1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.97 OF 2011 Hindustan Coca-Cola Beverages Private Limited. ........ Petitioners. V/s. Inspector of Legal Metrology and 3 ors. ......... Respondents. Mr. V. V. Tulzapurkar, Senior Advocate & Mr. A. N. S. Nadkarni, Senior Advocate with Mr. Amit Jamsandekar, Mr. Shivanand Singbal, Mr. Prasad Dhande, Mr. Sidhartha Srivastava, Advocates for the petitioners. Mr. A. Kakodkar, Addl. Govt. Advocate for respondents No.1, 2 & 4. Mr. Mahesh Amonkar, Central Govt. Standing Counsel for respondent No.3. CORAM :- S.C. DHARMADHIKARI & F.M. REIS, JJ. Date :- 14th March, 2011. P.C. : - The petitioners have approached this Court for issuance of a writ of certiorari or any other appropriate writ, order or direction, calling for the records pertaining to seizure of their goods and more particularly set out in seizure notice dated 8th December, 2010 at Annexure “A” to the petition. 2 2. Our attention is invited to this annexure by Mr. Tulzapurkar, learned Senior Counsel appearing on behalf of the petitioners and it is contended that the seizure notice dated 8.12.2010 issued to the petitioners states that out of 48,000 bottles of Sprite (300 ml.), 47,920 bottles of the same are kept in the custody of the petitioners, but the petitioners are directed not to sell the packages of bottles of Sprite 300 ml., Batch No.314 until permission is obtained from the Legal Metrologist. 3. Mr. Tulzapurkar submits that the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter, referred to as “the Rules”) are referred to in the seizure memorandum, particulars of the articles seized are stated and the reasons for seizure are mentioned as tests being carried out and the tests indicating that one package shows an error in deficiency greater than the maximum permissible error. The packages were ready for distribution and sale. 4. Mr. Tulzapurkar has invited our attention to Rule 24 of the Rules and submits that the Rules set out procedure for examination of and determination of quantity and error in packages at the premises of 3 the manufacturer or packer. Sub-rule (4) thereof contemplates that if it appears from the report referred to in sub-rule (3) that the statistical average of the net quantity contained in the packages drawn as sample is less than the quantity declared on the packages or on the labels affixed thereto; or any such package shows an error in deficiency greater than the maximum permissible error, the Director or the authorised person shall, if for good and sufficient reasons, requested by the manufacturer or packer or his authorised agent so to do, take out as soon as may be practicable, fresh samples and carry out fresh tests in accordance with the provisions of these rules and where fresh tests are made, the Director or the authorised person, as the case may be, shall collect by way of reimbursement, from the manufacturer or packer, such sum mentioned for the services so rendered. Our attention has been invited to proviso to sub-section (4). It is submitted that where fresh tests are carried out, no package contained in the batch, which was previously tested under the Rule, shall be sold or distributed by the manufacturer or packer, as the case may be, unless the provisions of the sub-rule (5) and sub-rule (6) of Rule 24, as the case may be, are complied with. 4 5. Inviting our attention to Rule 25 of the Rules, it is contended that the Rule provides for any action to be taken on completion of examination of packages at the premises of the manufacturer or the packer, based on the report mentioned in Rule 24(3), but that itself is not decisive because there is a proviso below Rule 25 which states that no such punitive action shall be taken if fresh tests are carried out as per Rule 24(4). 6. On instructions, Mr. Tulzapurkar submits that the petitioners, without prejudice to their rights and contentions, and particularly that Rule 24(4), clauses (a) and (c) cover a distinct situation, are ready and willing to have samples being drawn and fresh tests being conducted by the Director or the authorized person. Mr. Tulzapurkar, on instructions, further states that the tests may be carried out even today or tomorrow, as the case may be, subject to the Director’s or the authorized person’s convenience. 7. On the other hand, it is contended on behalf of the respondents that the manufacturer or the packer or his authorised agent has to make a request in terms of Rule 24 (4) and it is only if such a request is good for sufficient reason that the tests have to be 5 carried out afresh and even the aspect, 'whether' it is permissible do so, is covered by the Rules. In the instant case, no application was made. The seizure is effected as early as on 8.12.2010 and today, in the month of March, 2011, without any particulars being set out in the petition, an oral request is made. 8. In ordinary circumstances, we would have gone into the rival contentions and even rendered a decision on the interpretation of the Rules, however, in the facts peculiar to this case, we indicated to the Counsel appearing for the parties that if it is permissible to do so, fresh tests may be carried out by the Director, particularly because the samples are still lying with the petitioners with proper identification marks and they have not been disposed of. The petitioners are ready and willing to bear expenses and charges for such fresh tests, as well. The Controller is present in the Court. After seeking instructions from him, Counsel appearing on his behalf, submits that the only apprehension of the Controller is that all manufacturers or the packers whose goods and articles are seized for similar acts would come with a request in terms of these sub-rules belatedly, and any order being made in the present petition would be cited as a precedent. 6 9. Save and except the reservation with regard to these tests being carried out citing this order as a precedent in future cases the Controller has no objection to fresh tests being carried out. Accordingly, it is agreed between the parties that fresh tests in terms of Rule 24(4) would be carried out and the samples/goods which are seized and kept separately by the petitioners can be inspected today at 3.00 p.m. in the presence of a representative of the petitioners. The inspection will be carried out and the tests also conducted in terms of these Rules by the Director or the authorised person. Depending upon the contents of the report, which would be prepared, after the fresh inspection and tests, the authority may proceed to take such action as is permissible in law against the petitioner. 10. In the light of the above stated agreed position, we dispose of this petition, with direction that the fresh tests be carried out as agreed at 3.00 p.m. today and the authority, on inspection of the samples/goods and the tests carried out on the same, may proceed to take further action in accordance with law. However, in the light of the above stated agreed position, the Memorandum dated 24.2.2011 stands withdrawn and will not be acted upon by the Authority, in any manner whatsoever. 7 11. It is clarified that this order is passed in the peculiar facts of this case and shall not be cited as a precedent in future cases, particularly of seizure by the Authority under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 or the statutory enactment itself. 12. In the light of the above orders and directions, we have not gone into the rival contentions either on the interpretation of the Rules or on the merits of the controversy and each of the submissions made by the parties are kept open. This order is passed in the presence of the authorised representative of the petitioners and the Controller. In such circumstances, without waiting for any authenticated copy of the order or operative directions, the tests may be carried out. S.C. DHARMADHIKARI, J. F.M. REIS, J. ssm.