IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 4006 of 2004(B) ------------------------- PETITIONER: ------------ SAPANA POLYWEAVE LTD. HAVING ITS REGD. OFFICE AT 158,C.S.T.ROAD,KALINA,SANTACRUZ (EAST), BOMABY-400098,REP.BY ITS MG.DIRECTOR,V.B.GUPTA, AGED 60,7-ABHISHEK BUNGALOW, 4-BUNGALOW ROAD, ANDHERI (W), MUMBAI-400 053,BY POWER OF ATTORNEY HOLDER P.P.FRANKLIN, SALES SUPERVISOR. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FOOD AND CIVIL SUPPLIES (DEPARTMENT OF CIVIL SUPPLIES), NEW DELHI. 2. THE CONTROLLER OF LEGAL METROLOGY, THIRUVANANTHAPURAM. 3. INSPECTOR OF LEGAL METROLOGY, OFFICE OF THE INSPECTOR OF LEGAL METROLOGY, PUNALUR, KOLLAM. BY ADV.SRI.JAYAPRADEEP. V., ADDL.CGSC FOR R1 GOVT. PLEADER SHRI.P.N.SANTHOSH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 4006/04. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE RECEIPT DTD.18.2.03 BY R1. P2. COPY OF THE notice DTD.5.3.03 BY R2. P3. COPY OF THE REPLY DTD.22.3.03 TO R2. P4. COPY OF THE REPLY DTD.24.7.03 BEFORE R2. P5. COPY OF THE REPLY RECEIVED BY THE PETITIONER DTD.31.7.03. P6 COPY OF THE APPEAL MEMORANDUM BEFORE R1. P7. COPY OF THE ORDER DTD.17.11.03 BY R1. P8. COPY OF THE PROCEEDINGS DTD.30.12.03 BY R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.4006 of 2004 ================== Dated this the 30th day of June, 2008 J U D G M E N T The petitioner in this writ petition is a company manufacturing carpets and mats made of polypropelene. For the purpose of safe transportation and protecting the same from dust and soiling, the petitioner covers the carpets and mats by plastic covers. The products are marketed in those plastic covers. On the ground that the products of the petitioner are pre-packed commodities and the petitioner has not complied with the provisions of the Standards of Weights and Measures (Packaged commodities) Rule, 1977, the respondents initiated prosecution proceedings under the Standards of Weights and Measures Act, 1976, read with the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, which is under challenge in this writ petition. 2. The contention of the petitioner is that the plastic cover with which carpets and mats are covered, is open at one end and therefore, cannot be considered as a packing itself and would not come within the purview of the definition of “commodity in 2 packaged form” coming under Section 2(b) of the Standards of Weights and Measures Act, 1976 and “pre-packed commodity” coming within the definition Rule 2(l) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The contention of the petitioner is that the Act and Rules are not intended to cover those commodities which are protected from damaging by using open ended plastic covers and the Act and Rules would be applicable only to those commodities which are packed in packages intended for sale in such packings. They would submit that the opening of the plastic cover would not alter the quality, quantity or value of the product and would not result in a perceptible modification of the product and therefore, the petitioner's product would not answer the definition of “pre- packed commodity” in Rule 2(l) of the Rules. The learned counsel for the petitioner relies on the decisions of the High Court of Andhra Pradesh in Euraka Forbes Limited v. The Govt. of A.P. (AIR 2003 Andhra Pradesh 275), the decision of the High Court of Judicature of Bombay in Subash Arjandas Kataria v. The State of Maharashtra & Others (CDJ 2006 BHC 698) as also that of the Supreme Court of India in Whirlpool of India Ltd. v. Union of India & others (CDJ 2007 SC 1194) in support 3 of his contention that use of the plastic covers would not make the petitioner's product a pre packed commodity so as to come within the purview of the the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. 3. In answer to the contention raised by the petitioner, the counsel for the respondents would rely on a Division Bench decision of this court in O.P.No.1656/2003 [Kerala Textiles and Garments' Dealers Welfare Assn. v. Union of India and others] wherein all the questions involved in this writ petition have been specifically considered and answered against a similar petitioner in that case. That decision exhaustively considers all the questions and comes to the conclusion that nature of the packing and the intention of the manufacturer have nothing to do with the applicability of the provisions of the Act and Rules and once the commodity is packed in any sort of packing, the same would come within the purview of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. 4. I have considered the rival contentions in detail. 5. Initially when the matter was heard on 28.6.2008, I had entertained certain doubts as to the validity of the action taken by the respondents against the petitioner and initially I was 4 inclined to agree with the decisions of the High Court of Andhra Pradesh and High Court of Bombay. However, in view of the Division Bench decision which was produced before me today which has considered every aspect of the issue raised before me, after considering the decision of the Andhra Pradesh and Bombay High Courts also and is binding on me, I need not go into the questions involved in this writ petition in detail except to dismiss this writ petition following the judgment in O.P.No.1656/2003. The Supreme Court decision in Whirlpool's case (supra) also does not lay down any different law and in fact it would go against the petitioner. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge