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Pepsico India Holdings Private Limited, Through Its Authorised Representative, V. Seshadri, Plantmanager v/s State of Kerala, Copy to be Served on Public Prosecutor, High Court of Judicature of Kerala at Ernakulam & Another

    CRL.MC No. 4265 of 2014

    Decided On, 21 December 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.A. ZIYAD RAHMAN

    For the Petitioners: M. Gopikrishnan Nambiar, Rajesh Batra, P. Gopinath, P. Benny Thomas, K. John Mathai, Advocates. For the Respondent: Aravind V. Mathew, Public Prosecutor.



Judgment Text

1. The petitioner is the 1st accused in S.T.No.1507 of 2014 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram. The aforesaid case was registered against the petitioner and its directors, who are accused Nos.A2 to A16 in the aforesaid complaint for the offences punishable under Section 36(1) of the Legal Metrology Act, 2009 (hereinafter called Act, 2009) read with Rules 32(1) and 32(3) of Legal Metrology (Packaged Commodities) Rules, 2011 (hereinafter called Rules, 2011). The allegations raised against the petitioner and its directors were pertaining to certain discrepancies found on the packages of soft drinks manufactured by the petitioner company, namely, MIRINDA and 7 UP.

2. The prosecution case is as follows: During the course of inspection conducted by the 2nd respondent, on 30.08.2013 at 1.10 pm in the trade premises of Best Bakery, T.C.No.31/1022/6, Pettah P.O, Thiruvananthapuram, it was found that certain pre-packaged commodities kept for sale, were not packed in compliance with the stipulations contained in Act, 2009 and the Rules, 2011. On the basis of the same, a complaint was submitted and based on the said complaint, the learned Magistrate has taken cognizance, and it is now pending as S.T. No 1507/2014.

3. This Crl.M.C. is filed by the petitioner praying to quash all further proceedings in the aforesaid complaint on the ground that even if the entire allegations contained in Annexure-A complaint are accepted for its face value, no offences as alleged are attracted.

4. Heard Sri.Rajesh Batra, learned Senior counsel appearing for the petitioner and Sri.Aravind V.Mathew, learned Public Prosecutor for the State.

5. The learned Senior counsel contends that the violations alleged against the petitioner and accused Nos.2 to 16 in the complaint would not disclose the violations of any of the said Rules. The entire proceedings are therefore a mere abuse of process of court.

6. The first violation alleged against the petitioner is that, among the seized items, MIRINDA and 7 UP did not bear the mandatory declaration of the name, address, telephone number, e-mail address, of the person who can be or the office which can be contacted, in case of consumer complaints. According to the 2nd respondent, non-mentioning of the said details on the package amounts to violation of Rule 6(2) of the Rules, 2011. Rule 6(2) of the Rules, 2011, which stood prior to the amendment as per GSR385 (E) dated 14.05.2015 with effect from 01.01.2016 reads as follows:

“Rule 6(1) *** *** ***

(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

(3) *** *** ***”

7. The learned Senior Counsel brought my attention to Annexure-D clarification issued by Ministry of Consumer Affairs, Government of India on 12.01.2007. The aforesaid clarifications as contained in the said communication reads as follows:

“It is also clarified that where the manufacturer has no separate address for the consumer care cell, declaration of designation of the person (in charge of consumer care cell)/the name of the office (Consumer Care Cell, Consumer Complaint Cell etc.,), telephone number and if available, e-mail address along with name & address of manufacturer required under Rule 6(1) and mention on the package to this effect is deemed compliance of this Rule.”

