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TMI Blog2011 (5) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in this Writ Petition is whether an advertisement made by the first petitioner, M/s. Mahindra and Mahindra Ltd., in India Today (Malayalam) in respect of their vehicle, Scorpio, in which the engine of the vehicle is described as having 109 BMP would constitute an offence under Section 11 of the Standards of Weights and Measures (Enforcement) Act, 1985, Sections 14 and 79 of the Standards of Weights and Measures Act, 1976 and under item No. 11 of Part II of the Second Schedule to Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988. 2. The first petitioner Company, established in 1945, is engaged in the manufacturing and marketing of motor vehicles under a general brand name Mahindra . The petitioners released an advertisement in which the engine was described as having 109 BHP, BHP being British Horse Power. The second respondent, the Inspector of Legal Metrology, Kanhangad, issued Ext. P1 show cause notice to the second petitioner, the Chief Operating Officer (Automotive Sector) of the first petitioner Company, stating that the description of power of the engine of the vehicle in question in the old imperial system unit of BHP (British Horse P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat vehicles are being sold in terms of number along with other relevant specifications like their weight, power, engine capacity, wheel base, etc. and hence the Standards of Weights and Measures Act, 1976 is applicable to the case on hand. The second respondent further pointed out in Ext. P3 that Section 3 of the Standards of Weights and Measures Act, 1976 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment. It was contended that the Motor Vehicles Act is established exclusively for the purpose of the regulation in the field of manufacturing and using of motor vehicles only and not for the establishment of standard units of weights and measures used or expressed . Ext. P3 was concluded by saying that the legal action mentioned in Ext. P1 notice will be continued and that if the petitioners want to compound the matter departmentally, they may appear before the second respondent. Mention is also made in Ext. P3 that the offender in the case being a Company, every person who was in charge of and was responsible for the conduct of the business of the Company as well as the Company will be held responsibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade under any enactment, or in any contract, deed or other instruments, for the time being in force, to a value expressed in terms of any unit of weight, measure or numeration other than that of a standard unit of weight, measure or numeration shall be construed as references to that value expressed in terms of standard units of weight, measure or numeration, as the case may be, converted at the rates specified in the schedule. Section 5 of the Standards of Weights and Measures Act, 1976 states that the base unit of length shall be metre. Section 6 provides that the base unit of mass shall be kilogram. Section 7 deals with base unit of time and it shall be second. Section 8 deals with base unit of electric current and it shall be ampere. Section 9 states that the base unit of thermodynamic temperature shall be kelvin. Section 10 provides that the base unit of luminous intensity shall be candela. Section 11 states that the base unit of amount of substance shall be mole. Section 12 provides that the Central Government may, by rules, specify, in relation to the base units of weight or measure, such supplementary, derived, or other units or standard symbols or definitions as the Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the standard weight or measure, shall be punished with fine which may extent to two thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine. 5. Relevant part of Item No. 11 of Part II of the Second Schedule to Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988 is extracted as follows : 11. Unit of power, radiant flux and heat flux. The unit of power, radiant flux and heat flux shall be the watt. (Symbol : W) Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988 reads thus : 5. Derived unit. - The unit defined and specified in the Second Schedule shall be derived units and the symbol assigned to each such unit in that schedule shall be the symbol of that unit and no other units shall be used for the entities specified in the Second Schedule except for the purpose of scientific or technological research. 6. The Motor Vehicles Act, 1988 is a consolidating and amending Act. Section 39 of the said Act provides for the necessity for registration of motor vehicles. An application in Form No. 20 as provided in Rule 47 of the Central M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be misled by mentioning the horse power in the certificate of registration of a vehicle, how could one assume that he would be misled by an advertisement in which the engine power is mentioned in horse power? If the power of the engine is mentioned in watts as provided in the Standards of Weights and Measures (National Standards) Rules, the intending purchaser would really be misled since in day-today life he refers to the horse power and not watts. When the manufacturers of vehicles, dealers of vehicles, educated and uneducated persons refer to the power of the engine of a vehicle, it is normally expressed in terms of horse power. The Court can take notice of the conduct of common people and the practice prevailing among people as the law is intended for the common people. If horse power of a vehicle is mentioned in the documents of title relating to a vehicle, why not it be mentioned in other records, advertisements, letters or other forms of communications? If people were to be convicted for mentioning the horse power of a vehicle or engine thereof, we have to convict and put in jail thousands of people. The Court shall not shut its eyes to the realities in life. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular number of articles is an example for such sale. By any stretch of imagination, could it be said that sale of a motor vehicle by the manufacturer is a sale by number? Sections 5 to 11 of the Standards of Weights and Measures Act, 1976 evidently do not apply to power of an engine of a motor vehicle. It is apposite to note here that Section 12 of the Standards of Weights and Measures Act, 1976 deals with only units of weight or measure and evidently it excludes the units of number, the contention raised in Ext. P3 is that vehicles are being sold in terms of number along with other relevant specifications like their weight, power, engine capacity, etc. and, therefore, the Act is applicable in the case. This contention raised by the respondents is a far fetched one. The penal provisions of a statute cannot be applied unless the offence is clear and specific. A doubtful or a possible interpretation cannot be made the basis for initiating prosecution. It is to be noted that Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985 provides that the offender shall be punished with fine which may extent to Rs. 2,000/- and, for the second or subsequent offence, with im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Enforcement) act, 1985. If a vehicle having one horse power is described as having 745.699 871 582 270 22 watts or 735.49875 watts, as the case may be, in an advertisement in respect of that vehicle, certainly a common man would be confused. Section 79 of the Standards of Weights and Measures Act, 1976 cannot be imported into Section 11 and Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985. Item (3) of the Schedule deals with volume where gallon, barrel etc. are mentioned. It is common knowledge that in newspapers and visual media across the world, price of petroleum products is referred to in barrels or gallons. Likewise, the engine power of a vehicle is mentioned in horse power, by the common man. He understands only when the power is mentioned in horse power and not in watts. An advertisement is intended to convey useful information to the intending purchaser. 11. Sri. V. Chitambaresh, learned Senior Counsel for the petitioners submitted, after referring to the documents produced by the petitioner submitted, after referring to the documents produced by the petitioners, that in United States of America, Spain, Australia, Switzerland, UAE, Germany ..... X X X X Extracts X X X X X X X X Extracts X X X X
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