The use of the word 'free' on package labels did not violate the Standards of Weights and Measures Act and Rules, as it did not create a misleading impression about the quantity of the commodity, and therefore, did not warrant prosecution.

This petition is filed under Section 482 of Cr.P.C. to quash the further proceedings in C.C.No.G-840 of 2005 of Judicial first Class Magistrate Court-II, Kolam. That case was taken cognizance on a complaint filed by the second respondent alleging commission of offences punishable under Section 39(4), 63 and 67 of the Standards of Weights and Measures Act, 1976 (hereafter referred to as ‘Act’) r/w Rules 4, 6(1), 12(6), 23(1) and 39 of the Standards of Weights and Measures (Packaged Commodities) Rules 1977 (hereinafter referred to as ‘Rules’).

2. On 1.9.2003 the second respondent was stated to have inspected the shop of one A.V. Shivaraj, proprietor of M/s. Sharavana Agencies, Maharani Market, Kollam. It is alleged that the second respondent detected certain violations under the Rules on the packages which were exhibited for sale in that shop. According to the complainant the packages bore unlawful and misleading expressions on the packages “30g (FREE) and “FREE 10 PIECES of Alpenliebe” kept for sale in the name and style “Alpenliebe cream Strawberry Candy”. The complainant says that the word “free” is similar to the word “EXTRA” and, therefore, there was violation of Section 39(4) of the Act and Rule 12(6) of the Rules. Annexure-I is the complaint filed by the second respondent before the Magistrate. The complaint narrates the allegations mentioned earlier.

3. The petitioner contends that several products are being sold or exhibited for sale having identical advertisements, offering a particular quantity as ‘free’. In support of that submission copies of such advertisements have been produced before court. The question is not whether some other companies are also engaged in making such advertisements. The fact that the products of some other companies are also sold making similar advertisements will not come to the rescue of the petitioner if the act alleged against the petitioners is proved to be illegal.

4. The crucial point for consideration is whether there has been violation of the Rules attracting the penal provision mentioned in the complaint. The manner in which declaration of quantity shall be expressed is mentioned in Rule 12 of the Rules mentioned earlier. Rule 12(6) reads thus:-

“(6) The declaration of quantity shall not contain any word or expression which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package, for example, words or expression like-

(i) “minimum”, “not less than”, “average”, “about”, “approximately” or any other word of a similar nature, or

(ii) “Jumbo”, “giant”, “full”, “family”, “huge”, “economy”, “large”, “extra”, “colossal”, “king”, “queen” or any other word or expression of a similar nature, shall not be used.

5. The learned counsel for the petitioner would submit that the word “Free” which according to the complainant is a misleading word or expression is not mentioned in Rule 12(6). But the complainant contends that the word “Free” is similar to the word “Extra”. It is pointed out by the learned counsel for the petitioner that the intention in showing such words or expressions on the label/advertisement, should be one which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package. Therefore, according to the learned counsel to uphold the argument advanced on behalf of the complainant the word or expression (here the word “Free”) must be one which must relate to the commodity contained in the package intended for sale for the price shown therein. According to the petitioner it states only about the quantity of the commodity contained in the package and not about the small pocket given as free. Even according to the complainant the actual package exhibited for sale contained the label declaration as to the net weight as 500 grams. Since the quantity of the commodity contained in the package leaves no doubt as to its weight, that it i