LEGALLIB

The focus of the judicial system should to be to wipe every tear of every waiting litigant.

2009-08-16T05:53:00.000-07:00

The Prime Minister, Dr. Manmohan Singh's address to the Joint Conference of Chief Ministers and Chief Justices in New Delhi on 16th August 2009

I am very happy to be with you at this very important joint conference of Chief Ministers and Chief Justices. This is an extremely valuable institutional forum for fruitful interaction between two vital wheels of the chariot of good governance - the Executive and the Judiciary. The enormous and often non quantifiable benefits of such meaningful dialogue in such exchanges cannot be overemphasized. Institutional interactions like this create a deeper understanding of each others’ perspective, enhance trust and impart the necessary direction and momentum for processes of good governance.

The Indian legal and judicial system, in one sense, reflects a certain contradiction. India, the world’s largest democracy and home to the second largest pool of lawyers, has legislatures elected by the world’s largest electorate. It has the world’s longest and most comprehensive Constitution, a fiercely free press and institutional bulwarks of freedom like the Election Commission of India and the Comptroller and Auditor General of India. Its judiciary is dynamic and completely independent and we take pride in this. Despite its unelected character, the people’s faith has been reposed in the judicial organ in a very large measure. The legal system is manned by legal luminaries second to none in the world. Amazingly innovative legal doctrines and precepts have been the gift of the Indian legal system to the world. The “basic structure doctrine” and “public interest litigation” are but two examples. Judicial review has breached unprecedented frontiers. Yet, amidst such strengths, brilliance and dynamism, India has to suffer the scourge of the world’s largest backlog of cases and timelines which generate surprise globally and concern at home. The expeditious elimination of this scourge is the biggest challenge for such conferences and should constitute the highest priority for all of us.

The mammoth number of pending cases cannot be allowed to disillusion or dishearten us. It has to spur us to even higher peaks of achievement and bring out the best from every stakeholder, acting in coordination to progressively overcome this great challenge. In this war, a holistic and multipronged approach is vital. There is no space for piecemeal, patchy or sectoral responses. However, grand mega plans must be tempered and accompanied by common sense, nitty gritty solutions. Adapting Thomas Hardy’s admonition - if we take care of the small things, the big things will take care of themselves - we have to combine and harmonise both the big and the small. In this war on arrears, the entire legal system and each rung of it has to function as a seamless web and an indivisible whole. Naturally, the apex court has to discharge a vital role. It has to be a catalyst, an organiser, a mentor, an umpire, a participant , and, above all, a role model, all at the same time. I can assure this august gathering with all the emphasis at my command that my Government will not be found wanting at any level in this joint effort. We promise to match each step of the judiciary with two of our own. We will not hesitate to walk the extra mile at every opportunity.

The procedural, substantive, or attitudinal reforms which must be continuously and collectively applied to achieve results are diverse in nature. Meritorious individuals should be appointed timely to judicial posts, which have been enhanced at the High Court level by 150 in the last few years. The existing vacancies in High Courts are quite high in number and need to be filled up urgently. I would urge the Chief Justices of High Courts to initiate proposals for quickly filling up these posts. Vacancies at the subordinate level roughly comprise, I have been told, 20% to 25% of subordinate judicial posts. I am told that almost 3000 posts of judges in the country are vacant because of delay in recruitment. All these vacant posts at the subordinate levels need to be filled up without any further loss of time. The State Judicial Academies need to be strengthened for building capacities of judicial officers. Comprehensive computerisation and ultimate linking of all courts in the country into one mega judicial information grid needs to be tailored and adapted to enable screening of all pending cases. Such screening would facilitate disposal of many old cases as moot or infructuous. Despite the recent increases in judicial strength, there is scope for significant future increase in court strength to improve India’s low judge per million population ratio. This is subject, of course, to expeditious filling of existing vacancies. The mechanisms and processes for providing legal aid to the marginalised sections of the society need to be improved.

Consensual Dispute Resolution – whether by way of arbitration or diverse forms of mediation – is an effective bypass to litigation, with significant preventive and curative virtues. The Civil Procedure Code now offers an empowering menu of alternative dispute resolution (ADR) choices. I am happy to note that court annexed mediation centres are now being created at different levels. But they remain still a drop in the ocean. The plea bargaining provided for by the law since 2005 has not been fully utilised till now. There is a need to give it wider publicity to reduce the pendency of cases and the number of under-trials in the country.

The Honorable President of India in her address to the Joint Session of Parliament in June 2009 has directed that a roadmap for judicial reforms be outlined in the next six months and implemented in a time-bound manner. I am happy that the Ministry of Law and Justice is working on such a road map. Shri Moily has also informed me that consultations on the reform initiatives have started with the various stakeholders. A National Consultation with jurists and stakeholders will be held in New Delhi very shortly. This will throw up the broad contours and set the stage for reform. But a lot of work will still have to be done for crafting a detailed blueprint and ensuring its implementation thereafter.

