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Kandukuri Garments v/s Inspector of Legal Metrology

    Criminal Petition No. 158 of 2018
    Decided On, 04 April 2018
    At, High Court of Karnataka
    By, THE HONOURABLE MR. JUSTICE ARAVIND KUMAR
    For the Appearing Parties: Sumathi, A.M. Surya Prakash, Sandesh J Chouta, Advocates.


Judgment Text
1. Sri.Sandesh J.Chouta, learned SPP appears on advance notice for respondent.

2. Heard Smt.Sumathi, learned counsel appearing on behalf of Sri.Surya Prakash, appearing for petitioners and learned SPP appearing for respondent. Perused the records.

3. Petitioners are seeking quashing of the proceedings pending in C.C.No.984/2017 on the file of Senior Civil Judge and JMFC, Tiptur, Tumkur District for having initiated proceedings against them for the offence punishable under Section 36 read with Rule 4, 6(1)(c) of Legal Metrology (Packaged Commodities) Rules, 2011, (hereinafter referred to as "Rules, 2011",) and Section 18 of the Legal Metrology Act, 2009, (hereinafter referred to as "Act").

4. Petitioner No.1 is manufacturers of shirts and are being sold by packaging the said shirts in transparent polythene cover. Petitioner Nos.2 to 6 are the directors of Petitioner No.1-company of Respondent-authority visited M/s.Oswal Textorium, Distributor, B.H.Road, Tiptur, on 04.03.2017 and seized five pre-packaged packages of cotton shirts on which the year and month of manufacturing were not declared on the pack and as such a notice under Section 48 of the Act, for compounding the said offence was issued to petitioners alleging that said violations constitute an offence under Section 18 of the Act, read with Rule 6(1) of Rules, 2011, and same being punishable under Section 36 of the Act and said offence being compoundable under Section 48 of the Act, option was given to petitioners to compound the offence vide notice dated 04.03.2017 vide Annexure-D. Likewise, first petitioner was also issued with notice, whose premises was also inspected by respondent-authority. After having taken time to reply to the said show cause notice by communication dated 30.03.2017 vide Annexure-J, reply was issued on 06.05.2017 vide Annexure-L contending that they did not pack the garments to be sent to third parties and only when third parties approaches them for purchasing shirts or commodities, same would be put in a plastic cover for safety and it is not a packaged commodity. Hence, they contended that there is neither an offence made out against petitioners nor they are required to compound the offences. Hence, they sought for withdrawal of show cause notice. It is thereafter, respondent-authority has issued one more clarification-cum-final notice dated 24.05.2017 calling upon the petitioners to get the offences compounded. Respondent thereafter has filed a private complaint under Section 200 Cr.P.C before Senior Civil Judge and JMFC, Tiptur against petitioners and five (5) others, who has ordered for registering the complaint and issued notice to accused persons. Hence, petitioners are before this Court for quashing of said proceedings.

5. It is the contention of Smt.Sumathi learned counsel appearing for petitioners that Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Legal Metrology Division by communication dated 16.12.2016 has clarified that garments sold in loose form in retail stores would not attract the provisions of Rules, 2011, and as such, continuation of proceedings against petitioners for having sold shirts in loose form would not be an offence and as such, question of either getting the offences compounded or undergoing the ordeal of trial does not arise. Hence, she prays for quashing of the proceedings.

6. She has also brought to the notice of this Court the communication dated 15.05.2017 issued by President of The Clothing Manufacturers Association of India, whereunder there is a reference to Trade Advisories dated 16.12.2016 issued by Ministry of Consumer Affairs, Food and Public Distribution, Department of Consumer Affairs, Legal Metrology Division, vide Annexure-B, to contend that loose garments sold even by a retail stores would not attract the provision of Rules, 2011. Hence, she prays for quashing of proceedings.

7. Learned counsel appearing for petitioners has also relied upon the judgment of Hon'ble Apex Court in the case of State of Maharashtra and Ors. v. Subhash Arjundas Kataria, (2012) AIRSCW 756 in support of her submission and to support her contention and contend that issue relating to expression "commodity in packaged form" is now under consideration before larger bench and till decision of the Apex Court in that regard is rendered this petition be admitted and proceedings be stayed.

8. Per contra, Sri Sandesh J.Chouta, learned State Public Prosecutor appearing for respondent-authority would support the initiation of prosecution against petitioners.

