect of two districts,
there are only three hallmarking centres. This lack of
infrastructure was the main reason for the Court granting interim
relief in that writ petition. The situation in Kerala is entirely
different, inasmuch as there are 73 hallmarking centres for the 14
districts.
10. The laudable objective in issuing Exhibit P1 is to ensure
the purity of gold sold through jewelries across the country.
Hence, the petitioners have to comply with the stipulations in the
order, if they want to continue their business. The Central
Government having suo motu extended the time stipulated in
Exhibit P1, the request for further extension cannot also be
acceded to. At the same time, it is a fact that jewelleries in the
State were shut down for the past many months. Going by Section
29(2) of the Act, the petitioners will be mulcted with penalty if
they conduct business without complying with the stipulations in
Exhibit P1. Considering the prevailing circumstances, it is only
appropriate to defer coercive action against the petitioners for a
short while, so as to enable them to comply with the mandatory
requirements.
11. For the reasons aforementioned, the prayer for extension
of the time for implementation of Exhibit P1 is rejected. In the
event of the petitioners submitting applications for certification as
registered jewellers and taking effective steps for hallmarking the
gold and ornaments in their possession within 15 days, coercive
action against the petitioners for non compliance of the direction
in Exhibit P1 shall be deferred for a period of one month.
The writ petition is disposed of as above.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1: COPY OF ORDER DATED 15.1.2020 ISSUED BY THE RESPONDENT.
EXHIBIT P2: COPY OF ORDER NO.S.O.3513(E), DATED 9.10.2020 ISSUED BY
THE RESPONDENT.