At the last Conference, I had mentioned that we had introduced the Gram Nyayalays Bill in Parliament. Though the legislation has since been enacted in January this year, it is yet to be enforced. I would urge that the state governments initiate immediate action to operationalize the Gram Nyayalayas Act in their States. Once the Act is fully implemented, we will have more than 5000 courts at the intermediate panchayat level. These will bring justice to the doorstep of the common people, who currently feel that getting justice in India is not only time-consuming and costly but sometimes also an intractable proposition. The Central Government has committed assistance to States for setting up the Gram Nyayalays. While there could be differing views on the adequacy of the assistance being provided, this should not hold us from speedily bringing the Act into force.

I am very happy to inform you that the Government of India, on the advice of the Chief Justice of India, has agreed to establish 71 additional CBI Courts in different states. Fast Track Courts should conduct their business differently and faster than normal courts; only then we shall be able to tackle the pendency in cases.
A matter of concern, indeed, worry, is the large number of under-trials in our jails. Many such under-trials have been in jail for periods longer than they would have served had they been sentenced. This is indeed very disturbing. There have been pronouncements of the High Courts and the Supreme Court on this issue but still the number of under-trials in jails continues to be very large. I sincerely hope this Conference will devote some time to this issue.

Let me conclude by suggesting to this august gathering that we take a vow to ensure that the enormous global respect for the Indian judiciary for its path-breaking doctrines and consistent independence be soon matched by similar accolades for an arrear free judicial institution. Like Gandhiji’s common man, the focus of the judicial system should to be to wipe every tear of every waiting litigant. I hope your deliberations will be centred on the single most important stakeholder in this system- the consumer of justice. Unless we meet his or her legitimate demands and expectations in letter and spirit, we cannot rest in peace.

I congratulate the Chief Justice of India and my colleague, Shri Moily ji for having taken the initiative to organize this very important conference. Great importance is attached to your deliberations. Let me end by wishing you a very successful conference and all the very best in your endeavours.”

Homosexuality between adults an fundamental right -Delhi High Court's Historical Judgment

2009-07-02T05:09:00.000-07:00

The historical judgment from Delhi High Court on declaring consensual homosexuality between adults an fundamental right has 105 Pages, 132 para and 26397 words. It is very big to publish here. So we are publishing here only conclusion of the judgment.

IN THE HIGH COURT OF DELHI AT NEW DELHI
WP(C) No.7455/2001
Date of decision : 2nd July, 2009

Naz Foundation .... Petitioner

versus
Government of NCT of Delhi
and Others .... Respondents

CORAM: HON’BLE THE CHIEF JUSTICE & HON’BLE DR. JUSTICE S.MURALIDHAR

JUDGMENT BY : AJIT PRAKASH SHAH, CHIEF JUSTICE:

.....................................
...................................
CONCLUSION
129. The notion of equality in the Indian Constitution flows from
the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru
on December 13, 1946. Nehru, in his speech, moving this
Resolution wished that the House should consider the
Resolution not in a spirit of narrow legal wording, but rather
look at the spirit behind that Resolution. He said, ”Words are
magic things often enough, but even the magic of words
[WP(C)7455/2001] Page 103 of 105
sometimes cannot convey the magic of the human spirit and
of a Nation’s passion…….. (The Resolution) seeks very
feebly to tell the world of what we have thought or dreamt
of so long, and what we now hope to achieve in the near
future.” [Constituent Assembly Debates: Lok Sabha
Secretariat, New Delhi: 1999, Vol. I, pages 57-65].

130. If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and nondiscrimination.
This was the 'spirit behind the Resolution' of
which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is antithesis
of equality and that it is the recognition of equality
which will foster the dignity of every individual.
[WP(C)7455/2001] Page 104 of 105

132. We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution. The provisions of
Section 377 IPC will continue to govern non-consensual
penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of age
and above. A person below 18 would be presumed not to be
able to consent to a sexual act. This clarification will hold till,
of course, Parliament chooses to amend the law to
effectuate the recommendation of the Law Commission of
India in its 172nd Report which we believe removes a great
deal of confusion. Secondly, we clarify that our judgment
will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.

CHIEF JUSTICE
JULY 2, 2009 S.MURALIDHAR, J
“nm/v/pk”
[WP(C)7455/2001] Page 105 of 105

A social behaviour without intention may be offence of abetment- SC of India Judgment

2009-06-02T06:11:00.000-07:00

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003

Dammu Sreenu Versus State of A.P.

JUDGMENT By-Dr. Mukundakam Sharma, J.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC') whereby he was sentenced to undergo rigorous imprisonment for three years.

2. The appellant herein allegedly had illicit relationship with the wife of the deceased Bitra Nagarjuna Rao. The wife of the deceased was also made a co-accused in the same offence under Section 306 IPC and she was convicted for the aforesaid offence and was sentenced initially to undergo rigorous imprisonment for a period of three years which, however, later on was altered to one year of rigorous imprisonment by the High Court of Andhra Pradesh. The said sentence of one year has been served out by Accused No. 2, the wife of the deceased Bitra Nagarjuna Rao.

