Allowed

M/S the Azad Co. v. State of U.P. and Another

Allahabad HC18 Jan 2020A482/2387/2002

Case brief

AI extract

What is this about?

The court quashed the entire criminal proceedings and summoning order in a complaint case involving a promotional sale scheme. The judge held that a one-time sale promotion offering free gifts does not constitute a custom, usage, or practice under Section 34 of the Standards of Weights and Measures Act, 1985.

What did the court decide?

Application allowed; entire proceedings of Complaint Case No. 670 of 2002 quashed; compensation of Rs. 25,000 awarded.

M/S the Azad Co. Vs State of U.P. and Another — Writ and Judicial Review | Allahabad HC (2020)

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 2387 of 2002 Applicant :- M/S The Azad Co. Opposite Party :- State of U.P. and Another Counsel for Applicant :- Saumya Mandhyan Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal,J.

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Heard Ms. Saumya Mandhyan, learned counsel for applicant and learned A.G.A. for State.

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Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash summoning order dated 04.02.2002 and entire proceedings of Complaint Case No. 670 of 2002, filed by Senior Inspector, Standrds of Weights and Measures (Enforcement) Act, 1985.

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Applicant is dealer of electronic items, primarily audio visual equipment like products of T-series Cassettes etc. manufactured by Super Cassettes Industries Ltd. A sale promotion scheme was published by company that some sophisticated VCD Players shall be available at the cost of Rs.6,955/- only with free gift amounting to Rs. 3500/-. After publication of aforesaid promotional advertisement, Senior Inspector, Standards of Weights and Measures Department, Allahabad visited dealers including applicant and served a notice dated 12.10.2001 under Section 34 and 59 of Standards of Weights and Measures (Enforcement) Act, 1985 (hereinafter referred to as 'Act 1985'), which reads as under:

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Þfnukad 12-10-2001 dks nSfud tkxj.k esa izdkf'kr foKkiu dk lanHkZ xzgk.k djsa ftlesa vki }kjk Vh ljht VCD Iys;j VD- 9000 dh [kjhn ij :i;k 3500 ds eqQr migkj fn;s tkus dk izko/kku gS ftlesa :0 2500 ewY; ds 10 vkfM;ks fofM;ks lh-Mh- VkbVYl o :i;k 1000@& dk ,d ok;jysl djksds ekbd fcYdqy eqQr fn;s tkus dk izko/kku gsA tks fd mijksDr /kkjkvksa ds vUrxZr xEHkhj n.Muh; vijk/k gSA mlds vfrfjDr ;g dk;Z vuQs;j VªsM ,.M izSfDVl dks c<+kok nsrk gSA

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mijksDr vf/kfu;e dh /kkjk 65 ds vUrxZr bl ekeys esa U;k;ky; esa eqdnek u pykdj fu;U=d ¼dUVªksyj½ }kjk le>kSrk fd;k tk ldrk gSA

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vr% vkidks uksfVl fn;k tkrk gS fd vkt dkj.k crk;sa fd vki ij eqdnek D;ksa u pyk;k tk;\ ;fn vki mijksDr ekeys esa le>kSrk djuk pkgrs gSa

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rks viuk vkosnu i= 3 :0 ¼rhu :i;s½ dh dksVZ Qhl LVSEi yxkdj bl dk;kZy; esa ;g uksfVl ikus ds ,d lIrkg ds vUnj nsa ojuk vkids f[kykQ vnkyr esa eqdnek pykus dh dk;Zokgh dh tk;sxhAß

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“Please have reference of the advertisement published in Dainik Jagran daily on 12.10.2001 in which you had offered free gifts worth Rs. 3,500/- which includes Audio Video CD titles worth Rs. 2,500/and a wireless Karaoke mic worth Rs. 1,000/- on purchase of a T- Series VCD player VD-9000. The same is a serious offence punishable under the aforesaid sections. Apart from this, the said act promotes unfair trade and practice.

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Under section 65 of the aforesaid act, the Controller, instead of instituting a prosecution in the court, may compound this offence.

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Hence, you are given a notice to show cause as to why a case should not be initiated against you. In case you wish to go for a compounding in the aforesaid matter, you are required to submit your application to this office affixing a court fee stamp of Rs. 3/- thereon within a week from the date of receipt of this notice otherwise proceeding for bringing a case against you in the court shall be initiated.”

