Criminal Petition No.1357 of 2006

18th December, 2009

Petitioner Counsel: PADMANABHA MAHALE
Respondent Counsel: B. V. SHANKARANARAYANA RAO,A. V. RAMAKRISHNA

Cases Cited:
Christine Hoden (India) Pvt. Ltd. Vs. State of Andhra Pradesh, 1997(2) Prevention of Food Adulteration Cases 141 [Para PARA8]

JUDGMENT

-The petitioners herein, who are accused Nos.1 and 2 in CC No590/2005 on the file of the learned Metropolitan Magistrate (Traffic Court - I), Bangalore, (hereinafter referred to as Trial Court for short) have sought for quashing of the entire proceedings in the said case.

2. Stated in brief, the case of the prosecution, as alleged in the complaint dated 18-8-2005 filed by the complainant viz: The Assistant Controller of Legal Metrology, IV Circle, No.763, Bramarambha Building, V Block, Rajajinagar, Bangalore-10, is as under :

(a) On 19-2-2005 at 2.10 p.m., the complainant, alongwith the members of his staff, inspected the shop of M/s. Food World. Super Market Limited at M. G. Road, Bangalore. During the said inspection, M. Sathish and Ashok (respectively accused Nos.3 and 4) were present in the said shop. The complainant noticed five packages of "HUGGIES DIAPERS" of size 'large', each containing ten pieces of diapers. The size of the commodity, viz: Diaper, contained in the packages was mentioned on each package as large but not in terms of Metric Units such as 'millimeter' 'centimeter' etc. Therefore the provisions of the Standards of Weights and Measures Act, 1976 (hereinafter referred to as 'the Act' for short) were violated.

(b) The possession of the said packages containing diapers, by accused Nos.3 and 4 in the said shop was in violation of Rule 23(1) of the Standards of Weights And Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as 'the Rules' for short), which is punishable under Rule 39 of the said Rules.

(c) Further, it was found by the complainant that the said packages had been imported by accused No.1 viz: M/s. Kimberly Clark Lever (P) Ltd. and the said act of importing of the said packages constitutes an offence under Section 39 of the Act and Rule 33(1) read with Rules 18 and 33 (4) of the said Rules.

(d) The said packages were marketed and supplied by accused No.2 viz: M/s. Hindustan Lever Ltd. Mumbai, which has been engaged in supplying and trading with such packages. Thus accused No.2 violated the provisions of the said Rules, which constituted the offence under Rule 23(1) of the said Rules.

3. On the basis of the said complaint, the Trial Court took cognizance of the said offences against accused Nos.1 to 4 therein and issued process by order dated 1-9-2005. Therefore, accused Nos.1 and 2 therein have filed the present petition under Section 482, Cr.P.C. seeking quashing of the entire proceedings in the said case.

4. Heard the arguments of Sri Padmanabha Mahale, the learned Senior Counsel and Sri BV Shankaranarayana Rao, the learned counsel appearing for the petitioners - accused and also Sri AV Ramakrishna, the learned High Court Government Pleader. Perused the order dated 1-9-2005 passed in the said case taking cognizance against these petitioners and two other accused issuing process against them.

5. Sri Padmanabha Mahale, the learned Senior Counsel for the petitioners strongly contended that as provided under Rule 18 of the Rules, the dimensions of finished commodities contained in the package have to be declared on the package or on the label affixed thereto, only if the commodity contained in the package in question is one of the commodities listed under the said Rule and since the diaper does not fall within the description of any of the said commodities, it could not be said that the petitioners have violated the Rule 18 of the Rules, which violation is made punishable under Rule 39 of the Rules and therefore the entire proceedings in the said case deserve to be quashed. He further contended that violation of Rule 23(1) of the Rules is alleged against accused Nos.3 and 4 for having possessed of the Huggies Diaper in their shops, but the averments in the complaint do not constitute any violation of the said Rules.

