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TMI Blog2006 (7) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner did not compound the case at the Departmental level within 15 days of the date of receipt of the notice the respondents will be bound to lodge a case against the petitioner in a Court of law. It is this order which is the subject-matter of challenge before us. 2. It is the case of the petitioners that they are manufacturers and dealers in watches and watch components. The watches are sold under the brand name or trade mark "Titan" and are marketed through various retail dealers appointed by them. The watches are kept for display and sale and/or storage in showrooms and outlets situate at various places throughout the city of Mumbai and the State of Maharashtra and are sold by the piece. Customers, it is contended, insist upon inspection/checking and handling the watches and some times on wearing the same on his/her wrist, before making the decision whether to purchase the watch or not. Many a time customers also require the strap of the watch to be changed and replaced with a new/different strap. The goods by their very nature are such that they cannot be sold in a packaged form, but have to be allowed to be handled and inspected and even worn by the customer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioners that certain directions were given. In spite of that the Malad Division of the respondent No. 4 in gross violation of the order dated 22nd October, 2001 carried out search operations in the Malad (West) godown of the petitioner wherein the petitioners were forced to sign an undertaking by the officers of the respondent No. 4. It is not necessary to refer to the various proceedings that transpired. Suffice it to say that consequent to the hearing, the petitioners have been informed by letter dated 18th June, 2002 that the Rules were applicable to the petitioners goods and if the petitioners did not compound the same, then action will be taken according to law. 5. Counsel have advanced arguments and also relied upon the judgments which will be averted to in the course of the discussion. We may gainfully make a reference to an unreported judgment of this Court in the case of Subhash Arjandas Kataria v. State of Maharashtra and Ors. in Writ Petition No. 120 of 2004 decided on 5th May, 2006 reported in 2006 (4) AIR Bom R 570. The stand of the respondents there also was that as sun glasses are kept in packages, the provisions of the Act and the Rules are applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the package. From the above, it is submitted by the learned Counsel that the Act and the Rules have laid stress on the word "package." In other words what we have to consider is the package and not the contents of the package. It is pointed out that goods could be packed for the purpose of safety while being transported or the like and not necessarily in a form where they cannot be sold otherwise than in a packaged form. 7. On the other hand on behalf of the respondents learned Counsel has taken us to the various Rules and the judgments of the Apex Court to point out that the object of the Act is to protect the consumer. Once the goods are in a packaged form the provisions of the Act and Rules will apply. The object behind doing so is that the consumer is protected from being charged exorbitant charges. It is not necessary to refer to all the Rules as those Rules will apply if we hold that they are pre-packed commodity in a package. Our attention is invited to the judgment of the Apex Court in Criminal Appeal Nos. 963-965 of 1999 between the State of Kerala and Ors. v. Flora and Ors. dated September, 17, 1999. The issue before the Apex Court was in the matter of cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings and in view of that the Tribunal proceeded to pass an order. The appeal preferred before the State Consumer Disputes Redressal Commission was disposed of with some directions. The appellant approached the National Consumer Disputes Redressal Commission which also dismissed the revision. The contention was that it was the manufacturer alone who was liable and not the Distributor. That was rejected and the Apex Court noted that what is important was the stress upon the package and not upon the person manufacturing or selling the package. In our opinion none of the judgments cited on behalf of the respondents have answered the issue finally. 8. We may gainfully, reproduce Section 2(b) of the Act which reads as under: 2(b) "commodity in packaged form" means commodity packaged, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale, whether wholesale or retail. We may now refer to Rule 2(1) of the Rules, which defines pre-packed commodity. Rule 2(1) reads as under: pre-packed commodity with its grammatical variations and cognate expressions, means a commodity or article or articles which, without the purchaser being present, is placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. If the definition is considered without the explanation, the electric bulb will not fall within the expression of pre-packed commodity. By the explanation, such a prepacked commodity, because it has to be unpacked from the package and even if there be no perceptible change or alteration in value is included in the definition as a prepacked commodity. In other words apart from what is set out in the definition, other commodities which even if removed also do not undergo a perceptible change or decrease in value will still be treated as a prepacked commodity, if removed as and by way of testing. It is based on that the learned Counsel for the respondents contends that every commodity in a package, will be a prepacked commodity. Let us, therefore, try to understand the true import of the explanation. The Legislature in its wisdom, therefore, had included goods in a packaged form, which otherwise would not fall within the definition of pre-packed commodity. A proper reading or consideration, can only means those commodities which intrinsically require to be packed and without being packed they cannot be sold, and merely because they are removed from the package for testing will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as advanced as pointed out earlier is that the definition of the expression "pre-packed commodity" and the Explanation 1 will bring all commodities once they are packed subject to the provisions of the Act and the Rules. We have rejected that contention. In our opinion the test would be firstly whether by the very nature of the commodity it requires to be packed before it can be sold. Secondly, in the event a package is opened does it undergo any perceptible change or reduction in value. If these twin tests are met then only can it be said that the package contains a pre-packed commodity. Merely because the commodity is packed for protection during conveyance or otherwise or in the fancy package, would not result in the package becoming a pre-packed commodity. The explanation as we have explained earlier is only to include those commodities which by the very nature of goods have to be packed and on being opened do not undergo a change in the pre-determined value or a perceptible modification. If the explanation was not included, commodities like electronic bulbs which otherwise by their very nature required to be packed, before being sent from the manufacturing site would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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