3. The prosecution has alleged in its case that the present appellant had developed an illicit intimacy with Accused No. 2, who was the wife of the deceased Bitra Nagarjuna Rao. On the night of 31.12.1995, accused No. 2, the wife of the deceased went out of her house and returned to her matrimonial home only on the next day. The deceased, Bitra Nagarjuna Rao was unhappy with the aforesaid conduct and so, naturally questioned her about her behaviour because of which there was a quarrel between the two. Being disturbed and perturbed on account of the behaviour of his wife (Accused No. 2), the deceased, Bitra Nagarjuna Rao called the father of Accused No. 2 and asked him to take her away so as to give her proper counselling. Accordingly, she was taken away by her father. On the same day the present appellant (Accused No. 1) came to the house of the deceased and when he was questioned by the inmates of the house of the deceased, he stated that he had illicit relations with the wife of the deceased and that he would keep coming to the house of the deceased so long she does not object to the same. When he was told that Accused No. 2 had gone with her father, Accused No. 1 went to the house of the brother of Accused No. 2 and took her away despite the protest of PW-5, brother of Accused No. 2, in whose house his father kept her. The appellant took her away and brought her back to the house of her brother only after 4 days and to her parents' house on 06.01.1996.

4. Having come to know about the aforesaid incident, the deceased felt humiliated and insulted. He committed suicide by hanging himself in the intervening night of 7th and 8th January, 1996. It is also to be noted, at this stage, that prior to his suicide, the deceased, Bitra Nagarjuna Rao expressed before his brother that it would be better to die as he felt very much insulted and humiliated. The deceased having committed suicide, his brother gave a report to the police which was registered as a case under Section 174 of Criminal Procedure Code, 1973 (for short `the CrPC') which was, during the course of investigation, altered to a case of Section 306 IPC.

5. The police after investigation submitted a charge-sheet against the accused. The accused, however, denied the charge. Accordingly, he was tried under the aforesaid charges. During the course of trial the prosecution examined as many as 13 witnesses and the appellant-accused was also examined under Section 313 of the CrPC wherein he denied his involvement in the offence.

6. The trial court appreciated the materials available on record and, thereafter, passed a judgment and order of conviction. He convicted the present appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 100/- in default to undergo simple imprisonment for one month. The trial court also convicted accused No. 2, i.e. wife of the deceased, under Section 306 IPC and sentenced her to undergo rigorous imprisonment for a period of five years.

7. Being aggrieved by the aforesaid judgment and order of conviction and sentence the appellant as also the wife of the deceased filed a common criminal appeal in the court of IInd Additional Sessions Judge, Guntur which was registered as Criminal Appeal No. 32 of 1998. The said appeal was allowed in part and the conviction and sentence awarded by the trial court was altered and reduced by the learned Additional Sessions Judge to 3 years simple imprisonment.

8. In revision the High Court maintained the order of conviction against the accused-appellant but altered the sentence of Accused No. 2, i.e. the wife of the deceased to one year imprisonment which she has already undergone.

9. Now this appeal is, therefore, filed only by appellant No. 1, who was convicted and ordered to undergo simple imprisonment for three years. An order to release appellant No. 1 on bail was passed pursuant to which Accused No. 1 is on bail. The appeal was listed before us for hearing during the course of which we heard the learned counsel appearing for the parties and were also taken through the records.

10.According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused No. 1 is liable to be acquitted. It was submitted by him that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed.

11.The aforesaid submissions were, however, refuted by learned counsel appearing for the State contending inter alia that there is a concurrent find of facts by three courts below finding the appellant guilty of the offence under Section 306 IPC and, therefore, the said findings cannot be said to be in any manner as untenable or unjustified. 12.The fact that the appellant had illicit relationship with Accused No. 2, who was the wife of the deceased, is an admitted position for which there was no cross-examination on the point which was clearly stated by PW-5, who is the brother of Accused No. 2, in his statement on 2.1.1996 which is reproduced herein below :

"On 2-1-1996 my father brought A2 to my house at Tsunduru and he informed that she is having illicit contact with A1 to change her behaviour brought her to my house to keep some time. On the same day evening A1 came to my house and took away A2. Some discussion take place between myself and A1 regarding coming to my house. Due to fear, I could not resist for taking away A2."

13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.

14.The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accused No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased. Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon reappreciation of evidence on facts which are found and held against the appellant.

15.Considering the entire facts and circumstances of the case we are, therefore, not inclined to interfere with the order of conviction as also the order of sentence passed against the accused-appellant. We uphold the order of the High Court and dismiss this appeal. The bail bond of the accused-appellant stands cancelled. He shall surrender forthwith to serve out the remaining period of the sentence.

                                                             .................................J.
                                                                (Dr. Mukundakam Sharma)
                                                              ................................J.
                                                                (Dr. B.S. Chauhan)

New Delhi,
May 28, 2009

Criminal Medical Negligence, Jacob Mathew’s Case

2009-05-17T11:03:00.000-07:00

2005 AIR 3180 SC,
CASE NO.:
Appeal (crl.) 144-145 of 2004

PETITIONER:
Jacob Mathew

RESPONDENT:
State of Punjab & Anr.

