(1) CR.APP.89.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 89 OF 2002 Godrej Sara Lee Ltd., Through it’s Director Pirojshanagar, Eastern Express Highway, Vikhroli (E), Mumbai – 400 079 .. Applicant Versus Inspector of Legal Metrology, Aurangabad Division 1, Yadnya Building, Mohanlal Nagar, Aurangabad .. Respondent Mr. Satyajit Bora, Advocate for the Applicant Mr. N.H. Borade, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 23RD JUNE, 2009 ORAL JUDGMENT:- 1] The applicant is seeking quashing of the criminal complaint bearing SCC no. 3828 of 2001 pending in the Court of VIIth Judicial Magistrate First Class, Aurangabad. (2) CR.APP.89.2002 2] The facts are as under:- . The applicant company manufactures certain hair cream by trade name “Brylcreem”. The applicant introduced a special package, offering customers 20% extra cream free, thereby indicating that for the cost of 50 gm cream, the company offered 50 Plus 10 gm cream more free of cost. The pack displayed “20% extra free” in bold print. The respondent took exception to this and vide their notice dated 30.7.2001 informed the applicant that the applicant had contravened rule 12(6) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as “the said rules”) which is punishable under rule 39(2) of the said rules. The notice further suggested that the contravention was compoundable under the provisions of rule 73 of the said rules and section 65 of the Standards of Weights and Measures (Enforcement) Act, 1985 etc. The notice further indicated to the applicant that the applicant could file their say about the alleged contravention in writing within 10 days. On 11.8.2001, the applicant sent their reply to the above mentioned notice and stated that the statement on the tube pack mentioning 20% extra free is only a marketing statement. They stated that such statement is a common trade practice which was adopted by many companies. They further stated that the consumer would get 60gm of cream for the price of the package (3) CR.APP.89.2002 containing 50gm earlier. But the respondent, did not accept the explanation and lodged complaint against the applicant before the VIIth Judicial Magistrate First Class, Aurangabad, who promptly issued process in October, 2001 against the applicant. The applicant challenged the proceedings and sought quashing of the same under section 482 of the Code of Criminal Procedure by filing this application. The respondent no.1 submitted an affidavit in reply and asserted that the application should be dismissed. 3] In order to appreciate the defence and arguments advanced at the Bar one has to quote the relevant rules, which read as under:- “5. Specific commodities to be packed and sold in recommended standard packages- The commodities specified in the Third Schedule shall be packed for sale, distribution or delivery in such standard quantities as are specified in that Schedule: Provided that if a commodity specified in the Third Schedule is packed in a size other than that prescribed in that Schedule, a declaration that “Not a standard pack size under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977” or “non-standard size under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977” shall be made prominently on the label of such package. (4) CR.APP.89.2002 6] Declarations to be made on every package - [1] 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 this Chapter as, to- [a] 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. Explanation I- If any name and address of a company is declared on the label without any qualifying words “manufactured by” or “packed by”, it shall be presumed that such name and address shall be that of the manufacturer and the liability shall be determined accordingly; Explanation II- If the brand name and address of the brand owner appear on the label as a marketer, then the brand owner shall be held responsible for any violation of these rules and action as may be required shall be initiated against the deemed manufacturer and in the event of more than one name and address appearing in the label, prosecution shall be launched against the manufacturer indicated on the label in the first place and not against all of them. Explanation III- In respect of packages containing food articles, the provisions of this clause shall not apply and instead the requirement of the Prevention of Food Adulteration Act, 1954 (37 of 1954) and the rules made thereunder shall apply;] (5) CR.APP.89.2002 (b) the common or generic names of the commodity contained in the package [and in case of packages with more than one product, the name and number or quantity of each product shall be specified on the package.] Explanation – Generic name in relation to a commodity means the name of the genus of the commodity, for example, in the case of common salt, sodium chloride is the generic name; [c] the net quantity, in terms of the standard unit of weight or measure, of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package; [d] the month and year in which the commodity is manufactured or pre-packed [or imported]: ................ “12. Manner in which declarations of quantity shall be expressed - ............... [6] The declaration of quantity shall not contain any word or expression which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package, for example, words or expressions, like- [i] “minimum”, “not less than”, “average”, “about”, “approximately” or any other word of a similar nature, or ......“ (6) CR.APP.89.2002 “12(6)(ii) The declaration of quantity shall not contain any word or expression which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package, for example, words or expression like- “Jumbo”, “giant”, “full”, “family”, “huge”, “economy”, “large”, “extra”, “colossal”, “king”, “queen”, or any other word or expression of a similar nature, shall not be used.” 4] The applicant clearly mentioned as provided by rule 12 of the said rules, the weight of the product on the package. It mentioned that the tube contain 60 gm. The declaration on the package that the package contain 20% extra, clearly gives an indication that maintaining the price of the earlier quantity which had been 50 gm, the applicant had offered a larger pack for the same price. On one hand the applicant mentioned the weight of the product on the packet as per the requirements of rule 6 of the said rules and at that place, word “extra” is not used. Word “extra” is used elsewhere in bold letters just to indicate that the size of the product is increased by 20% maintaining the price of the product which was sold earlier in a smaller package. The question is whether this arrangement amounted to contravention of rule 12(6) of the said rules. Rule 12(6) is already quoted above. (7) CR.APP.89.2002 5] As said above the applicant has declared the quantity as required under rule 12(6) of the said rules plainly saying that the package contain 60 gm. Product. Here the word “extra” has not been used. Elsewhere on the package the words “20% extra free” are mentioned. In my view, use of such words elsewhere would not amount to violation of rule 12(6) as was applicable then to the product of the applicant. The intention behind prohibiting the word such as “extra” or “20% extra free” etc. is to avoid misleading a consumer to get a wrong impression about the quantity of the product. So, when the consumer would read the declaration that the package contain 60gm cream, he would readily understand that 20% cream is added to the package extra for the price of 50 gm. Cream. It is thus clear that use of word “extra” or “20% extra free” is not an attempt to mislead the consumer in getting a wrong impression about the quantity of the product. Thus it would not amount to offence under section 12(6) r/w. rule 39(2) of the said rules. 6] Similar view is taken by this Court in Criminal application nos. 781 of 2007 and 783 of 2007 in the case of Santanu Jagatbandhu Sinha v. The State of Maharashtra (unreported judgment of our High Court delivered by C.L. Pangarkar J. on 31.8.2007). No other judgment is shown to me which might throw a different light on the question before the Court. (8) CR.APP.89.2002 7] The application should therefore succeed. The Complaint proceedings bearing SCC no. 3828 of 2001 filed in the Court of VIIth Judicial Magistrate First Class, Aurangabad pending against the applicant are quashed. 8] Rule made absolute in the above terms. Sd/- (A.V. NIRGUDE, J.) arp/23june9/cria89.o2