1 cr-apln-2198-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 2198 OF 2010 Lawrence & Mayo (Opt.) LMI Trust and Anr. ..Applicants Vs. S.A.Chaudhari and Anr. ..Respondents .... Mr. Mohd. Akram Bastivi Adv. i/b M/s. Harilal Thakar and Co. for Applicant Mr. S.A.Shaikh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE OF RESERVING ORDER : OCT., 11, 2010 DATE OF PRONOUNCING THE ORDER: NOV., 16, 2010 P.C.: 1 Heard the learned counsel for the applicants-original accused and the learned APP for the State. 2 The applicants are seeking quashing of Complaint No. 1356/SS/2005 which is pending before the learned Addl. Chief 2 cr-apln-2198-10 Metropolitan Magistrate, 24th Court, Borivali, Mumbai. 3 Applicant is a Private Charitable Trust, inter alia carrying on the business of retail trade in Spectacles, Spectacle Frames, Goggles, etc. The registered office of the applicant no.1 is at Shop No.6, Sangeeta `A ’ Wing, Opp. l Balbharti S.V. Road, Kandivali (W), Mumbai-400 067. On 31.10.2003 the respondent visited above referred premises of the applicant no.1 and and then proceeded to seize several packets containing Goggles, Frames, etc. as mentioned in the Seizure Memo dated 31.10.2003 as the package did not mention the required declarations, inter alia relating to the name and address of the manufacturers, date of manufacture, date of packing, date of import, identity of the commodity in the package, name and address of importer the maximum retail price and other declarations, as required under Rule 33 of the Standards of Weights and Measures (Enforcement) Act 1985 and under Rule 23(1), 29 and 33(1) of the Standard of Weights and Measures (Packaged Commodities) Rules 1977. The respondent no.1 proceeded to issue a Seizure Receipt dated 31.10.2003 bearing Sr. Nos. 0015282 and 0015283. Thus, complaint came to be lodged for offence under Rules 23(1) and 33(1) and 29(1) of the Standards of Weights and Measures (Packaged Commodities) Rules 1977 and under Section 33 punishable under Section 51 of the Packaged Commodities 3 cr-apln-2198-10 (Enforcement) Act, 1985. 4 The contention of the applicant is that at the time of receiving the sun glasses and frames from suppliers, the same are packed in individual polythene bags for protection or in an individual openable pouch or case and sometimes many of them are put in a single carton. Some of them are received with respective declaration affixed to the packaging. All the sun glasses and frames are kept on open display without Polythene bags or case or pouch in which they are supplied. The prospective customers individually have a look at them, then try them out to ascertain and find out the suitability, cosmetic and aesthetic value thereof and then decide either to purchase it or not. The decision to purchase the sun glasses and frames depends upon the personality, shape, size of the face or as per the liking of the concerned individual. There is no testing of sun glasses involved at this stage and the decision to purchase is based on the subjective elements and preferences which are consumer specific. Sun glasses not sold are once again put on display till the same are sold. After the same are selected by the prospective purchaser, the same are either placed in a case or pouch for protection and as a goodwill gesture. 5 It is further submitted that the sun glasses and frames received by them are not necessarily supplied in an 4 cr-apln-2198-10 individual case or pouch. The sun glasses sold by the purchasers are therefore, placed in cases or pouches procured separately by the petitioner. Before sale to the consumers the sun glasses or frames are not sealed and/or not packed in the absence of the consumers. The sun glasses are kept on open display for sale and are not put in cases in the absence of the customer. 6 The learned APP submitted that the main intent of the Act is to ensure that the customer knows what he is buying and the object of the Act, is for protection of the consumer in respect of origin of goods, as well as indication of price on the packed commodity to prevent cheating. The Act and the Rules provide, that in respect of packed commodities, in pursuance of recommendations of the International Organization of Legal Meteorology, on the packet net quantity by weight, measure or number, the identity of the commodity contained therein, the name of the manufacturer, the price of the package and other details should be indicated. He further submitted that if the necessary declarations are not made on the package, then offence is made out. 7 The learned counsel for petitioner submitted that the Act and Rules are applicable to “pre- packed commodity ” or “commodity in packaged form ” only. He contended that the Act and Rules are 5 cr-apln-2198-10 applicable to those commodities which are incapable of sale in any manner other than in a packaged form and the law in question has no application to packages which are packaged only for the convenience of the customers or for the purpose of safe transportation and for protection during storage and handling. 8 To better appreciate the contention, it would be necessary to reproduce Section 2(b) which deals with packaged commodity. Section 2(b) 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." Rule 2(l) defines “pre- packed commodity ” 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 in a package of whatever nature, so that the quantity of the product contained therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification, and the expression `package ’, wherever it occurs, shall be construed as a package containing a pre-packed commodity." Explanation (1) Where, by reason merely of the opening of a package, no alteration is caused to the name, quantity, nature or characteristic of the commodity 6 cr-apln-2198-10 contained therein, such commodity shall be deemed, for the purposes of these rules, to be a pre-packed commodity, for example, an electric bulb or fluorescent tube is a pre-packed commodity, even though the package containing it is required to be opened for testing the commodity; Explanation II:............ It would thus be clear from this definition that to fall within the expression of pre-packed commodity the article or articles must be placed in a package of whatever nature, so that the quantity of the product contained therein has a predetermined value and cannot be altered without the package or its lid or cap, as the case may be being opened or undergoing a perceptible modification. These are the criteria which will have to be applied before the article can be said to be packed commodity. 9 Considering the definitions in the Act and the Rules, the question really would be, whether sun glasses and frames can be said to be be items which can be said to be pre-packed commodity. The petitioner has averred that the articles come to them either in polythene bags or in individual openable pouches. Sometimes at the time of delivery they are put in a pouch which are normally on display for the customers to identify for the purpose of purchase. The package, therefore, is only 7 cr-apln-2198-10 a package for protection or safety of the article. The value of the product here i.e. sunglasses and frames whether inside the package or outside the package does not alter if the package is opened nor does it undergo a perceptive modification on the package being opened. The question of application of explanation 1, also will not arise as there is no testing and as the product need not be individually packed before the customer intends to buy it. The testing if at all by an individual who intends to purchase a sunglass is for the purpose of determining whether he should purchase the article considering his requirement, at which point of time the article is never in a package. 10 Learned counsel for the petitioner has relied on the judgment in the case of Philips India Ltd. vs. Union of India & Ors., 2002 Writ L.R. 140. A learned single Judge of the Madras High Court was considering a prayer for declaration that the provisions of the Act are not applicable to television sets, audio visual equipments and electronic items. The learned single Judge has dealt exhaustively with scientific terms in the field of electronics. The learned Judge has also considered a contention advanced on behalf of the petitioners that the Act and the Rules will have no application to packages which are packed only for the convenience of the customers 8 cr-apln-2198-10 for the purpose of safe transportation and for protection during storage and handling. The learned Judge considering the expression "pre- packed commodity" observed as under:- "Expression "Pre-packed commodity", in my considered view, would mean and include a commodity which is placed in a package of whatever nature so that the quantity or product contained therein has a pre-determined value and contents of such carton cannot be altered without the package or its lid or cap, as the case may be being opened or undergoing a perceptible modification." This judgment was considered by a learned single Judge of the Andhra Pradesh High Court in an unreported judgment in Eureka Forbes Limited vs. Union of India & Ors., decided in Writ Petition No.6547 of 1997 on 7th February, 2003. The learned Judge in respect of vacuum cleaners was pleased to hold that the commodity in packaged form must be salable only in packaged form and not otherwise. Dealing with the vacuum cleaner the Court held that the outer case box or carton is not a package as defined in the Act and the Rules. The package is not sealed and it is not intended to be a sealed package. The customer is entitled to remove the product from the cardboard box, inspect and handle, and then test the performance before buying the same. The Court then held that they are not sold by weight, measure, or number at all and they are only sold as single piece. The learned Judge thereafter proceeded to observe as under:- 9 cr-apln-2198-10 "In fact, the Act is not intended to cover all the manufactured goods kept in the packages, but limited to the packaged commodity, which are being sold by weight, or measure, or numerals, which are being sold in the packed form without unpacking such packaged commodity at the time of sale". 11 From the above discussion, considering the provisions referred to earlier, it would be clear that the expression, pre-packaged commodity would be applicable to commodities which are packed and the commodity packaged has a pre-determined value and that value cannot be altered without the package sold being opened at the time of sale or the product undergoes a modification on being opened. In the instant case the sun glasses whether they come in a box or not in so far as the retailer is concerned at the time when they are being sold to the consumer are not in a packaged form. Even if it is held that they come in a package before they are sold to the consumer by removing them from the box, the value does not alter nor does the product undergo a perceptible modification. The explanation is also not attracted because the package is not opened for the purpose of testing as in the case of electronic bulbs. The sunglasses are tested by the buyer to see whether it is suitable for him. I am therefore, of the considered opinion that sun glasses and frames whether it be just a frame or with lens is not a pre- 10 cr-apln-2198-10 packed commodity within the definition of the expression "pre-packed" commodity under Rule 2(l) of the Rules. In taking this view, I stand fortified by a decision of the Division Bench of this Court in Subash Arjandas Kataria Vs. State of Maharashtra 2006(5) Mh.L.J. 361, wherein it was held that sun-glasses cannot be said to be a pre-packed commodity and are not covered by Rule 2(1) of the Rules. Similar analogy would apply to frames. The action of the respondents, therefore, in issuing the notice was without the authority of law. In my opinion, the entire action including seizure was without the authority of law as the Act, and the Rules were not applicable to the goods seized. Once that be the case the petition will have to be allowed. In the light of that application is allowed in terms of prayer clause (a). [ SMT. V.K.TAHILRAMANI, J.]