DATE OF JUDGMENT: 05/08/2005

BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T

R.C. LAHOTI, CJI

Ashok Kumar Sharma, the respondent no.2 herein filed a First
Information Report with police station, Division No. 3, Ludhiana,
whereupon an offence under Section 304A read with Section 34 of the
Indian Penal Code (for short "the IPC") was registered. The gist of the
information is that on 15.2.1995, the informant's father, late Jiwan Lal
Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in
breathing. The complainant's elder brother, Vijay Sharma who was
present in the room contacted the duty nurse, who in her turn called
some doctor to attend to the patient. No doctor turned up for about
20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us
and Dr.Allen Joseph came to the room of the patient. An oxygen
cylinder was brought and connected to the mouth of the patient but
the breathing problem increased further. The patient tried to get up
but the medical staff asked him to remain in the bed. The oxygen
cylinder was found to be empty. There was no other gas cylinder
available in the room. Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom. However, there was no
arrangement to make the gas cylinder functional and in-between, 5 to
7 minutes were wasted. By this time, another doctor came who
declared that the patient was dead. The latter part of the FIR states
(as per the translation in English as filed by the complainant):_

"________the death of my father
was occurred due to the carelessness of
doctors and nurses and non availability of
oxygen cylinder and the empty cylinder was
fixed on the mouth of my father and his
breathing was totally stopped hence my
father died. I sent the dead body of my
father to my village for last cremation and
for information I have come to you. Suitable
action be done Sd/-     ---- As per statement
of intimator the death of Jiwan Lal Sharma
has occurred due to carelessness of doctors
and nurses concerned and to fit empty gas
cylinder."

    On the abovesaid report, an offence under Section 304A/34 IPC
was registered and investigated. Challan was filed against the two
doctors.

    The Judicial Magistrate First Class, Ludhiana framed charges
under Section 304A, IPC against the two accused persons, both
doctors. Both of them filed a revision in the Court of Sessions Judge
submitting that there was no ground for framing charges against
them. The revision was dismissed. The appellant filed a petition in the
High Court under Section 482 of the Code of Criminal Procedure
praying for quashing of the FIR and all the subsequent proceedings.

    It was submitted before the High Court that there was no
specific allegation of any act of omission or commission against the
accused persons in the entire plethora of documents comprising the
challan papers filed by the police against them. The learned single
Judge who heard the petition formed an opinion that the plea raised by
the appellant was available to be urged in defence at the trial and,
therefore, a case for quashing the charge was not made out. Vide
order dated 18.12.2002, the High Court dismissed the petition. An
application for recalling the abovesaid order was moved which too was
dismissed on 24.1.2003. Feeling aggrieved by these two orders, the
appellant has filed these appeals by special leave.

According to the appellant, the deceased Jiwan Lal was suffering
from cancer in an advanced stage and as per the information
available, he was, in fact, not being admitted by any hospital in the
country because his being a case of cancer at terminal stage. He was
only required to be kept at home and given proper nursing, food, care
and solace coupled with prayers. But as is apparent from the records,
his sons are very influential persons occupying important positions in
Government.   They requested the hospital authorities that come what
may, even on compassionate grounds their father may be admitted in
the hospital for regulated medical treatment and proper management
of diet. It was abundantly made clear to the informant and his other
relations who had accompanied the deceased that the disease was of
such a nature and had attained such gravity, that peace and solace
could only be got at home. But the complainant could prevail over the
doctors and hospital management and got the deceased admitted as
an in-patient. Nevertheless, the patient was treated with utmost care
and caution and given all the required medical assistance by the
doctors and para-medical staff. Every conceivable effort was made by
all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole
staff danced attendance on the patient but what was ordained to
happen, did happen. The complainant and his relations, who were
misguided or were under mistaken belief as to the facts, lodged police
report against the accused persons _ wholly unwarranted and
uncalled for.

    The matter came up for hearing before a Bench of two learned
judges of this Court. Reliance was placed by the appellant on a recent
two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt.
of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this
appeal doubted the correctness of the view taken in Dr. Suresh
Gupta's case and vide order dated 9.9.2004 expressed the opinion
that the matter called for consideration by a Bench of three Judges.
This is how the case has come up for hearing before this Bench.

In Dr. Suresh Gupta's case, the patient, a young man with no
history of any heart ailment, was subjected to an operation performed
by Dr. Suresh Gupta for nasal deformity. The operation was neither
complicated nor serious. The patient died. On investigation, the cause
of death was found to be "not introducing a cuffed endotracheal tube
of proper size as to prevent aspiration of blood from the wound in the
respiratory passage". The Bench formed an opinion that this act
attributed to the doctor, even if accepted to be true, could be
described as an act of negligence as there was lack of due care and
precaution. But, the Court categorically held _ "for this act of
negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly
negligent as to make him criminally liable".

    The referring Bench in its order dated 9.9.2004 has assigned
two reasons for their disagreement with the view taken in Dr. Suresh
Gupta's case which are as under:-

(1)    Negligence or recklessness being 'gross' is not a requirement of
Section 304A of IPC and if the view taken in Dr. Suresh
Gupta's case is to be followed then the word 'gross' shall have
to be read into Section 304A IPC for fixing criminal liability on a
doctor. Such an approach cannot be countenanced.

