Indian Oil Corporation Limited Vs. the Controller of Legal Metrology Government of Goa and Others - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 61 - legal metrology act, 2009 - section 15, section 18(1), section 31, section 36, section 50(1)(e) - legal metrology (packaged commodities) rules, 2011 - rule 6(1), rule 6(1)(d), rule 32(2) – prevention of food adulteration act, 1954 - section 2(1)(f) - search conducted - seized packages of lubricants - packages not bear month and year of manufacture - show cause notice – liability challenged - petitioner/government undertaking, engaged in retail sale of petroleum products and lubricants - officials of respondent/legal metrology department conducted search and seized packages of lubricants, on ground that, said packages did not bear month and year of manufacture as per rule 6(1) of the rules, 2011 - show cause notice was issued to petitioner and was made liable for offences under section 18(1) and 31 of the act, 2009 and rule 6(1)(d) of rules, 2011 – petitioner received summons from magistrate, under section 61 of cr .p.c. to answer to charge under section 36 of the act, 2009 and rule 32(2) of the rules, 2011 on a criminal case filed by respondent, pursuant to order of respondent no.1 – so, petitioner filed a writ petition seeking direction from respondent no. 2 to hear and decide petitioner's appeal, which was dismissed – hence instant appeal issue is – whether registration of criminal case against petitioner with charge under section 36 of the act, 2009 and rule 32(2) of the rules, 2011 is unjust, illegal, arbitrary and liable to be quashed and set aside court held - it may be true that in impugned order, it is not specifically mentioned month and year of manufacture as required to be mentioned on package, therefore, there was violation of provisions of act, 2009 - respondent no. 1 has stated that requirement of rule 6(1)(d) of rules, 2011 has not been fulfilled, since date of manufacturing is not mentioned – further, declarations required to be made on packaged commodities as per rule 6(1)(a) and (d) of rules 2011 by manufacturer or packer, should be clear and specific for consumers satisfaction and should not be printed or declared in a misleading manner - respondent no.2 held that petitioners could not establish their stand to prove that they have complied with provisions laid down under rules, 2011 - therefore, there was violation of provisions of act, 2009 - requirement of mentioning month and year of manufacturing is mandatory - hence, there is infringement of provision of rule 6(1)(d) of rules, 2011 and section 18(1) of the act, 2009 – therefore, offences under sections 18(1), 31 and 36 of the act, 2009 and rules 6(1) (d), 18(1) and 32(2) of rules, 2011 have been committed, as requirement of mentioning month and year of manufacturing is mandatory - hence, there is infringement of the provision of rule 6(1)(d) of the rules and section 18(1) of the act, 2009 - there is also allegation against petitioner of offence punishable under section 31 of the act, 2009 for non-production of documents required by authority - court view that petitioner has not made out any case for setting aside impugned order and no perversity, as pointed out - petitioner is, therefore, not entitled to any reliefs - petition dismissed. cases relied: “municipal corporation of delhi vs. tek chand bhatiaâ€? (air 1980 sc 360). v-guard industries ltd. vs controller of legal metrology, hyderabad and othersâ€? (air 2012 andhra pradesh 158) heard mr. costa frias, learned counsel appearing on behalf of the petitioner and mr. noorani, learned additional government advocate appearing on behalf of the respondents. 2. rule. rule is made returnable forthwith. by consent, heard forthwith. 3. by this petition, the petitioner has sought following reliefs: œ(a) for a writ of certiorari or any other appropriate writ, order or direction calling for the records and proceedings of appeal case no. secy/clm/01/2013 on the file of the respondent no.2 and on perusal of the same that this court be pleased to quash aside the impugned judgment and order dated 4/9/13 passed therein by the respondent no.2 and appeal of the petitioner be allowed. (b) for an appropriate writ, order or direction thereby directing the judicial magistrate first class at vasco-da-gama not to proceed with the trial of criminal case no. 78/oa/lma/2013/a pending the hearing and final disposal of the petitioner's appeal before the respondent no.2.? 4. the case of the petitioner, in short, is as follows: the petitioner is a government of india undertaking engaged in retail sale of the petroleum products and lubricants and allied businesses. on 09/11/2012, the officials attached to the legal metrology department conducted a surprise visit at the terminal of the petitioner at vasco-da-gama and seized certain packages of lubricants sold on retail basis on the ground that the said packages did not bear the month and year of manufacture as per rule 6(1) of the legal metrology (packaged commodities) rules, 2011 ('the rules' for short). a show cause notice dated 12/11/2012 came to be issued to the petitioner by the inspector of legal metrology. the seized items are lubricants prepackaged by the petitioner at different branding locations and after the branding process, these lubricants are sent to the can filling plants to be packaged. since canning does not