Full Judgment Text
THE STATE OF MAHARASHTRA AND ORS.
v.
RAJ MARKETING & ANR.
(Civil Appeal No. 1119 of 2010)
AUGUST 26, 2011
[P. Sathasivam and H.L. Gokhale, JJ.]
[2011] 10 SCR 722
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. This appeal by State of Maharashtra is directed
against the judgment and order dated 08.12.2006 passed by the High Court
of Judicature at Bombay in Writ Petition No. 2982 of 2006 whereby the High
Court allowed the writ petition of the Ist respondent herein.
2. The issue involved in this appeal is whether Candy man, Minto-Fresh,
Kitchens of India, Badam Halwa and Ashirvaad Atta etc. can be considered
as a “ wholesale package ” within the definition of the expression “ wholesale
package ” under Rule 2(x) of the Standards of Weights and Measures
(Packaged Commodities) Rules, 1977 (hereinafter referred to as “the Rules”).
3. Brief facts:
a) The respondent is a firm carrying on the business of buying and selling
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various products and they used to store these products in their godown at
Gali No.8, Senior Tyre Compound, N.S.S. Road, Narayan Nagar, Ghatkopar
(W) Mumbai.
b) On 31.10.2006, the second appellant/Inspector of Legal Metrology,
Mumbai visited the first respondent’s godown and seized various packages of
packed commodities such as Candy man, Minto-Fresh, Kitchens of India,
Badam Halwa and Ashirvaad Atta etc. vide seizure memo bearing Nos.
0114769 and 0114770 dated 31.10.2006. The reason for seizure, according
to him, is that on the wholesale packets, the details regarding the name and
addresses of the manufacturer, cost, month, year etc. has not been declared
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and also the retail sale price was not mentioned which is in violation of the
Rules.
c) A show cause notice dated 06.11.2006 has been issued by the
appellant to the respondent for the violation of Section/Rule 33 and 39 read
with Rule 23(1) and 6 of the Rules. It was mentioned in the said notice that
the offence is compoundable as per Section 73 of the Standards of Weights
and Measures Act, 1976 and Section 65 of the Standards of Weights and
Measures (Enforcement) Act, 1985.
d) On 18.11.2006, the respondents, vide their letter, replied to the notice
dated 06.11.2006.
e) On 28.11.2006, the respondents filed Writ Petition being W.P. No.
2982 of 2006, inter alia, for quashing the seizure memo dated 31.10.2006
and notice dated 06.11.2006.
4. The High Court, by impugned order dated 08.12.2006 allowed the writ
petition by holding that the packages containing Candy man, Minto-Fresh,
Kitchens of India, Badam Halwa and Ashirvaad Atta are not wholesale
package within the definition of the expression “ wholesale package ” under
Rule 2(x) of the Rules.
5. Questioning the said order of the High Court, the State filed the above
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appeal by way of special leave.
6. Heard Mr. Chinmoy Khaladkar, learned counsel for the appellant-State
and Mr. Ravinder Narain for respondent No.1.
7. Rule 2(x) of the Rules define “ wholesale package ” to mean:
“(x) “wholesale package” means a package containing-
(i) a number of retail packages, where such first mentioned package is
intended for sale, distribution or delivery to a intermediary and is not
intended for sale direct to a single consumer; or
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(ii) a commodity sold to an intermediary in bulk to enable such
intermediary to sell, distribute or deliver such commodity to the consumer
in smaller quantities; or
(iii) packages containing ten or more than ten retail packages provided
that the retail packages are labeled as required under the rules.”
8. Rule 29 of the Rules read as under:
“29. Declaration to be made on every wholesale package. - Every
wholesale package shall bear thereon a legible, definite, plain and
conspicuous declaration as to,-
(a) the name and address of the manufacturer or where the manufacturer
is not the packer, of the packer;
(b) the identity of the commodity contained in the package; and
(c) the total number of retail packages contained in such wholesale
package or the net quantity in terms of standard units of weights,
measures or number of the commodity contained in wholesale package:
Provided that nothing in this rule shall apply in relation to a wholesale
package if a declaration similar to the declaration specified in this rule, is
required to be made on such wholesale packages by or under any other
law for the time being in force.”
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9. In order to attract violation of the Rules referred above, the package
seized must fall within the expression “ wholesale package ”. A package used
merely for protection during conveyance or safety would not be pre-packed
commodity for the purpose of the Act and the Rules. As rightly observed by
the High Court that for the package to be treated as a wholesale package, the
package must not be a secondary package. In that event, we have to find out
whether the secondary package is only for safety, convenience or the like. As
demonstrated before the High Court, the counsel appearing for the Ist
respondent placed all the above-mentioned products before us i.e. both the
wholesale package as well as the retail package. The Department’s only
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contention was that the secondary package in which the wholesale package
was packed does not contain the said information. In the light of the
provisions which we have referred above and on verification of the products
which were shown to us, we are of the view that the secondary outer packing
for transportation or for safety of the goods being transported or delivered
cannot be described as a wholesale package.
10. On going through the statutory provisions which we have adverted to
in the earlier paras and on verification of the products which were shown to
us during the course of argument, we fully agree with the conclusion arrived
at by the High Court. Consequently, the appeal fails and the same is
dismissed with no order as to costs.
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