(2)     Different standards cannot be applied to doctors and others. In
all cases it has to be seen whether the impugned act was rash
or negligent. By carrying out a separate treatment for doctors
by introducing degree of rashness or negligence, violence would
be done to the plain and unambiguous language of section
304A. If by adducing evidence it is proved that there was no
rashness or negligence involved, the trial court dealing with the
matter shall decide appropriately. But a doctor cannot be
placed at a different pedestal for finding out whether rashness
or negligence was involved.

We have heard the learned counsel for the appellant, the
respondent-State and the respondent complainant. As the question of
medical negligence arose for consideration, we thought it fit to issue
notice to Medical Council of India to assist the Court at the time of
hearing which it has done. In addition, a registered society _ 'People
for Better Treatment', Kolkata; Delhi Medical Council, Delhi Medical
Association and Indian Medical Association sought for intervention at
the hearing as the issue arising for decision is of vital significance for
the medical profession. They too have been heard. Mainly, the
submissions made by the learned counsel for the parties and the
intervenors have centred around two issues : (i) Is there a difference
in civil and criminal law on the concept of negligence?; and (ii)
whether a different standard is applicable for recording a finding of
negligence when a professional, in particular, a doctor is to be held
guilty of negligence?

    With the awareness in the society and the people in general
gathering consciousness about their rights, actions for damages in tort
are on the increase. Not only civil suits are filed, the availability of a
forum for grievance redressal under the Consumer Protection Act,
1986 having jurisdiction to hear complaints against professionals for
'deficiency in service', which expression is very widely defined in the
Act, has given rise to a large number of complaints against
professionals, in particular against doctors, being filed by the persons
feeling aggrieved.    Criminal complaints are being filed against doctors
alleging commission of offences punishable under Section 304A or
Sections 336/337/338 of the IPC alleging rashness or negligence on
the part of the doctors resulting in loss of life or injury (of varying
degree) to the patient. The present one is such a case. The order of
reference has enabled us to examine the concept of 'negligence', in
particular 'professional negligence', and as to when and how it does
give rise to an action under the criminal law. We propose to deal with
the issues in the interests of settling the law.

Negligence as a tort
    The jurisprudential concept of negligence defies any precise
definition. Eminent jurists and leading judgments have assigned
various meanings to negligence. The concept as has been acceptable
to Indian jurisprudential thought is well-stated in the Law of Torts,
Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.
Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a
duty caused by the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and
reasonable man would not do. Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by
which neglect the plaintiff has suffered injury to his person or
property. _______ The definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former's
conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only
when damage occurs; for, damage is a necessary ingredient of this
tort."

    According to Charlesworth & Percy on Negligence (Tenth Edition,
2001), in current forensic speech, negligence has three meanings.
They are: (i) a state of mind, in which it is opposed to intention; (ii)
careless conduct; and (iii) the breach of duty to take care that is
imposed by either common or statute law. All three meanings are
applicable in different circumstances but any one of them does not
necessarily exclude the other meanings. (Para 1.01) The essential
components of negligence, as recognized, are three: "duty", "breach"
and "resulting damage", that is to say:-
1.    the existence of a duty to take care, which is
owed by the defendant to the complainant;

2.    the failure to attain that standard of care,
prescribed by the law, thereby committing a
breach of such duty; and

3.    damage, which is both causally connected
with such breach and recognized by the law,
has been suffered by the complainant. (Para
1.23)

If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24)

Negligence __ as a tort and as a crime
    The term 'negligence' is used for the purpose of fastening the
defendant with liability under the Civil Law and, at times, under the
Criminal Law. It is contended on behalf of the respondents that in
both the jurisdictions, negligence is negligence, and jurisprudentially
no distinction can be drawn between negligence under civil law and
negligence under criminal law. The submission so made cannot be
countenanced inasmuch as it is based upon a total departure from the
established terrain of thought running ever since the beginning of the
emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is
determinative of the extent of liability in tort; but in criminal law it is
not the amount of damages but the amount and degree of negligence
that is determinative of liability. To fasten liability in Criminal Law, the
degree of negligence has to be higher than that of negligence enough
to fasten liability for damages in Civil Law. The essential ingredient of
mens rea cannot be excluded from consideration when the charge in a
criminal court consists of criminal negligence. In R. v. Lawrence,
[1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and
the other Law Lords agreed with him. He reiterated his opinion in R.
v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of
recklessness as constituting mens rea in criminal law. His Lordship
warned against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of
liability as being "subjective" or "objective", and said "Recklessness on
the part of the doer of an act does presuppose that there is something
in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable
of causing the kind of serious harmful consequences that the section
which creates the offence was intended to prevent, and that the risk of
those harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is acting
'recklessly' if, before doing the act, he either fails to give any thought
to the possibility of there being any such risk or, having recognized
that there was such risk, he nevertheless goes on to do it."

    The moral culpability of recklessness is not located in a desire to
cause harm. It resides in the proximity of the reckless state of mind
to the state of mind present when there is an intention to cause harm.
There is, in other words, a disregard for the possible consequences.
The consequences entailed in the risk may not be wanted, and indeed
the actor may hope that they do not occur, but this hope nevertheless
fails to inhibit the taking of the risk. Certain types of violation, called
optimizing violations, may be motivated by thrill-seeking. These are
clearly reckless.

