LEGAL METROLOGY

The Legal Metrology Act, 2009: Section 36(1)

The legal community has been discussing whether section 36(1) of the Legal Metrology Act, 2009 provides for  penal action for mis-declaration/false declaration or non-declaration or both. The section 36(1) reads as follows:

  1. Penalty for selling, etc., of non-standard packages. –

(1) Whoever manufactures, packs, imports, sells, distributes, delivers or otherwise transfers, offers, exposes or possesses for sale, or causes to be sold, distributed, delivered or otherwise transferred, offered, exposed for sale any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act, shall be punished with fine which may extend to twenty-five thousand rupees, for the second offence, with fine which may extend to fifty thousand rupees and for the subsequent offence, with fine which shall not be less than fifty thousand rupees but which may extend to one lakh rupees or with imprisonment for a term which may extend to one year or with both.

(emphasis added for ease of reference purpose).

Legality of Marginal Note:

Penalty for selling, etc., of non-standard packages”, the said expression exists as marginal note as evident from published gazette notification. A marginal or side-note is inserted by the draftsman as an indication, but not as a definition, of the contents of the section. It is established law that marginal note shall not be taken note of when the provisions of the section are clear and unambiguous and at any rate the marginal note cannot restrict the meaning of the Section. In Director of Public Prosecutions Vs. Schildkamp, (1969) 3 All ER 1640, Lord Reid opined that a side note is a poor guide to the scope of a section for it can do no more than indicate the main subject with which the section deals and Lord Upjohn opined that a side note being a brief précis of the section forms a most unsure guide to the construction of the enacting section and very rarely it might throw some light on the intentions of Parliament just as a punctuation mark. Thus it cannot be said that this section solely deals with offence related to dealing in “non-standard packages”. The “non-standard package” package is not defined under the Legal Metrology (Packaged Commodities) Rules, 2011 but the section 2(o) of the Legal Metrology (Packaged Commodities) Rules, 2011 defines “standard package” means a package containing the specified quantity of a commodity.

In contrast the section 36(1) not only deals in matter related to quantity of commodity but other declarations required as per the Legal Metrology (Packaged Commodities) Rules, 2011. Thus ex facie this marginal note cannot restrict the meaning of said section 36(1) to “non-standard package” i.e. not confirming to quantity mis-declaration only.

Expression: “Conform to the declarations on package”

Ex Facie the expression “conform to the declarations on package” signify that packaged commodities should confirm to declaration made on the package. However, on careful reading it also leads to interpretation that (i) packaged commodities should confirm to declaration on package as well as (ii) the declaration on package should be as required/provided in the Legal Metrology Act.

Whether such extended interpretation is as per intention of legislature or letter and spirit of section needs to be examined. The responsibility of correct declaration regarding commodity is on manufacturers, packers, importers, sellers and distributors and other entity dealing in such product before being sold to the retailer. There is no dispute that declarations on package should be as per the provision of the Legal Metrology Act (Section 18).

What needs to be examined whether any declaration (including non-declaration) on package not conforming to declarations as provided in the Legal Metrology Act, 2009 is a contravention covered under penal provision of section 36(1) of this Act or in other word section 36(1) solely deals with non-declaration and/or mis-declaration/false declaration.

When any or all of the statutory declarations are not there on pre-packaged commodity in the prescribed format, the provisions of Section 18(1) read with the provisions of Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011 are violated. Thus there is breach of Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011. The Rule 32 of the Legal Metrology (Packaged Commodities) Rules, 2011(as amended by GSR 385(E) dated 14.05.2015) provides for punishment for breach of rules. The Rule 32 reads as follows:

  1. Penalty for contravention of Rules – (1) Whoever contravenes the provisions of rules 27 to 28, he shall be punished with fine of four thousand rupees.

(2) Whoever contravenes any other provision of these rules, for the contravention of which no punishment has been provided he shall be punished with fine of two thousand rupees.

