IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 OP.No. 11478 of 2000(N) ----------------------- PETITIONER(S): --------------- 1. CHILTON REFRIGERATION PVT. LTD., INDUSTRIES DEVELOPMENT AREA, EDAYAR, BINANIPURAM P.O., ERNAKULAM, REP. BY ITS MANAGING DIRECTOR P.G.CHILPRAKASH. 2. P.G.CHILPRAKASH, MANAGING DIRECTOR, CHILTON REFRIGERATION PVT. LTD., INDUSTRIES DEVELOPMENT AREA, EDAYAR, BINANIPURAM P.O., ERANAKULAM. BY ADV. SRI.T.SAJI SRI.T.K.SHAJAHAN SRI.V.V.SIDHARTHAN SRI.T.K.SHAJAHAN RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVT. MINISTRY OF FOOD & CIVIL SUPPLIES, NEW DELHI-1. 2. THE DIRECTOR OF STANDARDS OF WEIGHTS & MEASURES (MINISTRY OF FOOD AND CIVIL SUPPLIES), NEW DELHI-1. 3. THE CONTROLLER OF LEGAL METROLOGY, THIRUVANANTHAPURAM. 4. THE INSPECTOR, LEGAL METROLOGY, NORTH PARUR. ADV. SRI.V.SANTHARAM SRI.K.R.RAGHUNATH, ADDL.CGSC FOR R1,2 SRI.N.ANILKUMAR FOR R1,2 GOVT. PLEADER SHRI.DILIP MOHAN FOR R3,4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2010, ALONG WITH OP NO. 37156 OF 2001 THE COURT ON 25/02/2010 DELIVERED THE FOLLOWING: O.P.No. 11478/2000. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE NOTICE DTD.18.10.99. P2. COPY OF THE REPLY DTD.13.11.99. P3. COPY OF THE ORDER DTD.22.3.2000 BY R3. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.Nos.11478/2000 & 37156/2001 ================== Dated this the 25th day of February, 2010 J U D G M E N T These two original petitions raise the same issue regarding prosecution under the Standards of Weights and Measures Act, 1976, (“Weights & Measures Act” for short) and the Standards of Weights and Measures (Enforcement) Act, 1985 (“Enforcement Act” for short). 2. The petitioner in O.P.No.37156/2001 is a manufacturer of sewing machines under the brand name “Usha”. They sell Usha sewing machines along with an accessory box given free of cost to customers containing some implements like screw drivers etc. and a tailor tape, in which, according to the petitioner, it is specifically stated that the same is for personal use. The 4th respondent seized the accessory box from the petitioner's dealer in Sulthan Batheri on the ground that tape which does not conform to the standards prescribed, is kept in the shop for trade, in which, the measurement is shown both in centimeters and inches. Ext.P1 show cause notice was issued directing them to show-cause why prosecution proceedings should not be initiated against them for alleged offences under the Enforcement Act. The petitioner filed Ext.P2 reply to the show cause notice denying that they have violated any provisions of the Act. They are challenging Ext.P1 order in the original petition. o.p.11478/00 & cc 2 3. The 1st petitioner in O.P.No.11478/2000 is a manufacturer of deep freezers, panel air conditioners, oil coolers, chill water plant etc. The 2nd petitioner is the managing director of the 1st petitioner company. According to them, in their unit at Binanipuram, Ernakulam, they assemble these products. The 4th respondent inspected their manufacturing unit and from there, one tape and two stainless steel scales measuring 36 and 24 inches were seized alleging that use of those tape and scales amounted to violation of Section 39(1) of the Enforcement Act. According to the petitioners, they do not use the scale for any manufacturing purpose in the manufacturing unit, nor are they manufacturer of such tapes or scales. They would also contend that they are not selling those tape and scales. Ext.P1 show cause notice was issued by the 4th respondent directing the petitioners to show cause why prosecution proceedings should not be initiated against them in respect of the said violation. They filed Ext.P2 explanation. But overruling the contentions of the petitioners, Ext.P3 order has been passed by the 3rd respondent authorising the 4th respondent to file a complaint for prosecuting the petitioners under the Act. The petitioners are challenging Exts.P1 and P3 in that original petition. 4. According to the petitioners, they are not guilty of violation of any of the provisions of the Act or Rules. As far as o.p.11478/00 & cc 3 O.P.No.37156/2001 is concerned, the show cause notice does not specify any section of either Weights & Measures Act or Enforcement Act, for which they are liable to be prosecuted. In O.P.No.11478/2000 the section quoted is only Section 39(1) of the Enforcement Act. According to them, Section 39(1) is applicable only when a person keeps any weight or measure other than standard weight or measure in any premises, in such circumstances as to indicate that such weight or measure is being, or is likely to be, used for any weighment or measurement or transaction or for industrial production or for protection. According to the petitioners, the said section is not attracted in their case by any stretch of imagination. 