6. Per contra, Sri AV Ramakrishna, the learned High Court Government Pleader, strongly contended that the words 'commodities like' and 'similar other commodities', which are used under Rule 18 of the Rules clearly indicate that the list of commodities mentioned in the said Rule is 'not exhaustive', but it is 'inclusive' and the Diaper in question attracts the description of 'napkin', which is one of the commodities listed in the said Rule and therefore by not mentioning on each of the said packages, the size (length and breadth) of Diaper in 'centimeter', or millimeter', the petitioners - accused violated the provisions of Rule 18 of the Rules, which violation is punishable under Rule 39 of the Rules. While contending so, he submitted that the present petition filed under Section 482, Cr.P.C. by the petitioners seeking quashing of the entire proceedings in the said case deserves to be dismissed as being devoid of merits.

7. Rule 18 of the said Rules reads as under :

"18. Declaration with regard to dimensions of certain commodities :- Where a package contains commodities like bed sheets, hemmed fabric materials, dhoties, sarees, napkins, pillow-covers, towels, table cloths or similar other commodities, the number and the dimensions of finished size of such commodities shall also be declared on the package or on the label affixed thereto:

PROVIDED that where the package contains more than one piece of different dimensions the package shall also contain a declaration as to the dimensions and the retail sale price of each such piece:

PROVIDED FURTHER that the dimension of the commodities and the sale price thereof shall also be marked on each individual piece."

8. On plain reading of the above provisions of Rule 18 of the Rules, it is clear that in order to attract the said provisions, the commodities contained in a package must conform to the description of one or the other of the commodities mentioned therein. Therefore, the learned Senior Counsel for the petitioners, placing strong reliance on the decision of Andhra Pradesh High Court in the case of Christine Hoden (India) Pvt. Ltd. and another Vs. State of Andhra Pradesh reported in 1997(2) Prevention of Food Adulteration Cases 141, contended that the Andhra Pradesh High Court has held in the said case that "sanitary napkin" could not be held to be a 'napkin' so as to attract the provision of Rule 18 of the Rules and therefore the Diaper which does not resemble any of the commodities listed under Rule 18 of the Rules, cannot be held to attract the provisions of the said Rules and therefore no offence could be made out against these petitioners.

9. Learned High Court Government Pleader, referring to dictionary meaning of the word 'Diaper' as found in the Standard Dictionary, by D. K. Bharadwaj, 3rd Edition, (at page 250) wherein its meaning given as 'fine linen towel, a small towel, napkin', strongly contended that this Diaper has to be held to be napkin and therefore the provisions of Rule 18 are attracted.

10. On careful reading of Rule 18 of the Rules, it could be seen that, the words 'commodities like' are used at the beginning of the list of commodities mentioned therein while describing the commodities and the words 'similar other commodities' are used at the end of the list. The commodities listed in the said Rule are bed sheets, hemmed fabric materials, dhoties, sarees, napkins, pillow-covers, towels and table cloths. It could be seen that, undisputedly, all the said commodities are similar to one another in as much as, they are all, of woven cloth of different sizes used for different purposes.

11. One package containing Diapers is made available to the Court by the learned counsel for the petitioners. It is not in dispute that the diaper contained in this package is same as the one contained in the packages seized by the complainant from the shop of accused Nos.3 and 4 as allegged in the complaint. As to the materials used in manufacturing this Diaper, there is declaration on the package which is not in dispute. It reads as under :

"Surface materials: Polyolefin non-woven; absorbent materials: Polyester non-woven, polyolefin non-woven. Fluff pulp, Absorbent polymer; Waterproof materials; Polyolefin film; Fastening materials: Adhesive tape, Polyolefin: Stretch materials: Synthetic rubber; Adhesives: Hotmelt adhesives."

12. One piece of Diaper is taken out from the said package during the arguments. On careful examination of the said Diaper, it could be seen that it is not a woven piece of cloth like any bed sheet, dhoti, saree, napkin, pillow-cover, towel, tablecloth which are all listed under Rule 18 of the Rules. On tearing the outer layer i.e., surface material, of Diaper, it is seen that it is a non-woven material. Below this surface layer, there is absorbent i.e., non-woven polyester which looks like surgical cotton. This absorbent would absorb fluid. Further, adhesive tape, stretch materials are used in it for fastening it to the body of the baby.