take place immediately, pre-packaged date i.e. the date on which the lubricants are canned, is mentioned on the package/can. therefore, the said items would be covered under the rule 6(1)(d) of the rules requiring to mention the month and year in which they were pre-packed, which details are very much there on the packages of the seized items. vide letters dated 12.11.2012, 16.11.2012 and 30.11.2012, the petitioner brought this fact to the notice of the respondent department. however, thereafter, the petitioner received a memorandum dated 01/01/2013 from respondent no.1 thereby rejecting the contentions of the petitioner and holding the petitioner liable for the offences under section 18(1) and 31 of the legal metrology act, 2009 ('the act', for short) and rule 6(1)(d) of the rules. aggrieved by the said order dated 01/01/2013, the petitioner filed an appeal under section 50(1)(e) of the act before respondent no.2. on or about 20/03/2013, the petitioner received a letter dated 19/03/2013 from respondent no.1 regarding the appeal filed before respondent no.2 stating as follows: "in this regard, it is to inform you that the undersigned has given idea to the secretary, legal metrology about the matter. the undersigned has informed the secretary that the said case has been filed in the court of judicial magistrate, first class, vasco for trial against m/s. iocl. therefore, the legal metrology has directed the undersigned that as the matter is in trial stage and it is sub-judice, he cannot take up the matter and directed the undersigned to inform you accordingly. therefore, the matter will be dealt with in the court of judicial magistrate, first class, vasco." the petitioner did not receive any communication from respondent no.2, though it was incumbent on respondent no. 2 to decide the appeal in accordance with law. on 12/04/2013, the petitioner received summons from the court of judicial magistrate, first class, vasco under section 61 of the cr .p.c. to answer to a charge under section 36 of the act and rule 32(2) of the rules, on a complaint filed by the inspector of legal metrology, vasco, pursuant to the order dated 01/01/2013 of respondent no.1. the said complaint has been registered as criminal case no.78/oa/lma/2013/a and chief terminal manager of the petitioner's terminal at vasco-da-gama has been arraigned as an accused in the said case. respondents no.1 and 2 ought not to have proceeded to file the complaint without first enabling the petitioner to avail of its right to appeal against the order dated 01/01/2013. the petitioner filed a writ petition no. 416/2013 before this court seeking direction to respondent no. 2 to hear and decide the petitioner's appeal in accordance with law. the said writ petition was disposed of by this court on 15/07/2013 thereby directing the appellate authority to hear and decide the appeal within a period of eight weeks from that date. it was further ordered that the proceedings in criminal case no.78/oa/lma/2013/a before the judicial magistrate, first class, vasco shall remain stayed till the appeal is decided and for a period of two weeks thereafter. thereafter, respondent no.2 heard the appeal of the petitioner and vide judgment and order dated 04/09/2013, dismissed the same. the said order dated 04/09/2013 is unjust, illegal, arbitrary and liable to be quashed and set aside. 5. mr. costa frias, learned counsel appearing on behalf of the petitioner submitted that the respondent no.2 has not considered the relevant provisions of the act. he read out rule 6 of the rules and pointed out that either the month and year in which the commodity is manufactured or the date and year in which it was pre-packed or the month and year in which it was imported, had to be mentioned on the label affixed to the package. he submitted that the seized lubricants are pre-packed at different branding locations after the branding process and they are sent to the can filling plants to be packaged. he submitted that since canning does not take place immediately, the pre-packed date i.e. the date on which the lubricants are canned is mentioned on the package/can. according to him, therefore, the provision of rule 6(1)(d) of the rules has been duly complied with, due to which there was no infringement at all. he invited my attention to the photographs wherein the details about the date of packing have been printed along with other required details. he invited my attention to the impugned order dated 04/09/2013 wherein nowhere it is mentioned that the month and year of manufacture is required to be mentioned on the package and that the same was not mentioned and, therefore, there was violation of the provisions of the act. according to him, if the date of manufacturing was required, it was incumbent upon the respondent no.2 to have mentioned the same in the order. according to the learned counsel, the word œor? in rule 6(1)(d) of the rules has to be read disjunctively. in this regard, he relied upon the judgment of the apex court in the case of œmunicipal corporation of delhi vs. tek chand bhatia? (air 1980 sc 360). 