M/S Procter and Gamble Home Products Limited Vs. State of Goa, Through Chief Secretary, Secretariat and Others - Court Judgment

Oral Judgment: (V.M. Kanade, J.)

Heard.

2. Rule. Rule is made returnable forthwith. By consent heard forthwith.

3. By this petition filed under Article 226 of the Constitution of India the petitioner is challenging order dated 3.1.2013 whereby the goods of the petitioner were seized by the Inspector, Legal Metrology Department by issuing two seizure memos which are annexed at Exhibit A.

4. Brief facts are as under:-

The petitioner is a Private Limited Company incorporated under the Provisions of the Companies Act, 1956. The dealers of the petitioner M/s CMM Tradelinks Pvt. Ltd and M/s. CMM Logistics Pvt. Ltd are their marketing agents for the distribution of the product manufactured by them. The respondent nos. 3 and 4 visited the godown of M/s CMM Tradelinks Pvt. Ltd and CMM Logistics Pvt Ltd and seized the said product manufactured and processed for the distribution by the petitioner with a direction not to sell the said product until further orders.

5. It is submitted by learned counsel appearing on behalf of the petitioner that the impugned order is contrary to the provisions of Legal Metrology Act, 2009 and Rules framed thereunder.

6. It is submitted that the impugned order is passed without assigning any reasons and the said order does not mention specific violation of any Rules or provisions under the Act. It is further submitted that Rule 5 of the said Rules provides that specific commodities are to be packed and sold in recommended standard package. It is submitted that proviso to the said Rule merely carves out an exception and permits the product to be packed in a size other than that prescribed in that schedule. However, the manufacturer has to give a declaration on the pack that it is not standard size pack. It is submitted that though the said proviso was deleted by an amendment which came into force on 1.11.2012, by separate notification the said proviso has been replaced by inserting two sub rules namely sub rule 2 and sub rule 3. It is submitted that sub rule 3 starts with non obstante clause and permits the manufacturer to sell the value based package in terms of Rs. 1 to 10 after making the other declaration specified in Rule 6. It is submitted that Rule 6 speaks about declaration to be made on every package. It is, therefore, submitted that there was no violation on the part of the petitioner since though proviso is amended however, sub clause 3 which is now inserted again seems to give the same protection. It is further submitted that the Act prescribes certain prohibitions and certain exceptions. It is submitted that in the present case, there is neither a prohibition nor any Rule which does not permit the petitioner from packing the said goods in accordance with the size prescribed in the second schedule or on account of non obstante clause in sub clause 3 which is inserted by virtue of the amendment which came into force on 1.11.2012.

7. On the other hand, Shri Nadkarni learned Advocate General appearing on behalf of the State submitted that the said proviso to Rule 5 was deleted by virtue of amendment which was made in June, 2012. However, the said amendment was brought into force from 1.11.2012 in order to enable the manufacturer to sell or dispose of all the products which were packed in packages which were not of normal size as prescribed in schedule 2. It was submitted that the petitioner was very well aware of the said amendment and in spite of that he had packed the said goods in a non standard size package and, as such, it further violated Rule 5 and also has committed breach by making a declaration to that effect on the said package which was now prohibited by virtue of the said amendment. It was submitted that non obstante clause only permitted manufacturer to sell the value based package in terms of Rules 1 to 10 by making other declaration specified in Rule 6. The Rule, therefore, does not permit the petitioner to pack the product in non standard sized package.

8. It was submitted that Section 18 of the said Act provided for declarations which are to be made on prepackage commodity and the said Section 18(1) prohibited the manufacturer from packing 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. By virtue of deletion of proviso to Rule 5 manufacturer was banned from making a declaration as contemplated in the proviso, after 1.11.2012. It was submitted that since it was found that even thereafter the petitioner had continued to pack this product in non standard size package and contrary to the provisions of second schedule the packages were detained for investigation.

9. We have heard the submissions made by learned Counsel for the petitioner and the respondents. Before taking into consideration rival submissions, certain provisions of the Act will have to be taken into consideration.

10. Section 18 of the said Act reads as under:-

(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.

(2) Any advertisement mentioning the retail sale price of a pre-packaged commodity shall contain a declaration as to the net quantity or number of the commodity contained in the package in such form and manner as may be prescribed.

11. Perusal of the said Section 18 and more particularly Sub clause (1) clearly imposes a prohibition on the manufacturer to pack, sell, import, distribute etc any pre packed commodities contrary to the provisions of the Act and also prohibits the manufacturer from making any declaration which is not prescribed under the Act or Rule.

Rule 6 speaks about declarations which are to be made on every package.

Rule 6 reads as under:-

(1) Every package shall bear thereon or on label securely affixed thereto, definite, plaint and conspicuous declaration made in accordance with the provisions of this chapter as, to --

(a) the name and address of the manufacturer, or where the manufacturer is not the packer, the name and address of the manufacturer and packer and for any imported package the name and address of the importer shall be mentioned on every package.

Explanation I, II and III..........

Rule 5 provides that specific commodities are to be packed and sold in recommended standard packages. The said Rule reads as under:

Specific commodities to be packed and sold in recommended standard packages. – The commodities specified in the Second Schedule shall be packed for sale, distribution or delivery in such standard quantities as are specified in that Schedule:

[Provided that if a commodity specified in the Second Schedule is packed in a size other than that prescribed in that Schedule, a declaration that 'Not a standard pack size under the Legal Metrology (packaged Commodities) Rules, 2011 or 'non standard size under the Legal Metrology (packaged Commodities) Rules, 2011 shall be made prominently on the label of such package.]

12. It is to be noted here that this proviso was sought to be deleted by issuance of notification dated 25.10.2011 w.e.f. 25.10.2011. Subsequently, however, the date was extended to 1.11.2012. The respondent also issued a notification dated 5.6.2012 and by virtue of the said notification, sub rules 2 and 3 were inserted in Rule 5. It is to be noted here that the proviso was omitted by notification from GSR.748(E) dated 24/25th October, 2011 initially w.e.f. 1.7.2012 and by notification dated 5.6.2012 it was provided that the proviso to Rule 5 shall be omitted from 1.11.2012. However, by a notification dated 1.7.2012 the said proviso was to be omitted from 1.11.2012. In the place of the deleted proviso sub sections were inserted w.e.f. 5.6.2012. The said sub clauses read as under:

2. In the Legal Metrology (Packaged Commodities) Rules, 2011,

(a) rule 5 shall be numbered as sub-rule (1) thereof and after sub-rule (1) as so numbered the following sub-rules shall be inserted, namely:

“(2)When one or more packages intended for retail sale are grouped together for being sold as a retail package on promotional offer, every package of the group shall comply with provisions of rule 6.

(3)Notwithstanding anything contained in the Second Schedule, the manufacturer or importer may sell the value based package in terms of Rs.1/-, Rs.2/-, Rs.3/-, Rs.4/-, Rs.5/-, Rs.6/-, Rs.7/-, Rs.8/-, Rs.9/- and Rs.10/-after making the other declarations specified in rule 6.”

13. Upon conjoint reading of the aforesaid provisions it is apparently clear that concession which is sought to be given by virtue of earlier proviso to Rule 5 was cancelled w.e.f. 1.11.2012. By virtue of deletion of proviso, therefore and upon conjoint reading of Section 18 of the said Act, the net result is that the manufacturer was now not permitted to pack his product in a non standard size package nor he was permitted to make a declaration on the package as contemplated in the said proviso. The petitioner however, has allegedly contravened the said provisions i.e Rule 5 read with Rule 6 and Section 18 read with the provisions of Second schedule in terms of rules 1 and 2 and consequently therefore seizure memo was issued by respondent nos. 3 and 4.

14. In our view, the submission made by learned counsel for the petitioner cannot be accepted since the aforesaid position is very clear upon proper interpretation of the said Rule 5 read with other Rules. Hence, the petition is dismissed in limine.

15. Rule is discharged.

16. Petition stands disposed of with no order as to costs.