    In order to hold the existence of criminal rashness or criminal
negligence it shall have to be found out that the rashness was of such
a degree as to amount to taking a hazard knowing that the hazard was
of such a degree that injury was most likely imminent. The element of
criminality is introduced by the accused having run the risk of doing
such an act with recklessness and indifference to the consequences.
Lord Atkin in his speech in Andrews v. Director of Public
Prosecutions, [1937] A.C. 576, stated, "Simple lack of care _ such
as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is
established." Thus, a clear distinction exists between "simple lack of
care" incurring civil liability and "very high degree of negligence" which
is required in criminal cases. Lord Porter said in his speech in the
same case ___ "A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to
create civil liability. (Charlesworth & Percy, ibid, Para 1.13)

    The fore-quoted statement of law in Andrews has been noted
with approval by this Court in Syad Akbar v. State of Karnataka
(1980) 1 SCC 30. The Supreme Court has dealt with and pointed out
with reasons the distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there is a marked
difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to
the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as
convinces the mind of the Court, as a reasonable man, beyond all
reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error
of judgment.

    Law laid down by Straight, J. in the case Reg v. Idu Beg
(1881) 3 All. 776, has been held good in cases and noticed in
Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J.
423 ? a three-Judge Bench decision of this Court. It has been held
that while negligence is an omission to do something which a
reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which
having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have
adopted.

    In our opinion, the factor of grossness or degree does assume
significance while drawing distinction in negligence actionable in tort
and negligence punishable as a crime. To be latter, the negligence has
to be gross or of a very high degree.

Negligence by professionals
    In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task
which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task. Any reasonable
man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to
possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer
does not tell his client that the client shall win the case in all
circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that
the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch
of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be exercising his
skill with reasonable competence. This is all what the person
approaching the professional can expect. Judged by this standard, a
professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence
in the given case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been negligent or
not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary for every
professional to possess the highest level of expertise in that branch
which he practices. In Michael Hyde and Associates v. J.D.
Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that
where a profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the defendant is to
be judged by the lowest standard that would be regarded as
acceptable. (Charlesworth & Percy, ibid, Para 8.03)

    Oft'quoted passage defining negligence by professionals,
generally and not necessarily confined to doctors, is to be found in the
opinion of McNair J. in Bolam v. Friern Hospital Management
Committee, [1957] 1 W.L.R. 582, 586 in the following words:
    "Where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill .
. . A man need not possess the highest expert skill;
it is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary
competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02)

    The water of Bolam test has ever since flown and passed under
several bridges, having been cited and dealt with in several judicial
pronouncements, one after the other and has continued to be well
received by every shore it has touched as neat, clean and well-
condensed one. After a review of various authorities Bingham L.J. in
his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79
summarised the Bolam test in the following words:-
    "From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his
profession. He should not lag behind other
ordinary assiduous and intelligent members of his
profession in knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations on
his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members of
the profession would be alert. He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would bring,
but need bring no more. The standard is that of
the reasonable average. The law does not require
of a professional man that he be a paragon
combining the qualities of polymath and prophet."
(Charlesworth & Percy, ibid, Para 8.04)

    The degree of skill and care required by a medical practitioner is
so stated in Halsbury's Laws of England (Fourth Edition, Vol.30,
Para 35):-
    "The practitioner must bring to his task a
reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and
competence, judged in the light of the particular
circumstances of each case, is what the law
requires, and a person is not liable in negligence
because someone else of greater skill and
knowledge would have prescribed different
treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible
body of medical men skilled in that particular art,
even though a body of adverse opinion also existed
among medical men.

    Deviation from normal practice is not
necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the
defendant has not adopted it; and (3) that the
course in fact adopted is one no professional man
of ordinary skill would have taken had he been
acting with ordinary care."

Abovesaid three tests have also been stated as determinative of
negligence in professional practice by Charlesworth & Percy in their
celebrated work on Negligence (ibid, para 8.110)

In the opinion of Lord Denning, as expressed in Hucks v. Cole,
[1968] 118 New LJ 469, a medical practitioner was not to be held
liable simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. A medical
practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.

    The decision of House of Lords in Maynard v. West Midlands
Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench
consisting of five Law Lords has been accepted as having settled the
law on the point by holding that it is not enough to show that there is
a body of competent professional opinion which considers that decision
of the defendant professional was a wrong decision, if there also exists
a body of professional opinion, equally competent, which supports the
decision as reasonable in the circumstances. It is not enough to show
that subsequent events show that the operation need never have been
performed, if at the time the decision to operate was taken, it was
reasonable, in the sense that a responsible body of medical opinion
would have accepted it as proper. Lord Scarman who recorded the
leading speech with which other four Lords agreed quoted the
following words of Lord President (Clyde) in Hunter v. Hanley 1955
SLT 213 at 217, observing that the words cannot be bettered _ "In the
realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men_The
true test for establishing negligence in diagnosis or treatment on the
part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care_". Lord Scarman added _ "a doctor who professes to
exercise a special skill must exercise the ordinary skill of his speciality.
Differences of opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one answer
exclusive of all others to problems of professional judgment. A court
may prefer one body of opinion to the other, but that is no basis for a
conclusion of negligence." His Lordship further added "that a judge's
'preference' for one body of distinguished professional opinion to
another also professionally distinguished is not sufficient to establish
negligence in a practitioner whose actions have received the seal of
approval of those whose opinions, truthfully expressed, honestly held,
were not preferred."

