IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 11478 of 2000(N)
1. CHILTON REFRIGERATION
... Petitioner
Vs
1. UNION OF INDIA
... Respondent
For Petitioner :SRI.T.SAJI
For Respondent :SRI.V.SANTHARAM
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/02/2010
O R D E R
S.SIRI JAGAN, J.
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O.P.Nos.11478/2000 & 37156/2001
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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.11478/01 & 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.11478/01 & 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.11478/01 & 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.11478/01 & 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.11478/01 & 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.11478/01 & cc 7
S.SIRI JAGAN, J.
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O.P.Nos.11478/2000-N
& 37156/2001-W
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J U D G M E N T
25th February, 2010
o.p.11478/01 & 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.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.