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2007 Supreme(Bom) 1231
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR.
C. L. PANGARKAR J.
Santanu s/o Jagatbandhu Sinha
VERSUS
State of Maharashtra
CRIMINAL APPLICATION NOS. 781 & 783 OF 2007
Decided On : 31st AUGUST 2007.
Shri.S. V. Manohar, Counsel for the applicants.
Shri. Y. B. Mandpe, APP for the State/respondent.
Headnote:Packaged Commodities Rules, 1977 - Rule 5-Standards of Weights and Measures Act, 1976, Section 33-Standards of Weights and Measures (Enforcement) Act, 1985, Section 62-Offence not disclosed-FIR-Quashed.-The breach alleged is of Rules 5, 9, 12(1) and 12(6) of 1977 Rules. As seen above Rule 5 envisages that the commodity must be packed in standard quantity. We have seen above that detergent cake can be packed in quantity of 125 gms. also. Here again the quantity offered for sale is only 125 gms. and price is charged for that quantity only. The other 25 gms. is offered free. The objective of Rule 5 is to prevent the customer being misled or cheated. If what is printed on the pack is read there is no likelihood of anybody being misled or cheated. It is clearly mentioned that the quantity offered for sale is 125 gms. and 25 gms. is free and extra. This being the position it cannot be said that the packing was in breach of Rule 5. The price of the quantity offered for sale is also mentioned on the pack.
The intention behind prohibition of use of words such as extra is with a view to avoid misleading or inadequate impression as to the quantity. In this case although word extra is used along with the quantity offered i.e. 125 gms. + 25 gms. free 20% extra. Thus it is made clear that in that particular pack there is 25 gms. extra quantity which is equivalent to 20% of 125 gms. This certainly is not a misleading declaration.
It was also contended that complaint is prima facie barred by limitation. The offence under Section 33 of 1976 Act is punishable under Section 51 of the 1985 Act. Section 51 says that the first offence shall be punishable with fine of Rs. 5,000/-. Thus it is an offence which is punishable with fine only on the first occasion. Section 468 of the Criminal Procedure Code prescribes limitation of six months where offence is punishable with fine only. In this case the seizure is dated 15.2.2001 and the complaint is instituted on 28.8.2001. The complaint should have been therefore filed on 15.8.2001. It is obviously barred by limitation. For this reason also this complaint is liable to be quashed.
Criminal Procedure Code, 1973 - Section 204 - Packaged Commodities Rules, 1977, Rule 5 - Standards of Weights and Measures Act, 1976, Section 33 - Standards of Weights and Measures (Enforcement) Act, 1985, Section 62 - Company - Procedure against - If at all the directors are to be prosecuted they should be prosecuted by names - If the complainant wanted to prosecute the company should have been made an accused - Complaint must contain pleadings to the effect that those person who are sought to be prosecuted are either-in-charge of the business or responsible to the company for the conduct of business.
Rule.
2. Returnable forthwith.
3. Heard finally with consent of parties.
4. These two applications under Section 482 of Criminal Procedure Code can be decided together since the parties to the petition are identical and questions involved are also almost common.
5. By Criminal Application No. 781/2007 the applicant seeks to quash the Criminal Complaint Case No. 1505/2001 on the file of Judicial Magistrate First Class Gondia. While Criminal Application No. 783/2007 is filed to quash Criminal Complaint Case No. 526/2001 on the file of Judicial Magistrate First Class Warora.
6. Manager (Legal) of Hindustan Lever Ltd. a Company has preferred both these applications on behalf of the Company. The complainant is Inspector of Legal Metrology i. e. Inspector of Weights and Measures.
7. A few facts in the application No. 781/07 may be narrated as follows: The accused/applicant i. e. Hindustan Lever Ltd. had offered for sale products with following description:
i) .Double Action Blue Wheel with Power Shine. net weight when packed 250 gms. + 25 gms. Free; and
ii) .Green Detergent Cake not according to standard size.
It is alleged that both this packing are in breach of Rule 5 of Packaged Commodities Rules 1977 read with Section 33 of the Standards of Weights and Measures Act, 1976 (hereinafter referred to as the First Act). A process is issued against the accused.
8. In Criminal Application No. 783/2007 the allegations in the plaint are as under: It is alleged that accused Hindustan Lever offered for sale a detergent cake with a description on the pack as : .Blue Detergent Cake Net Weight when packed 125 gms. + 25 gms free . 20% extra.. The breach alleged is of Rules 5, 9, 12(1) and 12(6) punishable under Section 33 of the Standards Act i.e. 1976 Act.
9. Mr. S. V. Manohar learned counsel for the applicant contended that as far as first complaint before Gondia Court is concerned, it is vague as far as description of the accused persons is concerned and is also not according to provisions of Section 62 of the Second Act i. e. Standards of Weights and Measures (Enforcement Act 1985). This Second Act was brought into effect for enforcement of Standards of Weights and Measures established by or under the Standards of Weights and Measures Act 1976 and for matters connected therewith or incidental thereto. To enforce the provisions of 1976 Act the 1985 Act makes provision, i.e. how prosecution etc. is to be launched and how a Company should be prosecuted. Accused has been described as follows in the complaint, .All Directors and Managers Hindustan Lever Limited, Backbay Reclamation, Mumbai.. Now by any stretch of imagination it could not be the description of an accused at all. If at all the Directors are to be prosecuted they should be prosecuted by names and even where a Manager is to be prosecuted he should be prosecuted by name. If the complainant wanted to prosecute the Company, the Company should have been made an accused but complainant does not seek to make Company accused in this particular case. He seeks to make all Directors and Managers as accused. This is absolutely vague and for this vagueness itself the complaint should have been thrown away at the threshhold. The proper description of the accused is absolutely necessary because in case of his conviction the order of conviction and sentence needs to be executed. With the above description the Court would be at a loss to know as to against whom such order of conviction should be executed. There may be hundreds of Managers and even 10 Directors. All of them cannot be hauled up and sent to jail without they being actually asked to face the charge. For this reason alone the complaint should have been dismissed without issuing process.
10. This takes me to the second contention. Mr. Manohar submitted that only those accused can be prosecuted who are in c
