IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.MC.No. 677 of 2006() ------------------------------------- CC.900/2005 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER(S): 2ND ACCUSED --------------------------------------------- HINDUSTAN LEVER LIMITED, 165/166, BACKBAY RECLAMATION, MUMBAI-400 020. REP.B Y LAW OFFICER, JIKKU GEORGE JACOB. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE BY ADV.SRI.E.K.NANDAKUMAR RESPONDENT(S): COMPLAINANT AND STATE ------------------------------------------------------------------ 1. SENIOR INSPECTOR, LEGAL METROLOGY, KASARAGOD (CIVIL STATION - KASARAGOD). 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.677 of 2006 -------------------------- ORDER Whether showing the name of the manufacturer as marketed by on the package would violate the mandatory requirements of Rule 6(1)(a) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977, as it stood before the amendment? It is the question to be settled in the petition. 2. First respondent lodged Annexure-D complaint before Chief Judicial Magistrate's Court, Kasaragod against the petitioner. It was taken cognizance as C.C.No.900/2005 for the offence under Section 33 and punishable under Section 51 of Standards of Weights and Measures (Enforcement)Act, 1985 read with Rule 6(1)(a) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as 'the Rules'). The case of the first respondent is that on 17.6.2005, the Senior Inspector of Legal Metrology inspected the CRMC 677/06 2 Margin Free Market, Civil Station Junction, Kasaragod and found Brooke Bond Red Label Tea, marketed by Hindustan Lever Ltd., Mumbai, being sold without bearing the declaration of the name and address of the manufacturer and packer of the commodity. In such circumstances, it is alleged that provisions of Rule 6(1)(a) of the Rules is violated and therefore, the offence is committed. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings contending that when petitioner is the manufacturer as defined under the Rules and name of the petitioner has been shown, there is substantive compliance with the provisions of Rule 6(1)(a) and hence, the prosecution is only an abuse of process of the court. 3. Learned senior counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Learned senior counsel pointed out that Annexure-A(1) and A(2) label of Brooke Bond Red CRMC 677/06 3 Label Tea shows the name of the petitioner and when petitioner is the manufacturer, it is in substantive compliance with the provisions of Rule 6(1)(a) of the Rules and in addition to being the manufacturer, when the commodities are marketed by the manufacturer, it is shown that it is marketed by the manufacturer and therefore, it cannot be said that there is violation of the requirements provided under Rule 6(1)(a) of the Rules. 5. Argument of the learned Public Prosecutor is that when Rule 6(1)(a) of the Rules mandates that the label shall contain a definite and plain declaration showing the name and address of the manufacturer or where the manufacturer is not the packer, the name and address of the manufacturer and packer and for any imported package, the name and address of the importer, showing the name of the petitioner as marketed by is not in compliance with the mandatory provisions of Rule 6(1)(a) of the Rules and therefore, there is violation, which is an offence under Section 33, punishable under CRMC 677/06 4 Section 51 of Standards of Weights and Measures (Enforcement) Act. 6. Rule 6(1)(a) of the Rules provides that every package shall bear thereon or on a label securely affixed thereto, a definite, plain and conspicuous declaration, made in accordance with the provisions of the Chapter, as to the name and address of the manufacturer, or where the manufacturer is not the packer, the name and address of the manufacturer and packer and for any imported package the name and address of the importer. Rule 2(h) of the Rules defines a manufacturer as follows: “Manufacturer” in relation to any commodity in packaged form, means a person who, or a firm or a Hindu undivided family which, produces, makes or manufactures such commodity and includes a person, firm or Hindu undivided family who or which puts, or causes to be put, any mark on any packaged commodity, not produced, made or manufactured by him or it, and the mark claims the commodity in the package to be a commodity produced, made or manufactured by such person, firm or Hindu undivided family, as the case may be.” CRMC 677/06 5 It is thus clear from the definition that a manufacturer could either be a person or firm which produces or makes or manufacturers such commodity. The inclusive definition widens the definition to include a person or firm who or which puts or causes to put any mark on any packaged commodity, though not produced, made or manufactured, by him or it. Hence, petitioner is definitely a manufacturer as defined under Rule 2(h) read with Rule 6(1)(a) of the Rules. 7. When the manufacturer is not the packer, Rule 6(1)(a) provides that in addition to the name of the manufacturer, name of the packer should also be shown. When manufacturer is also the packer, only the name of the manufacturer need be shown. When one name alone is shown, it can only be the name of the manufacturer, even though it is not specifically shown that he or it is the manufacturer. When petitioner is the manufacturer and name of the petitioner is shown, as mandated under Rule 6(1)(a) of the Rules, though the name is CRMC 677/06 6 not qualified as the manufacturer, he or it could only be the manufacturer because, in a case where the manufacturer is also the packer, only the name of the manufacturer need be shown. It is not provided that it should be shown that he or it is the manufacturer and also the packer. Only if manufacturer is not the packer, names of the manufacturer and packer need be shown. Suppose, in a case where the manufacturer is not only the manufacturer but also the packer and is also marketing the commodity, by showing that the product is marketed by the manufacturer, it cannot be said that provisions of Rule 6(1)(a) of the Rules are violated. It is not necessary to qualify the name of the manufacturer, if one name alone is shown, because, if the manufacturer is also the packer, it is not necessary to show the names of the manufacturer as also the packer. When only one name is shown, he or it shall be the manufacturer. In such a case, it enables the consumer to know the name of the manufacturer. Annexure-E communication CRMC 677/06 7 received by the petitioner from Ministry of Food and Consumer Affairs, clarifying that provisions of Rule 6(1)(a) of the Rules does not require it necessary to qualify the name of the manufacturer with a phrase “manufactured by”, strengthens the said conclusion. In such circumstances, when there is substantive compliance with the provisions of Rule 6(1)(a) of the Rules, continuation of the proceedings is only an abuse of the process of the court. Petition is allowed. C.C.No.900/2005 on the file of Chief Judicial Magistrate's Court, Kasaragod is quashed. 28th September, 2010 (M.Sasidharan Nambiar, Judge) tkv