9. Having heard the learned advocates appearing for parties and on perusal of records it would disclose that "pre-packaged commodity" has been defined under Section 2(l) of Legal Metrology Act, 2009, and it reads as under:

"2.(l) "pre-packaged commodity" means a commodity which without the purchaser being present is placed in a package of whatever nature, whether sealed or not, so that the product contained therein has a pre-determined quantity;"

Section 18 of the Act mandates that a declaration has to be made on a pre-packaged commodity and no person would be entitled to 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.

10. By virtue of power vested under sub- Section (2) of Section 52 of the Act, the Central Government has prescribed the Rules for packaged commodities known and called as 'The Legal Metrology (Packaged Commodities) Rules, 2011'. Rule 6(1) mandates that every package shall bear thereon or on label securely affixed thereto declaring the name and address of manufacturer, or where the manufacturer is not the packer as prescribed under Clause (a) to (g) of sub-rule (1) Rule 6. Noncompliance of said Rule attracts penal provision namely Section 36 of the Act. The offence under Section 36 of the Act is a compoundable offence as indicated in Section 48 of the Act. It is in this background, contention of learned counsel for petitioners requires to be examined.

11. Twelfth edition of Concise Oxford Dictionary defines the word 'loose' as under:

"loose/lu:s/adj.1 not firmly or tightly fixed in place. not held, tied, or packaged together. not bound or tethered. (of the ball in a game) in play but not in any player's possession. 2 not fitting tightly or closely. 3 not dense or compact. (of play, especially in rugby) with the players far apart. 4 relaxed; physically slack. not strict or exact. careless and indiscreet: loose talk. 5 dated promiscuous: a loose woman. n. (the loose) Rugby loose play. v.1 set free. untie; unfasten. relax (one's grip). 2 (usu. loose something off) discharge; fire. PHARSES hang loose informal, chiefly N.Amer. remain calm and untroubled. on the loose having escaped from confinement."

12. A bare reading of the above definition would clearly indicate that where the commodity is not packaged together or tethered or not dense or compact would be termed as a 'loose' commodity. The pre-packaged commodity as defined under Section 2(l) of the Act, which is extracted herein above, would leave no manner of doubt that where the commodity is placed in a 'package' cannot fall outside the purview of said definition. The Hon'ble Apex Court in the case of Whirlpool of India Limited vs. Union of India and others, (2007) 14 SCC 468 while examining a similar contention namely, as to whether refrigerator would be covered under the expression 'pre-packaged commodity' has observed as under:

"6. A glance at this provision and more particularly to Explanation I would suggest that the refrigerator is covered under the term "pre-packed commodity". Even if the package of the Refrigerator is required to be opened for testing, even then the refrigerator would continue to be a "prepacked commodity". There are various types of packages defined under the Rules and ultimately Rule 3 specifically suggests that the provisions of Chapter II would apply to the packages intended for "retail sale" and the expression "package" would be construed accordingly."

13. A pre-packaged commodity is one where it is secured by packaging by whatever means it is called. Thus, in order to enjoy the benefit flowing from Trade Advisory issued by the Ministry of Consumer Affairs, whereunder it has been clearly clarified by Government of India that mandatory labeling requirements for pre-packaged commodities would not be applicable to garments sold in loose form and will have to be understood in the manner for the purpose of such Trade Advisory having been issued and in other manner.

14. A perusal of said Trade Advisory dated 16.12.2016 vide Annexure-B would clearly disclose that where the garments are sold in loose form even in a retail stores, the labeling requirement as prescribed under Rules, 2011, would not be attracted. In other words, if the commodity is sold without pre-packaging in loose form exclusive of polythene cover, then only it can be termed or construed as a 'loose garment' or a 'loose commodity' or in other words, the commodity is being sold in loose form. On the other hand, if the said commodity is pre-packaged for whatsoever reasons including the reasons canvassed by Smt.Sumathi, learned counsel appearing on behalf of petitioners, viz., in order to protect the commodity from dust and as such it had been pre-pack

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aged, would not absolve the said commodity from the purview from the definition clause of 2(l) of the Act, as well as Rule 6 of Rules, 2011. 15. It also requires to be noticed that judgment relied upon by the learned counsel appearing for petitioners would not come to the rescue of petitioners for the simple reason that, the issue under consideration before the Hon'ble Apex Court in Subhash Arjundas Kataria was with reference to Section 2(b) of Standards of Weights and Measures Act, 1976, vis-a-vis Rule 2(l) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, insofar as it related to sun glasses, which was being sold and other goods as indicated thereunder. In that view of the matter, judgment relied upon by the learned counsel appearing for petitioners would not come to the assistance of petitioners in the present case. 16. In that view of the matter, contention of learned counsel for petitioners cannot be accepted. Hence, I do not find any good ground to entertain this petition and hence, same stands rejected.
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