13. This commodity viz; Diaper, which is made up of various materials as noticed above, is meant to be used to cover the genitals and excretory organs of the baby, so that it would absorb and retain with it urine and stools passed by the baby. Therefore, I am of the considered opinion that this Diaper cannot be held to be 'similar' to any of the commodities listed under Rule 18 of the rules namely dhoties, sarees, napkins, pillow-covers, towels, table cloths etc., which are all woven cloth of different sizes. This commodity, besides being dissimilar to all the said commodities listed under the said rule, is specially designed for the unique purpose of absorbing urine and stools excreted by infant babies.

14. In the aforesaid decision. Andhra Pradesh High Court has observed as under :

"A) Standards of Weights and Measures (Packaged Commodities) Rules, 1977 - Rules 6(1)(g), 12(4)(d)(x) and 18 - contravention of - a combined reading of Rule 6(1)(g). Rule 12 (4) and Rule 18 reveals that the dimensions of the sanitary towels (napkins) are not required to be exhibited on their packages for the simple reason that towels and napkins do not include sanitary towels and napkins because they are two separate and distinct commodities. Sanitary towels and napkins are to be used by only females and that too for a particular period in a month. It goes without saying that sanitary towels and napkins cannot be used as towels and napkins. There appears to be a deliberate omission in sub-rule (4) of Rule 12 as also in Rule 18 of the Commodities Rules as regards the sanitary towels and sanitary napkins - the petitioners cannot be prosecuted for not declaring dimensions of the sanitary towels and sanitary napkins because these articles are not specifically mentioned in sub-rule (4) of Rule 12 and Rule 18 of the Commodities Rules."

15. Since the sanitary towel is held to be not a napkin, the present commodity i.e. Diaper, which is not a woven cloth, but made up of several materials as observed supra, specially designed for absorbing the fluid excreted by the infant baby, be said to be similar to the woven napkin or dhoti, saree, pillow-cover, towel, table cloth which are listed under Rule 18 of the said Rules. Commodities such as Lungi, Curtain cloth may be held to be similar to Dhoti/Saree/Bedsheet/Table cloth, etc. Further, if this Diaper and all the said commodities listed under Rule 18, except the 'napkin', are put together and one is asked to pick a napkin from them, that person, may either pick a small towel or may say that no napkin is found there but, certainly he would not pick the Diaper for the reason that it does not look like either napkin or any of the said other articles.

16. Therefore, even if the words 'commodities like' and 'similar other commodities' are given too liberal interpretation, it cannot be held that this commodity 'Diaper' could be brought under the list of commodities mentioned under Rule 18 of the Rules on the ground of similarity between this Diaper and any of the said commodities listed thereunder.

17. Since the Diaper could not be held to be similar to any of the commodities listed under Rule 18 of the Rules, there could be no violation of the said Rule if its dimension is not declared on the package containing the Diapers in terms of millimeter or centimeter. Therefore, if, on the package containing diapers, the size of diaper is declared as 'S' (small); 'M' (medium); 'L' (large), instead of declaring the same in terms of 'metric units', it could not be held to be violative of Rule 18 of the Rules, which violation is made punishable under Rule 39 of the Rules. Consequently no violation of any of the other provisions of the said Act or the said Rules could be made out against the petitioners herein who are respectively accused Nos.1 and 2 in the said case before the Trial Court. Hence all further proceedings in the said case deserve to be quashed as against them.

18. Since no case could be made out against accused Nos.1 and 2 therein, who are respectively the importer and distributor/supplier of the seized packages containing Diapers, accused Nos.3 and 4 also cannot be held liable for prosecution for any of the offences alleged against them by reason of they possessing the said commodity for the purpose of sale in the said shop. Therefore, though the said accused have not approached this Court, the proceedings in the said case cannot be continued against them in the absence of accused Nos.1 and 2. Therefore, the proceedings in the said case are liable to be quashed as against the accused Nos.3 & 4 also.

For the reasons aforesaid, the present petition under Section 482, Cr.P.C. is hereby allowed. The entire proceedings in CC No.590-2005 pending on the file of the learned Metropolitan Magistrate (Traffic Court I), Bangalore are hereby quashed as against the present petitioners, who are respectively accused Nos.1 and 2 and also as against other accused Nos.3 and 4.

A copy of the order shall be sent forthwith to the Trial Court.

Petition allowed.