6. per contra, mr. noorani, learned additional government advocate, first of all, pointed out from the undisputed coloured photographs of the package that what is mentioned therein is the date of "pkd?. he submitted that it is not known as to what is meant by "pkd" and in any case, even if the said word "pkd? means packed, then also, it cannot mean pre-packed. therefore, according to him, admittedly, pre-packed date is not mentioned on the said package, due to which there is infringement of rule 6(1)(d) of the rules. according to him, even otherwise, said rule 6(1)(d) of the rules, does not refer to 'prepackaged commodity' but to any kind of commodity. he pointed out that section 2(l) of the act defines œpre-packaged commodity?. he further submitted that the name of packager has not been mentioned due to which there is infringement of rule 6(1)(a) of the rules. learned additional government advocate therefore urged that the month and year of manufacture had to be put on the package. he relied upon the judgment of the andhra pradesh high court in the case of œv-guard industries ltd. vs controller of legal metrology, hyderabad and others? (air 2012 andhra pradesh 158). 7. in rejoinder, mr. costa frias argued that is not at all disputed that what has been seized is 'pre-packaged? goods. hence, according to him œpkd? means nothing else than œprepackaged?. he further pointed out to the memorandum issued to the petitioner which does not say that pre-packaged date is not mentioned. 8. i have gone through the entire material on record and i have considered the submissions made by the learned counsel for the parties as also the judgments relied upon by them. 9. the memorandum dated 01/01/2013 issued by the respondent no.1 states that the petitioner has committed offences under sections 18(1) and 31 of the act and rule 6(1)(d) and 18(1) of the rules, which are punishable under section 36 and rule 32(2) of the act and the rules respectively. let us first see as to what the said provisions of the act and rules lay down : (i) section 15 of the act provides as under: œ15. power of inspection, seizure, etc. - (1) the director, controller or any legal metrology officer may, if he has any reason to believe, whether from any information given to him by any person and taken down in writing or from personal knowledge or otherwise, that any weight or measure or other goods in relation to which any trade and commerce has taken place or is intended to take place and in respect of which an offence punishable under this act appears to have been, or is likely to be, committed are either kept or concealed in any premises or are in the course of transportation,- (a) enter at any reasonable time into any such premises and search for and inspect any weight, measure or other goods in relation to which trade and commerce has taken place, or is intended to take place and any record, register or other document relating thereto; (b) seize any weight, measure or other goods and any record, register or other document or article which he has reason to believe may furnish evidence indicating that an offence punishable under this act has been, or is likely to be, committed in the course of, or in relation to, any trade and commerce. (2) the director, controller or any legal metrology officer may also require the production of every document or other record relating to the weight or measure referred to in sub-section (1) and the person having the custody of such weight or measure shall comply with such requisition. (3) where any goods seized under sub-section (1) are subject to speedy or natural decay, the director, controller or legal metrology officer may dispose of such goods in such manner as may be prescribed. (4) every search or seizure made under this section shall be carried out in accordance with the provisions of the code of criminal procedure, 1973, (2 of 1974) relating to searches and seizures.? (ii) section 18(1) of the act provides as under : œ18. declarations on pre-packaged commodities.- (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.? (iii) section 31 of the act provides as under : œ31. penalty for non-production of documents, etc. - whoever, being required by or under this act or the rules made there under to submit returns, maintain any 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 extend to five thousand rupees and for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine.? (iv) rule 6(1) (a) and (d) of the rules provide as under : œ6. declarations to be made on every package. - (1) every package shall bear thereon or on label securely affixed thereto, a definite, plain 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. explanation i.-- if any name and address of a company is mentioned on the label without any qualifying words 'manufactured by' or 'packed by', it shall be presumed that such name and address shall be that of the manufacturer and the liability shall be determined accordingly; explanation ii.-- if the brand name and address of the brand owner appear on the label as a marketer, then the brand owner shall be held responsible for any violation of these rules and action as may be required shall be initiated against the deemed manufacturer and in the event of more than one name and address appearing in the label, prosecution shall be launched against the manufacturer indicated on the label in the first place and not against all of them. explanation iii. - in respect of packages containing food articles, the provisions of this sub-rule shall not apply, and instead, the requirement of the prevention of food adulteration act, 1954 (37 of 1954) and the rules made there-under shall apply. ¦................................................................ ¦................................................................ (d) the month and year in which the commodity is manufactured or pre-packed or imported shall be mentioned in the package. provided that for packages containing food articles, the provisions of the prevention of food adulteration act 1954 (37 of 1954) and the rules made there under shall apply: provided further that nothing in this sub-clause shall apply in case of packages containing seeds which are labelled and certified under the provisions of the seeds act, 1966 (54 of 1966) and the rules made there under: provided that a manufacturer may indicate the month and year using a rubber stamp without overwriting: provided also that for packages containing cosmetics products, the provisions of the drugs and cosmetics rules, 1945 shall apply.? (v) rule 18(1) of the rules provides as under : œ18. provisions relating to wholesale dealer and retail dealers.- (1) no wholesale dealer or retail dealer or importer shall sell, distribute, deliver, display or store for sale any commodity in the packaged form unless the package complies with in all respects, the provisions of the act and these rules.? (vi) rule 32(2) of the rules provides as under: œ32(2) whoever contravenes any other provision of these rules, for the contravention of which no punishment has been provided either in the act or in the rules, he shall be punished with fine of two thousand rupees.? 10. the seizure memo dated 9/11/2012 and the memorandum dated 01/01/2013 says that the seized packages did not bear the month and year of manufacturing. in the memorandum it was clearly stated that the offences under sections 18(1), 31 and 36 of the act and rules 6(1) (d), 18(1) and 32(2) of the rules have been committed. the petitioner, by letters dated 12/11/2012 and 16/11/2012, addressed to the respondent no.1, had stated that apart from other technical details, the following details are mentioned on the label as also noted in the seizure memo namely (a) packaging date, (b) batch number (c) mrp. thus, admittedly, according to the petitioner, what is meant by 'pkd' is packaged and not pre-packaged. rule 6(1)(d) of the rules lays down the requirement of month and year in which the commodity is prepackaged. since, admittedly, the month and year in which the commodity was prepackaged has not been mentioned, there is breach of rule 6(1)(d) of the rules. it is seen from the photographs of the packages that it is mentioned thereon that the same are manufactured and marketed by the petitioner. however, the date and month of manufacturing has not been mentioned. it is not true that the respondents have not disputed that the packages were pre-packed on certain dates. what has not been disputed is that the date of packing has been mentioned on the packages. but, again, the name and address of the packer is also not mentioned. the respondent no.2, in the impugned order, has held that the petitioner has failed to mark the name and address of the packer/manufacturer in order to justify their stand on the declared word œpacked on ¦... on the packages of seized packages / brands. though in the memorandum, it is not specifically mentioned that pre-packaged date is not mentioned, however, it is alleged that there is violation of rule 6(1)(d) of the rules. therefore, respondent no.2 has held that the petitioners could not establish their stand to prove that they have complied with the provisions of the rules. the appeal has, therefore, been dismissed. 11. in the case of of œmunicipal corporation of delhi?(supra), relied upon by the learned counsel for the petitioner, the question was whether the words œor otherwise unfit for human consumption? are disjunctive of the rest of the words preceding them as used in section 2(1)(f) of the prevention of food adulteration act, 1954. section 2(1)(f) defined the term 'adulterated' as follows: œ(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.? the apex court has held thus : œon the plain language of the definition section, it is quite apparent that the words "or is otherwise unfit for human consumption" are disjunctive of the rest of the words preceding them. it relates to a distinct and separate class altogether. the last clause "or is otherwise unfit for human consumption" is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. if the phrase is to be read disjunctively tho mere proof of the article of food being "filthy, putrid, rotten, decomposed..... or insect-infested" would be per se sufficient to bring the case within the purview of the word "adulterated" as defined in sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption. 1972 fac 640, reversed: 1973 cri lj 433 (delhi), overruled; air 1976 sc 394, distinguished; (1928)1 kb 561 and (1888)13 ac 603, rel. on. in the definition clause, the collocation of words 'filthy, putrid, rotten, decomposed and insectinfested" which are adjectives qualifying the term 'an article of food' show that it is not of the nature, substance and quality fit for human consumption. it will be noticed that there is a comma after each of the first three words. it should also be noted that these qualifying adjectives cannot be read into the last portion of the definition i.e., the words "or is otherwise unfit for human consumption" which is quite separate and distinct from others. the word "otherwise" signifies unfitness for human consumption due to other causes. if the last portion is meant to mean something different, it becomes difficult to understand how the word 'or' as used in the definition of 'adulterated' in s. 2(1) (f) between "filthy, putrid, rotten, etc. "and" otherwise unfit for human consumption" could have been intended to be used conjunctively. it would be more appropriate in the context to read it disjunctively.? 