8. In the light of the aforesaid clarification issued by the Government, it was contended that the allegations as to the non-compliance of Rule 6(2) cannot be treated as a violation attracting any penal consequences. According to the learned Senior Counsel, the declaration contained the details of the manufacturer along with the phone number and e-mail address of the manufacturer, and it amounts to compliance of the said rule. The learned Senior counsel also relies on the judgment of this Court reported in Shantanu Khosle (Manufacturer) and others v. Inspector, Legal Metrology and another [ILR 2015 2 Kerala 892]. The aforesaid judgment was rendered by this Court in respect of a proceedings initiated against the petitioner therein for violation of Rule 6 (1A) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977, which is pari materia with the provision contained in Section 6 of the present Rules. After referring to the aforesaid provisions, in detail, this Court was pleased to observe in paragraph Nos.12 and 13 as follows:

“12. The allegation against the petitioners was that the package does not confirm Rule 6(1) (1-A) of the above said rules which says that every package shall bear the name, address, telephone number and e-mail address if available of the person who can be or the office which can be contacted in case of consumer complaints. This was intended for the consumer to approach the manufacturer in case of any defect in the manufacture to get redressal of their grievances.

13. I have pursued the label declaration seen on the packet where the manufacturer address is given as "Tide is the trade mark of the Procter and Gamble company and licensed to Procter and Gamble Home Products Limited-Mumbai-400 099" and under the caption consumer comments "consumer relations telephone 022-24942113, email: brandinfo@in.pg.consumers.com" and bar code also was exhibited in the packet. Neither in the mahazar nor in the complaint presence of these descriptions were mentioned. The allegation was that no declaration or particulars as required under Rule 6(1) (1-A) was found on the packet and not that what is seen is not sufficient compliance of the rule. If the particulars mentioned are sufficient for the consumer to contact, the purpose of the rule has been complied with and that was intended by the legislature as well. So under the circumstances the allegation in the complaint that the Rule 6 (1)(1-A) of the above said rules has been violated appears to be not correct as the allegation was not that the particulars given are not sufficient but there is total lack of compliance of Rule 6(1) (1-A) which appears to be not correct. So, under the circumstances, this court feels that the allegation in the complaint that there is violation of the rules and thereby they have committed the offences mentioned is unsustainable in law and the same is liable to be quashed. No purpose will be served by proceeding with the case and proceeding with the case will amount of abuse of process of court and it is a fit case where the power under section 482 of the Code of Criminal Procedure has to be invoked to quash the proceedings. So the application is allowed and further proceedings in ST. No. 4116/2011 on the file of Judicial First Class Magistrate Court-II, Nedumangad as against the petitioners is hereby quashed.”

9. In the said judgment, it was observed that, providing details of the manufacturer along with the phone number and e-mail address for contacting in case of consumer complaints is amounting to compliance of the said stipulation. However, in this case, the factual position as revealed from the materials placed before me is different. Going by the allegations in Annexure A complaint, even though the petitioner provided the details such as phone number and e-mail address of the manufacturer, it was not shown as a mean to communicate in case of consumer complaints. In the clarification issued by the Government also, what is clarified is that, a declaration of designation of the person (in charge of consumer care cell)/the name of the office (Consumer Care Cell, Consumer Complaint Cell etc.,), telephone number and if available, e- mail address along with name & address of manufacturer required under Rule 6(1) and mentioned on the package to this effect is deemed to be proper compliance of the Rule. Thus, mere mentioning of the details of the manufacturer is not amounting to compliance of the said stipulation. No materials placed before me to show that the aforesaid details were provided in the declaration, highlighting to the name of the person in charge of Consumer Cell or name of the office of Consumer Cell. As per the said clarification, what was exempted is the declaration of full details of person or office who were entrusted with the duty to attend the consumer complaints. But it is not provided in the said clarification that, mere furnishing of the address, phone number of e-mail address of the company, is amounting to compliance of the requirement of the said Rule. Moreover, it is a question of fact, which has to be examined during the course of trial. In such circumstances, I do not find that the contention of the petitioner in this regard is sustainable.

