THE STATE OF MAHARASHTRA AND ORS.versusRAJ MARKETING & ANR.

                       [2011) 10 S.C.R. 722


A          THE STATE OF MAHARASHTRA AND ORS.
                                 v.
                     RAJ MARKETING & ANR.
                  (Civil Appeal No. 1119 of 2010)
                        AUGUST 26, 2011
B
           [P. SATHASIVAM AND H.L. GOKHALE, JJ.]

       Standards of Weights and Measures (Packaged
  Commodities) Rules, 1977 - Rule 2(x) - "Wholesale
C package" - Declaration to be made on every wholesale
  package• - Held: In order to attract violation of the Rules, the
  package seized must fall within the expression "wholesale
  package"·- A package used merely for protection during
  conveyance or safety would not be pre-packed commodity for
D the purpose of the Act and the Rules - For the package to
  be treated as a wholesale package, the package must not be
  a secondary package - The secondary outer packing for
  transportation or for safety of the goods being transported or
  delivered cannot be described as a wholesale package -
E Standards of Weights and Measures Act, 1976.

        The respondent is a firm carrying on the business of
    buying and selling various products. The second
    appellant/ Inspector of Legal Metrology visited the first
F . respondent's godown and seized various packages of
    packed commodities such as Candy man, Minto-Fresh,
    Kitchens of India, Badam Halwa and Ashirvaad Atta etc.
    vide seizure memo. The reason for seizure, according to
    him, was that on the wholesale packets, the details
    regarding the name and addresses of the manufacturer,
G cost, month, year etc. was not declared and also the retail
    sale price was not mentioned which was in violation of
    the Standards of Weights and Measures (Packaged
    Commodities).Rules, 1977. A show cause notice was

H                               722
    STATE OF MAHARASHTRA AND ORS. v. RAJ .                723
              MARKETING & ANR.

issued by the appellant to the respondent for violation of       A
Section/Rule 33 and 39 read with Rule 23(1) and 6 of the
Rules. It was mentioned in the said notice that the offence
was compoundable as per Section 73 of the Standards
of Weights and Measures Act, 1976 and Section 65 of the
Standards of Weights and Measures (Enforcement) Act,             B
1985. The respondents replied to the said notice and
thereafter filed Writ Petition, inter alia, for quashing the
seizure memo and notice.

    The High Court allowed the writ petition by holding          C
that the packages containing Candy man, Minto-Fresh,
Kitchens of India, Badam Halwa and Ashirvaad Atta are
not wholesale package within the definition of the
expression "wholesale package" under Rule 2(x) of the
Rules. Questioning the said order of the High Court, the
State filed the present appeal.                                  0

     Dismissing the appeal, the Court

       HELD : Rule 2(x) of the Standards of Weights and
  Measures (Packaged Commodities) Rules, 1977 define             E
  "wholesale package" while Rule 29 of the Rules concerns
  "declaration to be made on every wholesale package" .
. In order to attract violation of the said Rules, the package
  seized must fall within the expression "wholesale
  package". A package used merely for protection during          F
  conveyance or safety would not be pre-packed
  commodity for the purpose of the Act and the Rules. As
  rightly observed by the High Court that for the package
  to be treated as a wholesale package, the package must
  not be a secondary package. In that event, one has to find     G
 out whether the secondary package is only for safety,
 convenience or the like. As demonstrated before the High
 Court, the 1st respondent placed all the products before
 this· Court i.e. both the wholesale package as well as the
retail package. The Department's only contention was             H
    724      SUPREME COURT REPORTS             [2011] 10 S.C.R

A that the secondary package In which the wholesale
  package was packed does not contain the said
  Information. In the light of the statutory provisions and
  on verification of the products shown, it is clear that the
  secondary outer packing for transportation or for safety
B of the goods being transported or delivered cannot be
  described as a wholesale package. [Paras 7, 8 and 9)
    [726-D-H; 727-C-F]

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
C 1119 of 2010 etc.

        From the Judgment & Order dated 08.12.2006 of the High
    Court of Judicature at Bombay in Writ Petition No. 2982 of
    2006.

D      Vijay Hansaria, U.U. Lalit Shekhar Naphade, K.V.
  Viswanathan, Chinmoy Khaladkar, Snajay Kharde, Asha
  Gopalan Nair, Shivaji M. Jadhav, Amit Singh, G. Sabharwal,
  Aneesh Sah, Brij Kishore Sah, Pranab Kumar Mullick, Niraj
  Singh, Soma Mullick, Meenakshi Middha, Saneha Kalita, Kavita
E Wadia, Bhargava V. Desai, Rahul Nagpal, Manu Nair, Surjendu
  Sankar Das, Suresh A. Shroff & Co., Ravinder Narain, Ajay
  Aggarwal, Mallika Joshi, Amritha Chatterjee, Rajan Narain,
  Navin Chawla, D.K. Singh, Gaurav Kaushik, Tushar Singh,
  Raghu Tandon, Pradeep Shukhla, S.M. Jadhav, Amit Singh, G.
F Sabharwal, Aneesh Sah, Brij Kishore Sah, Sushma Suri,
  Anitha Shenoy for the appearing parties.

          The Judgment of the Court was delivered by

       P. SATHASIVAM, J. 1. This appeal by State of
G Maharashtra is directed against the judgment and order dated .
  08.12.2006 passed by the High Court of Judicature at Bombay
  in Writ Petition No. 2982 of 2006 whereby the High Court
  allowed the writ petition of the 1st respondent herein.

