(1) CR.APP. 896.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 896 OF 2002 1] M/s Nima Marketing Enterprises, A proprietary concern of Nirma Consumer Care Ltd., Nirma House, Ashram Road, Ahmedabad – 380 009 through it’s Authorised Signatory Anupama Sadukha, Age : 29 years, Occu.: Service, R/o Ahmedabad 2] Shri Santoshkumar Kanhyalal Bhatia, Aged : 35 years, Occupation : Business, Proprietor, M/s Maruti Agencies, Juna Mondha, Aurangabad .. Applicants Versus 1] The State of Maharashtra, (Copy to be served through G.P. High Court, Bench at Aurangabad) 2] Legal Metrology Deptt., Damdi Mahal, Aurangabad 3] Shrimant Shekha Gaikwad, Age: Major, Occu.: Service, as Inspector of Legal Metrology, Division No.1, “Yadnya” Building, Mohanlalnagar, Damadi Mahal, Aurangabad .. Respondents (2) CR.APP. 896.2002 Mr. Pradeep Shahane, Advocate for the Applicants Mr. N.H. Borade, APP for the Respondent-State None present for respondent no. 3 though served CORAM : A.V. NIRGUDE, J. DATED : 23RD JUNE, 2009 ORAL JUDGMENT:- 1] The applicants are seeking quashing of the criminal complaint bearing SCC no. 1730 of 2002 pending in the Court of 8th Judicial Magistrate First Class, Aurangabad. 2] The facts are as under:- . The applicant no.1 here is a proprietary concern of a Company, which is engaged in business of marketing and trading of detergent powder, cakes etc. Initially, a detergent cake was introduced in market by name “Green Nima” and the packaging was of 120 gm. and 250 gm. Thereafter, the company launched a promotional campaign of the product, with a scheme to offer 50 gm extra detergent on every 250 gm cake, which means the company offered 20% product free of cost. So, the product weighed 250 gm + 50 gm. = 300 gm. The package of the product boldly displayed that (3) CR.APP. 896.2002 it contain 20% extra detergent cake at the same price as that of the earlier 250 gm cake. The respondent took exception to this and by their letter dated 21.1.2002 asserted that the applicant’s declaration regarding the net quantity contain word “free 20% extra” and it amounted to violation of rule 12(6) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as “the said rules”). Due to such violation the letter further pointed out that certain goods were seized on 16.1.2002. The letter further mentioned that contravention of rule 12(6) of the said rules was punishable under rule 39 of the said rules. The letter called upon the applicants to submit their say about the contravention in writing within 10 days etc. The applicant sent reply and defended their action, saying that prior to the campaign 250 gm of Nima detergent cake was available at Rs.5/- and under the promotional scheme 250 plus 50 gm extra was made available at the same price of Rs.5/-. The applicant sent label of the product prior to the promotional scheme. They asserted that the statement containing the word extra made on the package was clear, truthful, unambiguous and incapable of misleading any consumer etc. Despite of the same, the respondent lodged complaint against the applicant before the 8th Judicial Magistrate First Class, Aurangabad alleging that the applicants had contravened rule 12(6) and rule 23(1) of the said rules and so they were liable (4) CR.APP. 896.2002 for punishment under rule 39 of the said rules. The learned Magistrate issued process against the applicants on 16.3.2002 and so, the applicants preferred this application under section 482 of the Code of Criminal Procedure for quashing of the proceedings. 3] In order to appreciate the defence and the 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. 6] Declarations to be made on every package - (5) CR.APP. 896.2002 [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;] (6) CR.APP. 896.2002 (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 ......“ (7) CR.APP. 896.2002 “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.” 23. Provisions relating to whole sale dealer and retail dealers-- (1) No whole sale dealer or retail dealer shall sell, distribute, deliver, display or store for sale, any commodity in the packaged form unless the package complies with, in all respects, the provisions of the Act and these rules.” . These rules directed that certain specified commodities should be packed and sold in recommended standard packages. The third schedule annexed to these rules has enumerated the specified commodities. There are in all 20 commodities enumerated in the schedule. Serial no.17 covers the product of the applicant. It provides that in case of detergent cakes/bars, the commodity should be packed and sold in standard quantities of 50 gm, 75 gm, 100 gm, 125 gm, 200 gm, 250 gm and 300 gm and thereafter, in multiples of 100 gm. In the present case, the (8) CR.APP. 896.2002 applicant initially launched the product in the standard quantity of 250 gm. and 125 gm. After few days, the applicant changed the weight of the product and made it to 300 gm. Even 300 gm. quantity is a standard quantity but the applicant, offered in the said package 50 gm product free of cost. The applicant assumed that the standard quantity of the product was still 250 gm but added 50 gm product was extra. They suggested that since the price of the product was not changed, the added extra detergent cake would be free of cost. 4] The question is whether such offer violated rule 12(6) of the said rules? Rule 12(6) of the said rules is quoted above. 5] In view of the discussion above, it is clear that the applicant no.1 mentioned on the package the standard weight of the product and also got his added extra. What is added extra, was offered free of cost and so that quantity of cake was not offered for sale. What was offered for sale was the quantity which was standardised for which the price was also introduced earlier and maintained even with the larger pack. It does not therefore, show that the applicant had committed any offence. 6] Similar view is taken by this Court in Criminal application nos. 781 of 2007 and 783 of 2007 (9) CR.APP. 896.2002 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. 7] The application should therefore succeed. The Complaint proceedings bearing SCC no. 1730 of 2002 filed in the Court of Judicial Magistrate First Class (8th Court) at Aurangabad, pending against the applicants are quashed. The respondents shall return the seized products of the applicants. 8] Rule made absolute in the above terms. Sd/- (A.V. NIRGUDE, J.) arp/23june9/cria896.02