10. The next allegation is in relation to violation of Rule 8(2) of Rules, 2011. According to the 2nd respondent, the petitioner failed to exhibit the MRP in the manner mentioned in Rule 2(m) of Rules, 2011, as the same was not printed in principal display panel. According to the 2nd respondent, the same was printed on the neck of the bottle and such type of printing is permitted only in respect of soft drinks packed in a bottle which is returnable by the consumer for being refilled, by virtue of Rule 8(2). In this regard, it was pointed out by the learned Senior Counsel that going by the expression ‘principal display panel’ as defined under Rule 2 (h) of Rules, 2011, it is permissible to exhibit the same on the neck of the bottle also. The aforesaid Rule reads as follows:

“(h) “principal display panel”, in relation to a package, means the total surface area of the package where the information required under these rules are to be given in the following manner, namely;

(i) all the information could be grouped together and given at one place; or

(ii) the pre-printed information could be grouped together and given in one place and on line information grouped together in other place;”

11. The contention of the petitioner is that, as per 2(h) (ii) the pre-printed information could be grouped together and given in one place and on line information can be grouped together and exhibited in other place. Principal display panel is defined as the total surface area of the package, where the information are given. Thus, going by the aforesaid definition, it can be seen that the on line information such as MRP as well as batch numbers etc. can be grouped together on any other place and it is not necessarily to be provided along with the other pre-printed information. It was pointed out that, in compliance of the said provision, MRP along with manufacturing date/batch number were provided on the neck of the bottle. In respect of the said contention, clarification issued by the Ministry of Consumer affairs dated 26.07.2012, which is produced as Annexure-E, was also relied upon. As per the aforesaid clarification, on line declaration of MRP is permitted to be exhibited on the neck of bottles containing packaged drinking water.

12. However, I find no merit in the said contention as well. Rule 7 of Rules, 2011, provides the details of areas, size and letters etc. of the principal display panel. Going by the description contained in Rule 7, it can be seen that, the principal display area is confined to certain areas of the package, and it is does extent to the entire surface thereof. As per sub rule (4) of Rule 7, the neck of the bottle is specifically excluded from the principal display panel. The contention of the learned Senior counsel is that, the authorization granted under Rule 8(2) to exhibit the said details on the neck of the bottles, which is returnable by the consumer for being refilled, does not provide for a stipulation that, in all the other cases, printing shall not be made on the neck of the bottle. However, I am unable to accept the same. Going by Rule 7, it is evident that, principal display panel is confined to certain areas of the package, as stipulated therein. In this regard the definition of ‘principal display panel’ as defined in Rule 2(h) is also relevant particularly the expression “….total surface area of the package where the information required under these rules are to be given………. . Thus it is evident that, it does not extent to the entire surface area, but only confined to the area, where the information has to be given. The area and other specifications for the same are specifically provided in Rule 7 and therefore, the definition contained in Rule 2(h) has to be read along with the stipulations contained in Rule 7. Thus a joint reading of the said provisions would indicate that, declarations required to be made under the Rules can be made only in the areas defined as principal display panel as described in Rule 2(h) read with Rule 7 of Rules, 2011. The authorization to indicate the details on the bottle of the neck or on the crown cap of the bottle, as provided under Rule 8(2) is only an exception to the said rule, which is applicable only to the soft drinks packed in bottles which are returnable for refilling. Admittedly, the packages which are the subject matter of this case do not come under the said category and hence the same is not applicable.

13. The learned Senior Counsel, brought my attention to the judgment rendered by Karnataka High Court in Danone Narang Beverages Pvt Ltd, Mumbai, vs. State of Karnataka (ILR 2016 KAR 4764). In the said judgment, it was observed as follows;

“Rule 8(2) of the said Rules is only an enabling provision for soft drinks, ready to serve fruit beverages or the like, packed in returnable bottles. This enabling provision cannot be read as a restrictive provision, especially when Rule 8(1) allows declarations to be made on the entire principal display panel.”

The said observations cannot be made applicable in this case, for more than one reason.

14. Firstly, in the said case, the Karnataka High Court was dealing with a case of packaged drinking water, for which permission to make the on line declaration on the neck of the bottle was provided as per the clarification issued by the Government (Annexure-E). The aforesaid clarification was relied on by the Learned Single Judge while deciding the said question. In this case, we are dealing with soft drinks, such as MIRINDA and 7UP, which do not fall under the category of packaged drinking water. The said products are soft drinks. Soft drinks were specifically dealt with in Rule 8(2) and the permission to make declaration on the crown cap or on the bottle was granted only in respect of such soft drinks, which are packed in returnable bottles for being refilled. In this case admittedly the packages were not returnable by the consumers.

