SUBHASH ARJUNDAS KATARIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Petitioner is engaged in the business of trading in Sun Glasses and has a counter on commission basis at Globus Stores, Bandra. On 17th October, 2003 the 2nd respondent visited Globus Stores and under a panchnama seized 5 sun glasses belonging to the petitioner for violation of the provisions of the Rules framed under the provisions of Standards of Weights & Measures Act 1976 (which hereinafter shall be referred to as the Act), which are known as the Standards of Weights & Measures (Packaged) Commodities Rule 1977, which hereinafter are to be referred to, as the Rules. There is yet another Act known as the Standards of Weights & Measurements (Enforcement) Act, 1985 which hereinafter shall be referred to as the Enforcement Act. On 22th October, 2003 as per the pleadings in the petition the Respondent No.2 along with other officers visited the office premises and handed over a show cause notice in Proforma "A" calling on the petitioners to compound the offence and simultaneously coerced and compelled the petitioner to write a letter for compounding of the offence under Section 65 of the Enforcement Act. At the same time they also compelled the petitioner to hand over to them a blank cheque of not over Rs.5000/-. The petitioner s further case is that vide his Advocates letter dated 27th October, 2003 and after recording the facts set out earlier, recorded that the letter of request written on 20th October, 2003 was not written voluntarily nor of free will but under duress and that the blank cheque was obtained improperly and illegally. By letter dated 27th October, 2003 the petitioner requested the respondent No.2 to vacate the order of seizure and return the sun glasses and other articles and the blank cheque. As the Respondents did not return the sun glasses nor vacated the seizure a reminder was sent on 14th November, 2003. The respondent No.2 by letter dated 17th November, 2003 without reference to the letters addressed to the Respondent No.2 by his Advocate s letter communicated to the petitioner that the Deputy Controller of Legal Metrology, the Respondent No.3, had accepted the letter of compounding and while endorsing a copy of the impugned order dated 30th October, 2003 ordered the petitioner to pay an amount of Rs.3,000/- as compounding fee.The respondent No.2 also returned the blank cheque to the petitioner. It is the case of the petitioner that this entire action is arbitrary, illegal and unconstitutional, perverse, capricious without and/or in excess of jurisdiction and without and/or in excess of authority.

(2.) The petitioner s contention is that at the time of receiving the sun glasses from suppliers, the same are packed in individual polythene bags for protection and some of them are put in single carton. The same are received in individual openable pouch or case. Some of them are received with respective declaration affixed to the packaging. All the sun glasses are kept on open display without Polythene bags or case or pouch in which they are supplied. The prospective customers individually have a look at them, then try them out to ascertain and find out the suitability, cosmetic and aesthetic value thereof and then decide either to purchase or not or leave the same as it is. The decision to purchase the sun glasses depends upon the personality, shape, size and other physical attributes of the concerned individual. There is no testing of sun glasses involved at this stage and the decision to purchase is based on the subjective elements and preferences which are consumer specific. Sun glasses not sold are once again put on display till the same are sold. After the same are selected by the prospective purchaser, the same are either placed in a case or pouch for protection and as a goodwill gesture. The sun glasses received by them are not necessarily supplied in an individual case or pouch. The sun glasses sold by the purchasers are therefore, placed in cases or pouches procured separately by the petitioner. Before sale to the consumers the sun glasses are not sealed and/or not packed in the absence of the consumers. The sun glasses are kept on open display for sale and are not put in cases in the absence of the customer.

(3.) A reply has been filed by the Assistant Controller of Legal Metrology. It is set out that the Respondent No.3 is authorised to compound the offences which are compoundable under the provisions of Section 65 of the Enforcement Act. The respondent No.3 is also authorised to hear the representation made by the aggrieved persons against any order or decision of respondent NO.2. Respondent No.2 Inspector, has taken action under the provisions of the Enforcement Act read with the Rules. It is set out that on a routine inspection of Globus Stores Pvt. Ltd. several goods which are a commodity in packaged form, as defined under Section 2(b) of the Standards of Weights & Measures Act, 1976 read with the definition of prepacked goods were seized. The petitioner voluntarily gave consent for compounding the offence. The object of the Act, it is set out, are for consumer protection in respect of origin of goods, as well as indication of price on the packed commodity to prevent cheating. The Act and the Rules provide, that in respect of packed commodities, in pursuance of recommendations of the International Organisation of Legal Metrology, on the packet net quantity by weight, measure or number, the identity of the commodity contained therein, the name of the manufacturer and the price of the package should be indicated. It is then set out that Globus Stores Pvt. Ltd., has already compounded the offence and paid compounding fee of Rs.25,000/-. It is denied that there was any coercion exercised on the petitioner to write the letter for compounding the offence. It is also denied that the petitioner was compelled to hand over a blank check of over Rs.5,000/-. The show cause notice was given in the normal course and the petitioner had agreed to compound the offence voluntarily. The order to compound was made on 30th October, 2003 and the petitioner was required to pay Rs.3,000/- as compounding fee. The question of the petitioner, therefore, giving a cheque for Rs.5,000/- as set out is false. The compounding order, it is set out, was made on 30th October, 2003. The letter of 20th October, 2003 was received on 21st October, 2003. The Advocate s letter dated 27th October, 2003 was received in the office of Respondent No.2 on 28th October, 2003 as well as the letter addressed to the respondent No.3 which was properly forwarded to respondent NO.3. The letter of 27th October, 2003 was addressed only to respondent No.2 and not to respondent No.3. It is, therefore, set out that the petitioner has failed to make out a case and consequently the petition should be dismissed.