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THE STATE OF MAHARASHTRA AND ORS. v.

RAJ MARKETING & ANR. (Civil Appeal No. 1119 of 2010)

AUGUST 26, 2011 [P. Sathasivam and H.L. Gokhale, JJ.]

[2011] 10 SCR 722

The Judgment of the Court was delivered by

P. SATHASIVAM, J. 1. This appeal by State of 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 Ist respondent herein.

2. The issue involved in this appeal is whether Candy man, 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 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 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 Candy man, Minto-Fresh, Kitchens of India,  

Badam Halwa and Ashirvaad Atta etc. vide seizure memo bearing Nos.  

0114769 and 0114770 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, month, year etc. has not been declared

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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 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 the Standards of Weights and  

Measures (Enforcement) Act, 1985.

d) On 18.11.2006, the respondents, vide their letter, 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.

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 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 appellant-State  

and Mr. Ravinder Narain for respondent No.1.

7. Rule 2(x) of the Rules define “wholesale package” to mean:

“(x) “wholesale package” means a package containing-

(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

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(ii) a commodity sold to an intermediary in bulk to enable 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.”

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,-

(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

(c) the total number of retail packages contained in such wholesale  

package or the net quantity in terms of standard units of weights,  

measures or number of the commodity contained in wholesale package:

Provided that nothing in this rule shall apply in relation to a wholesale  

package if a declaration similar to the declaration specified in this rule, is  

required to be made 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 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 is only for safety, convenience or the like. As  

demonstrated before the High Court, the counsel appearing for the Ist  

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

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contention was that the secondary 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 that the secondary outer packing  

for transportation or for safety of the goods being 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 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.