12. the facts and circumstances in the case of œmunicipal corporation of delhi? (supra) are not at all applicable to the case at hand. in the present case, in my considered view, clause (d) of rule 6(1) of the rules should be read with clause (a) thereof since both the said clauses are connected and pertain to the manufacturer or packer or the importer. clause (a) requires that 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 whereas clause (d) requires that the month and year of manufacturing of commodity or of pre-packing or of importing shall be mentioned. when both clauses are read together, one can gather that the name and address of the manufacturer and month and year in which the commodity is manufactured shall be mentioned where the manufacturer is the packer and where the manufacturer is not the packer, then the name and address of the manufacturer and the packer and month and year of the manufacture as well as of the packing shall be mentioned and where the commodity is imported, name and address of the importer and the month and year of import shall be mentioned. it cannot mean that there is option either to mention the month and year of manufacturing or the month and year of packing. the name and address and the month and year of manufacture will have to be mentioned in all cases except where the commodity is imported in which case the name and address of the importer and the month and year of import is to be mentioned. where first limb of rule 6(1(d) of the rules is not applicable, the second limb thereof becomes applicable. by common sense, one can say that a consumer must know as to who manufactured or manufactured and packed the commodity and as to when the same was manufactured/packed. the month and year of manufacture need not be the same as the month and year of packing the commodity. there may be a time gap between the month and year of manufacture and the month and year of packing. disclosure of month and year of packing is not equal to disclosure of the month and year of manufacture. 13. in the present case, the coloured photographs of the package reveals that the name and address of the petitioner is mentioned against the words: œmanufactured and marketed by?. but the month and year of manufacture is not mentioned. the contention of the learned counsel for the petitioner that the seized items, being lubricants, are pre-packed at different blending locations after the blending process and after that the lubricants are sent to the can filling plants to be packaged and since the canning does not take place immediately, the pre-packed date i.e. the date on which the lubricants are canned is mentioned on the packages and hence the question of mentioning of month and year of manufacture does not arise, bears no substance. the requirement of mentioning the month and year of manufacturing is mandatory. hence, there is infringement of the provision of rule 6(1)(d) of the rules and section 18(1) of the act. 14. it may be true that in the impugned order dated 04/09/2013 it is not specifically mentioned that the month and year of manufacture is required to be mentioned on the package and that the same was not mentioned and, therefore, there was violation of the provisions of the act. however, the impugned order has to be read as a whole. the respondent no. 2 has incorporated the provisions of rule 6(1) and (2) of the act and has mentioned that in the reply, the respondent no. 1 has stated that though the requirement of 6(1)(a) has been fulfilled by declaring the name and address of the manufacturer, however, the requirement of rule 6(1)(d) has not been fulfilled since the date of manufacturing is not mentioned. then, the respondent no. 2 has opined that the declarations required to be made on the packaged commodities as per rule 6(1)(a) and (d) by the manufacturer or packer, should be clear and specific for consumers satisfaction and understanding and should not be printed or declared in a misleading manner. ultimately, the respondent no.2 has held that the petitioners could not establish their stand to prove that they have complied with the provisions laid down under the rules. therefore, it cannot be said that the respondent no. 2 has not held that that the month and year of manufacture is required to be mentioned on the package and that the same was not mentioned and, therefore, there was violation of the provisions of the act. 15. besides the above, there is allegation against the petitioner of offence punishable under section 31 of the act for non-production of documents required by the authority to produce before him. 16. considering all the aspects, i am of the view that the petitioner has not made out any case for setting aside the impugned order dated 04/09/2013. no perversity, as such, has been pointed out. the petitioner is, therefore, not entitled to any reliefs. 17. hence, the rule is discharged. the petition stands dismissed. in the facts and circumstances of the case, no order as to costs.