5. Although a Central Government Counsel has entered appearance for the Government of India and the Director of Standards of Weights and Measures, nobody is present in Court today to argue the case. The learned Government Pleader supports the action with the help of a counter affidavit filed by respondents 3 and 4. The 2nd respondent has filed a counter affidavit wherein the allegation is that in view of Sections 21, 22 and 23 of the Enforcement Act, the petitioners are liable to be prosecuted. The Government Pleader would contend that under Section 4 of the Weights and Measures Act, every unit of weight or measure shall be based on the units of the metric system. He would contend that in view of the fact that admittedly tape and o.p.11478/00 & cc 4 scales found in the premises of the petitioners had inscriptions both in centimeters and inches, the same violates Section 4 of the Weights and Measures Act, in addition to Sections 22 and 24 of the Enforcement Act. 6. I have considered the rival contentions in detail. 7. In both cases, the Act quoted in the impugned proceedings is the Enforcement Act. In one of the show cause notices, Section 39 (1) is also quoted. Section 39(1) of the Enforcement Act reads thus; “39. Penalty for keeping non-standard weights or measures for use and for other contravention.-(1) Whoever keeps any weight or measure other than the standard weight or measure in any premises in such circumstances as to indicate that such weight or measure is being, or is likely to be, used for any- (a) weighment or measurement, or (b) transaction or for industrial production or for protection, shall be punished with fine which may extend to two thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine.” 8. I do not think that the show cause notice spells out a violation of Section 39. For prosecution under Section 39 it should be shown that the accused had kept any weight or measure other than the standard weight or measure in circumstances indicating that the same is being or liable to be used for weighing or measuring or transaction or for industrial production or for protection. In these two cases, there is no allegation that the petitioners have kept particular tape and scales in circumstances indicating that the tape and scales o.p.11478/00 & cc 5 are being used or are liable to be used for weighing or measuring or transaction or for industrial production or for protection. As far as the sewing machine manufacturer is concerned, he is only supplying a tape along with a tool box free of cost as an accessory for the sewing machine. It is worse in the case of the other petitioner, who is manufacturing air conditioners, refrigerators etc. They have kept tapes and scales. By no stretch of imagination can anybody say that the tape and scales were kept for use in the manufacture of air conditioners, refrigerators etc. From the counter affidavit filed by the Director of Legal Metrology, his case appears to be that these measuring devices contained inscription in inches in addition to inscription in centimeters. They would contend that that amounts to violation of Section 23 of the Weights and Measures Act, which reads thus: “23. Prohibition with regard to inscriptions etc.- No weight, measure or other goods shall bear thereon any inscription or indication of weight, measure or number except in accordance with the standard unit of such weight, measure or numeration established by or under this Act: Provided that in relation to any weight, measure or other goods which are manufactured for scientific investigation or research or for export, inscription or indication thereon of any weight, measure or number may also be made in accordance with any other system of weight, measure or numeration if such inscription or indication is demanded by the person by whom such scientific investigation or research is to be made or by the person to whom the export is to be made or by the person to whom the export is to be made.” A reading of the same would go to show that that section would be applicable only in respect of a manufacturer of a weight or measure containing inscriptions other than those in metric system. The o.p.11478/00 & cc 6 respondents have no case that the petitioners in these cases have manufactured the tapes and scales which were found in their possession. As such, Section 23 of the Weights and Measures Act is also not attracted to the cases before me. Further, I am of opinion that such actions would not serve any useful purpose to anybody except to waste money from the exchequer to prosecute the petitioners, which would not end in a successful prosecution. For all the above reasons, I quash the impugned notices and orders in these two original petitions. If any prosecutions have been initiated pursuant to the same, those would also stand quashed. The original petitions are allowed as above. Interlocutory applications stand closed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.11478/00 & cc 7 S.SIRI JAGAN, J. ================== O.P.Nos.11478/2000-N & 37156/2001-W ================== J U D G M E N T 25th February, 2010 o.p.11478/00 & cc 9 O.P.No.37156/01. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE SHOW CAUSE NOTICE DTD.3.1.01. P2. COPY OF THE REPLY DTD.29.10.2001. P3. COPY OF THE NOTICE DTD.2.11.02 BY R4. o.p.11478/00 & cc 10 O.P.No. 11478/2000. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE NOTICE DTD.18.10.99. P2. COPY OF THE REPLY DTD.13.11.99. P3. COPY OF THE ORDER DTD.22.3.2000 BY R3.