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(English translation by the Court)

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Thereafter Senior Inspector, Standards of Weights and Measures Department, Allahabad filed complaint dated 28.11.2001 under Section 34 and 59 of the Act 1985 , which reads as under:

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Þfnukad 12-10-2001 ds lekpkji= nSfud tkxj.k esa fuekZrk@Mhyj }kjk izdkf'kr foKkiu ftlesa QeZ }kjk Vh ljht VCD Iys;j VD- 9000 dh [kjhn ij :i;k 3500¾00 dk eqQr migkj ftlesa 2500¾00 :i;s ds vkfM;ks fofM;ks CD VkbVYl o :i;k 1000¾00 dk ,d ok;jysl djksds ekbd fcYdqy eqQr fn;s tkus ds laca/k esa Jh ds- Mh- ik.Ms;] ofj"B fujh{kd }kjk uksfVl fnukad 12-102001 rFkk uksfVl fn0 28-11-2001 fn;k x;k Fkk ftls QeZ }kjk izkIr Hkh fd;k x;k FkkA QeZ }kjk fuEu /kkjkvksa dk mYya?ku fd;k x;k gS tks fd n.Muh; vijk/k gSAß

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“Notices dated 12.10.2001 and 28.11.2001 were served upon the firm by Shri K.D. Pandey, Senior Inspector in connection with an advertisement published in Dainik Jagran daily on 12.10.2001 by the manufacturer/dealer for giving free gifts worth Rs. 3,500/- which includes Audio Video CD titles amounting to Rs. 2,500/- and a wireless Karaoke mic worth Rs. 1,000/- on purchase of a T-Series VCD player VD 9000. The provisions of Standards of Weights and Measures (Enforcement) Act have been violated by firm, which is a punishable offence.”

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(English translation by the Court)

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It is contended that Magistrate concerned has not applied its mind and in a mechanical manner passed summoning order dated 04.02.2002 inasmuch

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as ex facie no offence under Sections 34 and 59 of Act, 1985 has been made out still Magistrate has summoned applicant and this is nothing but a gross abuse of process of law.

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I have examined the matter in the light of Section 34 and 59 of Act 1985, which reads as under:

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“34. Custom or usage requiring delivery of additional quantities to cease-

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(1) Any custom, usage, practice or method of whatever nature which permits a person to demand, receive, or cause to be demanded or received, any quantity of article, thing or service in excess of; or less than, the quantity specified by weight, measure or number in any contract or other agreement in relation to the said article, thing or service, shall be void.

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(2) Where in relation to any commodity sold by number there is a custom or usage of delivering a fixed number of such commodity in addition to the number of commodities paid for, such custom or usage shall, on and from the commencement of this Act, cease. ”

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“59. Penalty for contravention not separately provided for- Whoever contravenes any provision of this Act for the contravention of which no punishment has been separately provided for in this Act, shall be punished with fine which may extend to two thousand rupees.”

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(Emphasis added)

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Section 34 of Act, 1985 as reproduced above, I find, has two parts. Sub-section (1) says that if there is any custom, usage, practice or method of whatever nature which permits a person to demand, receive, or caused to be demanded or received any quantity of article, thing or service in excess of; or less than, the quantity specified by weight, measure or number in any contract or other agreement in relation to the said article, thing or service, it shall be void. Sub-section (2) provides, when any commodity is sold by number, and there is a custom or usage of delivering a fixed number of such commodity in addition to the number of commodities paid for, such custom or usage from the date of commencement of Act, 1985 would cease.

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In the present case when a sale promotion scheme is launched, it cannot be said to be a custom, usage, practice or method.

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Learned A.G.A. stated that word “method” should not be read as

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ejusdem generis with the words “custom, usage or practice” but it covers even a one time invitation in the form of sale promotion or scheme. I find myself difficult to accept it but even if it is accepted it should permit the person to demand or receive any quantity in excess of or less than quantity specified by weight, measure or number in any contract or other agreement in relation to said article, thing or service and same shall be void. Here the number of VCD player is neither to be added nor reduced. One VCD played was offered to be purchased and thereupon sale promotion scheme permits free gift. The article sought to be purchased, its number is neither reduced nor increased. Therefore, Section 34(1) is not attracted. Even complaint shows that complainant treated it to be an unfair trade practice which by itself is not contemplated to be an offence under Section 34.

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Application is, accordingly, allowed. Entire proceedings of Complaint Case No. 670 of 2002 are quashed. In my view applicant deserves compensation for frivolous litigation imposed upon him which I quantify Rs. 25,000/-. It shall be paid by State but it would have liberty to recover the same from officer concerned in accordance with law.

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Order Date :- 18.1.2020 Ashish Pd./AK

M/S the Azad Co. v. State of U.P. and Another

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M/S the Azad Co. v. State of U.P. and Another

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