(3) Sum of compounding of offences.-The sum of compounding of offences committed under the said Act shall be as specified in the following Table, namely:

 

TABLE

Sr.No. Offence Compounding amount
(1) (2) (3)
    If the application for compounding is by retailers or wholesale dealers If the application for compounding is by manufacturers or importers
1.     Contravention of Section 29 Rupees two thousand Rupees ten thousand
2.     Contravention of sub-section (1) of Section 36 Rupees five thousand Rupees twenty five thousand
3.     Contravention of sub-section (2) of Section 36 Rupees ten thousand Rupees fifty thousand
4.     Selling of products for more than the maximum retail price Rupees two thousand Rupees five thousand

In case of IMS Mercantiles Pvt. Ltd. vs Union of India and Ors..( W.P.(C) 4784/2014 and CM No.9529/2014, Delhi High Court) the appellant has not declared Rs.in declaration regarding maximum retail price (‘MRP 299.00’). The compounding of offence of such non-declaration was upheld under Rule 32(3) of the Legal Metrology (Packaged Commodities) Rules, 2011as Contravention of sub-section (1) of Section 36 of the Legal Metrology Act, 2009. However, in this case it was not in dispute that the offence was punishable under Section 36 of the Act (para11). Thus Hon’ble Delhi High Court per se had no occasion to examine the applicability of Section 36(1) of the Legal Metrology Act, 2009 for non-declaration of Rs.’.

In case of Abhinash Bajaj vs State of Assam (CR 117/12, JMFC Court,  Sonitpur, Tezpur, Assam), the JMFC court also held that the penal provision for violation of Rule 6(1) (e) (non-declaration of RSP) of the Legal Metrology (Packaged Commodities) Rules, 2011 is Sec. 36 (1) of the Legal Metrology Act, 2009 (Para12).

Interpretation of following Expression:

I. “Any pre-packaged commodity which does not conform to the declarations on the package as provided  in this Act”.

If the expression “on the package” is deleted for the sake of interpretation, it specifically extends the meaning that declaration should be as provided under the Act (Section 18(1)) to escape from contravention. It is more so as the section 18 of the Metrology Act, 2009 provides for declaration to be made on pre- package commodity (Non-Declaration).

II. “Any pre-packaged commodity which does not conform to the declarations on the package as provided  in this  Act”.

If the expression “as provided in this act” is deleted for the sake of interpretation, it specifically extends the meaning that commodity should confirm to the declaration on the package for escaping from contravention (false declaration/mis-declaration).

III. “Any pre-packaged commodity which does not conform to the declarations on the package as provided in this Act”.

If the expressions “on the package” & “as provided in this act” are deleted, than the question arise, “Which declarations”, the answer will be declaration “on the package”. Further, the question will also arise whether it can be any declarations on package; the answer to this lies in “as provided in this act”. Thus it is amply clear that declarations should be on package as per the provision of the Legal Metrology Act, 2009 and not any declaration “which is not on package” and not as “as provided in this act”. If the declaration on the package is not as per the provision of the Legal Metrology Act, 2009, it shall be contravention within the spirit and meaning of Section 36(1) of the Legal Metrology Act, 2009. Thus it will include all cases of non-declaration as per the provision of the Act and also such declarations not as per mode and manner prescribed under the Legal Metrology Act, 2009 (Non-declaration).

The word “declarations” is joined with the expression “the package” with preposition “ON”.  The word “declarations” is also joined with the expression “provided in this act”” with preposition “AS”.

Prima facie, it appears that pre-package commodity should conform to both (1) declaration as per the Provision of the Act & (2) declaration on the package. Further, the “declaration” has to be invariably on package whether or not it is expressly mentioned “on package” or not and also “declaration on package” is single expression defined and provided under section 18 of the Legal metrology Act, 2009. Legally, the expression “on package” should have no bearing on interpretation as declaration per se refers to declarations on package. In view of this the interpretation given above (at serial No. I and III) by deleting expression “on the package” and/or “as provided in this act” seems to be logical and legally sustainable.

However, the offence of mis-declaration and false declaration which is greater vice appears to be out of scope of section 36(1) of the Legal Metrology Act, 2009 under such interpretation and it will attract lesser penalty under the Rule 32(2) of the Legal Metrology (Packaged Commodities) Rules, 2011 if not provided under any provision but there are other provisions in the act which deals with offence like mis-declaration of weight (Section 30) etc.

The first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India,( AIR 2004 SC 4219).

All the forgoing discussion specifically concludes the premises that section 36(1) of the Legal Metrology provides for non-declarations on the package as per provision of the Legal Metrology Act, 2009.

Rajni Sinha

Advocate, Bombay High Court.

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