H
    STATE OF MAHARASHTRA AND ORS. v. RAJ                    725
      MARKETING & ANR. [P. SATHASIVAM, J.]

     2. The issue involved in this appealis whether Candy man,     A
Minto-Fresh, Kitchens of India, Badam Halwa and Ashirvaad
Atta etc. can be considered as a "wholesale package" within
the definition of the expression "wholesale package" under
Rule 2(x) of the Standards of Weights and Measures
(Packaged Commodities) Rules, 1977 (hereinafter referred to        B
as "the Rules").
     3. Brief facts:
     a) The respondent is a firm carrying on the business of
buying and selling various products and they used to store these   c
products in their godown at Gali No.8, Senior Tyre Compound,
N.S.S. Road, Narayan Nagar, Ghatkopar (W) Mumbai.
     b) On 31.10.2006, the second appellant/Inspector of Legal
Metrology; Mumbai visited the first respondent's godown and
seized various packages of packed commodities such as              D
Candy man, Minto-Fresh. Kitchens of India, Badam Halwa and
Ashirvaad Atta etc. vide seizure memo bearing Nos. 0114769
and 0114 770 dated 31.10.2006. The reason for seizure,
according to him, is that on the wholesale packets, the details
regarding the name and addresses of the manufacturer, cost,        E
month, year etc. has not been declared and also the retail sale
price was not mentioned which is in violation of the Rules.
     c) A show cause notice dated 06.11.2006 has been issued
by the appellant to the respondent for the violation of Section/
Rule 33 and 39 read with Rule 23(1) and 6 of the Rules. It was     F
mentioned in the said notice that the offence is compoundable
as per Section 73 of the Standards of Weights and Measures
Act, 1976 and Section 65 of tlie Standards of Weights and
Measures (Enforcement) Act, 1985.
     d) On 18.11.2006, the respondents. vide their letter,         G
replied to the notice dated 06.11.2006.
    e) On 28.11.2006, the respondents filed Writ Petition being
W.P. No. 2982 of 2006, inter alia, for quashing the seizure
memo dated 31.10.2006 and notice dated 06.11.2006.
                                                                   H
    726       SUPREME COURT REPORTS                 r2011110 s.c.R..


A      4. The High Court, by impugned order dated 08.12.2006
  allowed the writ petition by holding that the packages containing
  Candy man, Minto-Fresh, Kitchens of India, Badam Halwa and
  Ashirvaad Atta are not wholesale package within the definition
  of the expression "wholesale package" under Rule 2(x) of the
B Rules.
          5. Questioning the said order of the High Court, the State
    filed the above appeal by way of special leave.
         6. Heard Mr. Chinmoy Khaladkar, learned counsel for the
C   appellant-St~te and Mr. Ravinder Narain for respondent No.1.

       7 ..Rule 2(x) of the Rules define "wholesale package" to
    mean:
          "(x) "wholesale package" m~ans a package containing-
0         (i) a number of retail packages, where such first mentioned
          package is intended for sale, distribution or delivery to a
          intermediary and is not intended for sale direct to a single
          consumer; or
          (ii) a. commodity sold to an intermediary in bulk to enable
E         such intermediary to sell, distribute or deliver such
          commodity to the consumer in smaller quantities; or
          (iii) packages containing ten or more than ten retail
          packages provided that the retail packages are labeled
          as required under the rules."
F
          8. Rule 29 of the Rules read as under:
          "29. Declaration to be made on every wholesale
          package.- Every wholesale package shall bear thereon a
          legible, definite, plain and conspicuous declaration as to,-
G         (a) the name and address of the manufacturer or where
          the manufacturer is not the packer, of the packer;
          (b) the identity of the commodity contained in the package;
          and
H         (c) the total number of retail packages contained in such
     STATE OF MAHARASHTRA AND ORS. v. RAJ                        727
       MARKETING & ANR. [P. SATHASIVAM, J.)

     wholesale package or the net quantity in terms of standard          A
     units of weights, measures or number of tne commodity
     contained in wholesale package:
      Provided that nothing in this rule shall apply in relatiorr-to
      a wholesale package if a declaration similar to the
      declaration specified in this rule, is required to be made         B
      on such wholesale packages by or under any other law for
      the time being in force."
       · 9. In order to attract violation of the Rules referred above,
  the package seized must fall within the expression "wholesale          c
  package". A package used merely for protection during
  conveyance or safety would not be pre-packed commodity for
  the purpose of the Act and the Rules. As rightly observed by
. the High Court that for the package to be treated as a wholesale
  package, the package must not be a secondary package. In
  that event, we have to find out whether the secondary package          D
  is only for safety, convenience or the like, As demonstrated
  before the High Court, .the counsel appearing for the 1st
  respondent placed all the above-mentioned products before us
  i.e. both the wholesale package as well as the retail package.
  The Department's only contention was that the secondary                E
   package in which the wholesale package was packed does not
  contain the said information. In the light of the provisions which
  we have referred above and on verification of the products
  which were shown to us, we are of the view thatlhe secondary
  outer packing for transportation or for safety of the goods being      F
  transported or delivered cannot be described as a wholesale
  package.
      10. On going through the statutory provisions which we
have adverted to in the earlier paras and on verification of the         G
products which were shown to us during the course of argument,
we fully agree with the conclusion arrived at by the High Court.
Consequently, the appeal fails and the same is dismissed with
no order as to costs.

8.8.8.                                          Appeal dismissed.        H