IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 OP.No. 2089 of 2000(W) --------------------------------- PETITIONER(S): ----------------------- M/S.CHILTON REFRIGERATION INDUSTRIES, C.L.ANAND LANE, M.G.ROAD, ERNAKULAM, COCHIN 682 011, REP.BY PROPRIETOR P.G.CHILPRAKASH. BY ADVS. MR. T.SAJI MR.T.K.SHAJAHAN RESPONDENT(S): ------------------------- 1. THE UNION OF INDIA, REP.BY ITS SECRETARY, MINISTRY OF FOOD AND CIVIL SUPPLIES (DEPARTMENT OF CIVIL SUPPLIES), KRISHI BHAVAN, NEW DELHI 110 001. 2. THE DIRECTOR OF STANDARDS OF WEIGHTS AND MEASURES, 12-A, JAMNAGAR HOUSE, NEW DELHI 110 001. 3. THE CONTROLLER OF LEGAL METROLOGY, THIRUVANANTHAPURAM. 4. THE INSPECTOR OF LEGAL METROLOGY THIRUVANANTHAPURAM. BY ADVS. MR.P.HARIDAS SMT.S.AMBIKA DEVI, ADDL.CGSC MR.M.R.JAYAPRASAD, CGC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.3309/2000 IN OP. NO.2089/2000 Dismissed 18.02.2009 SD/- HARUN-UL-RASHID, JUDGE APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE SHOW CAUSE NOTICE NO.403/99 DT. 6.12.99 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P2:- COPY OF THE REPLY NO.CRI/99-2000-359 DT. 22.12.99 SENT BY THE PETITIONER TO THE 4TH RESPONDENT. P3:- COPY OF THE NOTICE NO.403/99 DT. 1./1.2000 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER. P4:- COPY OF THE ORDER DT. 26.9.98 IN CMP. 29308/98 IN OP. NO.16488/98 OF THE HIGH COURT OF KERALA. P5:- COPY OF THE ORDER IN CMP. 39396/98 IN OP. NO.22360/98 DT. 13.11.98 OF THE HIGH COURT OF KERALA. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- O.P.NO.2089 OF 2000 ---------------------------- DATED THIS THE 18TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioner is engaged in the sale of compressors, air- conditioning and refrigerating appliances and its allied items. The products distributed by the petitioner is packed in paper cartons to protect the same from damage in transit from the factory to the warehouse and from there to the distributors/dealers. The items of products distributed by the petitioner includes “Drier Indfos DM 50” and “Hand Shutt of Valve GM”. It is stated that the said items are not intended for sale to the ultimate consumer as the items are normally purchased by manufacturers of branded air-conditioners, water coolers etc. The above said items and other allied items cannot be sold. The products are covered by paper cartons only to protect the same from damage in transit. It is further submitted by the learned counsel for the petitioner that the items are to be -2- O.P.No.2089/2000 opened from the packet and to be tested by using refrigeration gas/air pressure. For the purpose of testing, the petitioner has kept refrigeration gas and air pressure equipment in the premises. The items will be tested in the presence of the customer and if the customer is satisfied, the same will be sold to him. It is stated that unless the articles are tested and found fit, no customer can take the articles. At the same time it is submitted that spare parts items distributed by the petitioner are sold, after opening the package. 2. It is contended by the learned counsel that since the products distributed by the petitioner are not packed commodities as defined in the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Packed Commodities) Rules, 1977, the officers under the 3rd respondent frequently inspected the premises of the dealers of the petitioner and seized products on the ground of contravention of the provisions of the Act and Rules. The petitioner refers to the inspection conducted by the 4th respondent-Inspector, Legal -3- O.P.No.2089/2000 Metrology, Thiruvananthapuram on 15/10/1999 in the trade premises of one of his dealers, namely, “Karthika Traders”. The 4th respondent seized ''Drier Indfos DM 50'' and ''Hand Shutt of Valve GM'' under the provisions of the Standards of Weights and Measures Act and Standards of Weights and Measures (Packed Commodities) Rules. The petitioner received a show cause notice dated 16/12/1999 produced as Ext.P1. Ext.P2 is his reply. Dissatisfied with Ext.P2 reply, again the 4th respondent issued another notice produced as Ext.P3. 3. In this original petition the petitioner seeks for a direction to restrain the respondents, their officers, servants and agents from taking any action against him in implementation of the provisions of the Standards of Weights and Measures Act, 1976, the Standards of Weights and Measures (Enforcement) Act, 1985 and the Standards of Weights and Measures (Packed Commodities) Rules, 1977 including launching of prosecution and initiation of civil proceedings. The petitioner also seeks to declare that the provisions of Standards of Weights and Measures -4- O.P.No.2089/2000 Act, 1976, the Standards of Weights and measures (Enforcement) Act, 1985 and the Standards of Weights and Measures (Packed Commodities) Rules, 1977 do not apply to the products distributed by petitioner. 4. The Division Bench of the Bombay High Court in Titan Industries Ltd., Mumbai v. union of India and others (AIR 2006 Bombay 336) also taken a similar view. The question as to whether a commodity is packed commodity or not was discussed in detail and the principles are laid down. 5. The learned counsel for the petitioner brought to this Court's attention Section 2(b) of the Act, which means a commodity packed whether in any bottle, tin, wrapper or otherwise in units suitable for sale whether wholesale or retail. According to him, to attract the provisions of the said Act the product must be put in and sold in packages. It is also submitted that Rules 4 and 6 make it clear that they are applicable to cases in which pre-packed commodities are intended to be sold, distributed, delivered or otherwise transferred by weight, measure -5- O.P.No.2089/2000 or number. 6. This Court had occasion to consider the similar question in O.P. 16488/98. The contention of the petitioner in that case that devices like loud speaker, stereos sets, Television or radio sets and other equipment like refrigerator are not packed goods and these are not sold in packages. Packages are used to protect it from damages during transit from factory to warehouse and from warehouse to shopkeeper. The point considered in that case is whether the aforesaid devices and equipments like refrigerators, stereo sets etc. are packaged goods. This Court examined the title to the Act, the definition clause and the nature and character of the commodities and held that the provisions therein are applicable only in respect of trade or commerce by weight or measure or by number. It will be sold only in single number. Referring to the definition of ''commodities in packed form'' this Court observed that the equipments as aforesaid are sold with freedom for the customer to inspect and satisfy regarding its appearance and functioning and therefore, it cannot -6- O.P.No.2089/2000 be taken that it is a commodity sold in package. 7. Going by the nature and character of the two items namely, “Drier Indfos DM 50” and “Hand Shutt of Valve GM” the manner in which those items are checked in the premises of the dealer and the satisfaction of the customer, after checking and his freedom to inspect and satisfy regarding its appearance and functioning, I am of the view that the aforesaid items are not packaged commodities. Therefore, restrictions contained in the Act cannot be applicable to such commodities and that these equipments and devices cannot be construed as commodity in packed form. Therefore, the notices Exts.P1 and P3 are quashed. The case is of the year 2000. The respondents did not care to file any counter affidavit denying the averments in the original petition. Original Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. -7- O.P.No.2089/2000 HARUN-UL-RASHID,J. -------------------------- O.P.NO.2089 OF 2000 -------------------------- JUDGMENT 18th February, 2009