    The classical statement of law in Bolam's case has been widely
accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in particular.   It
has been invariably cited with approval before Courts in India and
applied to as touchstone to test the pleas of medical negligence. In
tort, it is enough for the defendant to show that the standard of care
and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The
fact that a defendant charged with negligence acted in accord with the
general and approved practice is enough to clear him of the charge.
Two things are pertinent to be noted. Firstly, the standard of care,
when assessing the practice as adopted, is judged in the light of
knowledge available at the time (of the incident), and not at the date
of trial. Secondly, when the charge of negligence arises out of failure
to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time on which it
is suggested as should have been used.

    A mere deviation from normal professional practice is not
necessarily evidence of negligence. Let it also be noted that a mere
accident is not evidence of negligence. So also an error of judgment
on the part of a professional is not negligence per se. Higher the
acuteness in emergency and higher the complication, more are the
chances of error of judgment. At times, the professional is confronted
with making a choice between the devil and the deep sea and he has
to choose the lesser evil. The medical professional is often called upon
to adopt a procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case. The usual
practice prevalent nowadays is to obtain the consent of the patient or
of the person incharge of the patient if the patient is not be in a
position to give consent before adopting a given procedure. So long
as it can be found that the procedure which was in fact adopted was
one which was acceptable to medical science as on that date, the
medical practitioner cannot be held negligent merely because he chose
to follow one procedure and not another and the result was a failure.

    No sensible professional would intentionally commit an act or
omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake. A single failure may
cost him dear in his career. Even in civil jurisdiction, the rule of res
ipsa loquitur is not of universal application and has to be applied with
extreme care and caution to the cases of professional negligence and
in particular that of the doctors. Else it would be counter productive.
Simply because a patient has not favourably responded to a treatment
given by a physician or a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence which in reality belongs to
the law of torts. Inference as to negligence may be drawn from
proved circumstances by applying the rule if the cause of the accident
is unknown and no reasonable explanation as to the cause is coming
forth from the defendant. In criminal proceedings, the burden of
proving negligence as an essential ingredient of the offence lies on the
prosecution. Such ingredient cannot be said to have been proved or
made out by resorting to the said rule (See Syad Kabar v. State of
Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in
Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court
has observed that there may be a case where the proved facts would
themselves speak of sharing of common intention and while making
such observation one of the learned judges constituting the Bench has
in his concurring opinion merely stated "res ipsa loquitur'. Nowhere it
has been stated that the rule has applicability in a criminal case and an
inference as to an essential ingredient of an offence can be found
proved by resorting to the said rule. In our opinion, a case under
Section 304A IPC cannot be decided solely by applying the rule of res
ipsa loquitur.

A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly make out
a case of negligence before a medical practitioner is charged with or
proceeded against criminally. A surgeon with shaky hands under fear
of legal action cannot perform a successful operation and a quivering
physician cannot administer the end-dose of medicine to his patient.

    If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason_
whether attributable to himself or not, neither a surgeon can
successfully wield his life-saving scalper to perform an essential
surgery, nor can a physician successfully administer the life-saving
dose of medicine. Discretion being better part of valour, a medical
professional would feel better advised to leave a terminal patient to his
own fate in the case of emergency where the chance of success may
be 10% (or so), rather than taking the risk of making a last ditch
effort towards saving the subject and facing a criminal prosecution if
his effort fails. Such timidity forced upon a doctor would be a
disservice to the society.

    The purpose of holding a professional liable for his act or
omission, if negligent, is to make the life safer and to eliminate the
possibility of recurrence of negligence in future. Human body and
medical science _ both are too complex to be easily understood. To
hold in favour of existence of negligence, associated with the action or
inaction of a medical professional, requires an in-depth understanding
of the working of a professional as also the nature of the job and of
errors committed by chance, which do not necessarily involve the
element of culpability.

    The subject of negligence in the context of medical profession
necessarily calls for treatment with a difference. Several relevant
considerations in this regard are found mentioned by Alan Merry and
Alexander McCall Smith in their work "Errors, Medicine and the Law"
(Cambridge University Press, 2001). There is a marked tendency to
look for a human actor to blame for an untoward event _ a tendency
which is closely linked with the desire to punish. Things have gone
wrong and, therefore, somebody must be found to answer for it. To
draw a distinction between the blameworthy and the blameless, the
notion of mens rea has to be elaborately understood. An empirical
study would reveal that the background to a mishap is frequently far
more complex than may generally be assumed. It can be
demonstrated that actual blame for the outcome has to be attributed
with great caution. For a medical accident or failure, the responsibility
may lie with the medical practitioner and equally it may not. The
inadequacies of the system, the specific circumstances of the case, the
nature of human psychology itself and sheer chance may have
combined to produce a result in which the doctor's contribution is
either relatively or completely blameless. Human body and its working
is nothing less than a highly complex machine. Coupled with the
complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the
doctor, cannot be ruled out. One may have notions of best or ideal
practice which are different from the reality of how medical practice is
carried on or how in real life the doctor functions. The factors of
pressing need and limited resources cannot be ruled out from
consideration. Dealing with a case of medical negligence needs a
deeper understanding of the practical side of medicine.