15. Secondly, the impact of Rule 7 is also not seen taken into consideration. In my view, in the light of the description of area of principal display panel, as contained in Rule 7, the manufacturer has a duty to ensure that all the declarations are made in the principal display panel, as defined in Rule 2(h), the area of which is described in Rule 7. Thus, Rule 8(2) of Rules 2011, is not a mere enabling provision, but it is an exception to the general rule, which would be applicable only to the products specifically mentioned therein.

16. It is true that, in the clarification issued by the Ministry of Consumer affairs dated 26.07.2012, certain exemptions have been provided. However, the aforesaid clarification is applicable only in respect of packaged drinking water, which is not applicable to the petitioner herein, as the products which are the subject matter here, do not come under the said category. Hence, the contention of the petitioner on this issue is not legally sustainable.

17. The third aspect is relating to the fond size of declaration of MRP. According to the 2nd respondent the aforesaid allegation was based on Rule 31(2) of Rule 2011 wherein, it was stipulated that fond size of the net quantity in the advertisement shall be same as in the retail sale price. In this case, the aforesaid stipulation is in respect of the advertisements. The expression advertisement is not defined in Rules, 2011 or in the Act, 2009 and therefore meaning of the same has to be understood under the common parlance. As shown in ‘Concise Law Dictionary” the expression ‘advertisement’ means;

“to make publicly known an information by some device and to draw or attract attention of the public/individual concerned to such information”.

18. It is normally understood as any written, electronic, or printed communication or any communication by means of recorded messages or transmitted on radio, television, the internet, or similar communications media, including film strips, motion pictures, and videos, published, disseminated, circulated, or placed directly before the public. Even according to the 2nd respondent, the declaration which is found to be in violation of Rules 31(2) was the description found on the package. As per the allegations, the aforesaid declaration made on the package commodity was treated as an advertisement for the commodity, as according to the 2nd respondent, it is also intended to draw the attention of the consumers. However, in my view, such a consideration is not possible. The details mentioned in a packaged with regard to the features, price, date of manufacture etc. are descriptions of the contents of the package and under no circumstances, the same can be treated as advertisement. An advertisement is a publication, the sole purpose of which is to draw the attention o

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f the consumers to the product. The advertisement, is a publication normally made through any device or media, either printed, or audio-visual. The descriptions contained in the pre-package cannot be treated as an advertisement, as the same is intended to convey the information of the product to the potential consumers. In this regard, the Learned Counsel brought my attention to the definition of “label” as contained in section 2(f) of Legal Metrology Act, 2009, which reads as follows; “‘label” means any written, marked stamped, printed or graphic matter affixed to, or appearing upon any pre-packaged commodity.” 19. Any descriptions on the pre-packaged commodity would come under the definition of ‘label’, and the said expression is not included in Rule 31(2). Moreover, as regards to the manner for displaying the descriptions on the package, there are other provisions in the Act and the Rules. What is contemplated under Rule 31(2) is the fond size of the description in respect of the contents of an advertisement, which cannot be treated at par with the descriptions contained in the packaged commodity. In fact , Rule 31(2) is dealing with a completely different scenario and operating on a different area. In such circumstances, I am of the view that Rule 31(2), which prescribes the fond size of the contents of advertisement, cannot be made applicable to the descriptions contained on the packaged commodity. In such circumstances, allegation of non-compliance of Rule 31(2) does not arise. 20. Thus, the conclusion that can be drawn is that, out of three violations alleged against the petitioner, two violations are prima facie established. However, it requires deeper scrutiny based on the materials which may come out in the trial. In view of the said finding, this Crl.M.C. is only to be dismissed, leaving open the matters to be decided during the course of the trial. Accordingly, this Crl.M.C. is dismissed.
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