9911796707
TMI Blog2009 (4) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... non, J. Shri Antony Dominic, for the Petitioner. Government Pleader, for the Respondent. JUDGMENT The petitioner is challenging Ext. P2, P6 and P7 proceedings issued by the Respondents 1 and 2; whereby prosecution steps are caused to be instituted against the petitioner alleging the offence under Sec. 39(5) of the Standards of Weights and Measures Act, 1976 ( Act in short) and Rule 5 Schedule III Clause No. 17 (c) of the Standards of Weights and Measures (Packaged Commodities ) Rules, 1977 ( Rules in short). 2. The petitioner is engaged in the manufacture and marketing of various consumer products including Pears Transparent Soap . In furtherance to the steps for promoting the said Toilet Soap the petitioner-company introduced a Scheme called Super Saver Offer in a Multi-Piece Package containing 3 pre-packed soaps of 75 gms each, with a total net weight of 225 gms, to be sold for a maximum retail price of Rs. 50 instead of Rs. 58.50 (inclusive of taxes); thus stating that there was a benefit of Rs. 8.50 to the Consumer. It is said, that the above scheme was being pursued in strict compliance with the relevant provisions of the Act and the Rules and that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd respondent. Yet another Counter Affidavit has been filed by the 1st respondent (dated 18-8-03) reiterating almost similar contentions as raised by the 2nd respondent; the sum and substance of which are : (i) The package in question cannot be considered as a multi-piece package as the individual unit contained therein is not capable of being sold separately, (ii) The net weight of the package being 225 gms (containing 3 separate Units of 75 gms each), it is a non-standard package and hence involves violation of Section 39(5) of the Act and Rule 5 of the Rules. 7. To appreciate the factual position involved, it is very much necessary to have a look at Sec. 39(5) of the Act and Rule 5 of the Rule as extracted below :- Section 39(5) Where the Central Government has reason to believe that there is undue proliferation of weight, measure or number in which any commodity is, or reasonably comparable commodities are, being packaged for sale, distribution or delivery and such undue proliferation impairs in the opinion of that Government, the reasonable ability of the consumer to make a comparative assessment of the prices after considering the net quantity or number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumer is clearly projected and highlighted. 9. Sri. A.M. Shafeque the learned Sr. Counsel for the petitioner submits that the idea and understanding of the respondents 1 and 2 as to the scope, object and requirement of the relevant provisions of law are thoroughly wrong and misconceived. The learned Sr. Counsel further submits that the stand taken by the said respondents that the package involved is not a multi-piece package is per se wrong and perverse in all respects, particularly in view of the definition of the term multi-piece package as given under Rule 2(j) of the Rules which is extracted below : Rule 2 (j) (j) multi-piece package means a package containing two or more individually packaged or labelled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole. Illustration :- A package containing 5 toilet soap cake, net weight 20g each of total net weight of 100g is a multi-piece package: . The definition clearly shows that the instance of retail sale can either be as individual unit or the package as a whole and it does not stipulate that both the limbs should be satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules defining multi -piece package and the scope of additional declaration under Rule 17, it was to the chagrin of the 2nd respondent, who simply issued Ext. P4 rejecting Ext. P3 explanation and holding that Rule 17 of the Packaged Commodities Rules was not attracted to the case in hand the package not being a multi-piece package since the individual pieces contained inside were neither packaged nor labelled to be suitable for retail sale as individual pieces. Since this Court has already held that the package in question is a multi-piece package as defined under Rule 2(j) of the Rules, the reasoning given by the Respondents cannot be held as correct or sustainable. 12. Rule 17 of the Rules is very much relevant, which is extracted below : 17. Additional declarations to be made on multi-piece packages :- (1) Every multi-piece package shall bear thereon, in addition to the declaration required to be made under any other provisions of these rules, a declaration of- (a) the number of individual pieces contained thereto : (b) the retail sale price of the multi-piece package . Provided that where individual pieces contained in a multi-piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant to note that a similar contention was mooted by the counter part of the respondents 1 and 2 situated in Maharashtra, stating that the declaration as contemplated under sub-rule (2) of Rule 17 is actually to be made on the individual units and not on the multi- piece package , since the words used it shall carry denote the individual unit alone . Referring to the relevant facts and figures, it was held by a Division Bench of the Mumbai High Court (Aurangabad Bench) in Crl. Writ Petition No. 223/07 that the word it appearing in sub rule (2) of Rule 17 denotes the multi -piece package and the term they in the very same sub Rule denotes the individual packets . It was held by the Bench that the Declaration in the case of multi-piece package , to be made under Rule 17(2) ) is on the multi-piece package ( it ), stating that the individual units ( they ) contained therein were not intended for retail sale. This being the position, there is absolutely no merit or substance in the contentions raised by the respondents holding that the package in question is not a multi-piece package and that Rule 17 is not attracted to the case in hand. 15. The impugned proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the multi-piece package should also be in conformity with the entry under the 3rd Schedule or whether compliance of Rule 17 alone is enough, had come up for consideration before this Court in Crl. M.C. 2714/03 filed by the petitioner herein and 2 others (very same persons whose names have been shown by the 2nd respondent in Ext. P4). After analyzing the provisions of law, it was specifically held by this Court that there was no prohibition in the multi-piece package being sold in one unit, in which event, what is required is only the compliance of Rule 17(1) and 17(2) of the Rules and not the stipulation provided under entry No. 17(b) of the 3rd Schedule. In the instant case, the only difference is that the relevant entry is clause 17(c) of the 3rd schedule, instead of clause 17(b) of the very same Schedule, dealt with in former case. 18. Viewed in the above circumstance, the challenge raised by the petitioner against the impugned proceedings taken by the respondents 1 and 2 is very much justified. The impugned orders/proceedings Ext. P2, P6 P7 are set aside. It is declared that the multi-piece package defined under Rule 2(j) of the Rules, on satisfying the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