    At least three weighty considerations can be pointed out which
any forum trying the issue of medical negligence in any jurisdiction
must keep in mind. These are: (i) that legal and disciplinary
procedures should be properly founded on firm, moral and scientific
grounds; (ii) that patients will be better served if the real causes of
harm are properly identified and appropriately acted upon; and (iii)
that many incidents involve a contribution from more than one person,
and the tendency is to blame the last identifiable element in the chain
of causation _ the person holding the 'smoking gun'.

    Accident during the course of medical or surgical treatment has
a wider meaning. Ordinarily, an accident means an unintended and
unforeseen injurious occurrence; something that does not occur in the
usual course of events or that could not be reasonably anticipated
(See, Black's Law Dictionary, 7th Edition). Care has to be taken to see
that the result of an accident which is exculpatory may not persuade
the human mind to confuse it with the consequence of negligence.

Medical Professionals in Criminal Law
    The criminal law has invariably placed the medical professionals
on a pedestal different from ordinary mortals. The Indian Penal Code
enacted as far back as in the year 1860 sets out a few vocal examples.
Section 88 in the Chapter on General Exceptions provides exemption
for acts not intended to cause death, done by consent in good faith for
person's benefit. Section 92 provides for exemption for acts done in
good faith for the benefit of a person without his consent though the
acts cause harm to a person and that person has not consented to
suffer such harm. There are four exceptions listed in the Section
which is not necessary in this context to deal with. Section 93 saves
from criminality certain communications made in good faith. To these
provisions are appended the following illustrations:-

Section 88
A, a surgeon, knowing that a particular operation
is likely to cause the death of Z, who suffers under
a painful complaint, but not intending to cause Z's
death and intending in good faith, Z's benefit,
performs that operation on Z, with Z's consent. A
has committed no offence.

Section 92
Z is thrown from his horse, and is insensible. A, a
surgeon, finds that Z requires to be trepanned. A,
not intending Z's death, but in good faith, for Z's
benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no
offence.

    A, a surgeon, sees a child suffer an accident
which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply
to the child's guardian. A performs the operation in
spite of the entreaties of the child, intending, in
good faith, the child's benefit.   A has committed
no offence.

Section 93
A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient
dies in consequence of the shock. A has committed
no offence, though he knew it to be likely that the
communication might cause the patient's death.

     It is interesting to note what Lord Macaulay had himself to say
about Indian Penal Code. We are inclined to quote a few excerpts from
his speech to the extent relevant for our purpose from "Speeches and
Poems with the Report and Notes on the Indian Penal Code" by Lord
Macaulay (Houghton, Mifflin and Company, published in 1874).

"Under the provisions of our Code, this case would
be very differently dealt with according to
circumstances. If A. kills Z. by administering
abortives to her, with the knowledge that those
abortives are likely to cause her death, he is guilty
of voluntary culpable homicide, which will be
voluntary culpable homicide by consent, if Z.
agreed to run the risk, and murder if Z. did not so
agree. If A causes miscarriage to Z., not intending
to cause Z.'s death, nor thinking it likely that he
shall cause Z.'s death, but so rashly or negligently
as to cause her death, A. is guilty of culpable
homicide not voluntary, and will be liable to the
punishment provided for the causing of
miscarriage, increased by imprisonment for a term
not exceeding two years. Lastly, if A took such
precautions that there was no reasonable
probability that Z.'s death would be caused, and if
the medicine were rendered deadly by some
accident which no human sagacity could have
foreseen, or by some peculiarity in Z.'s constitution
such as there was no ground whatever to expect,
A. will be liable to no punishment whatever on
account of her death, but will of course be liable to
the punishment provided for causing miscarriage.

    It may be proper for us to offer some arguments in
defence of this part of the Code.

    It will be admitted that when an act is in itself
innocent, to punish the person who does it because
bad consequences, which no human wisdom could
have foreseen, have followed from it, would be in
the highest degree barbarous and absurd." (P.419)

    "To punish as a murderer every man who, while
committing a heinous offence, causes death by
pure misadventure, is a course which evidently
adds nothing to the security of human life. No man
can so conduct himself as to make it absolutely
certain that he shall not be so unfortunate as to
cause the death of a fellow-creature. The utmost
that he can do is to abstain from every thing which
is at all likely to cause death. No fear of
punishment can make him do more than this; and
therefore, to punish a man who has done this can
add nothing to the security of human life. The only
good effect which such punishment can produce
will be to deter people from committing any of
those offences which turn into murders what are in
themselves mere accidents. It is in fact an addition
to the punishment of those offences, and it is an
addition made in the very worst way." (p.421)

    "When a person engaged in the commission of an
offence causes death by rashness or negligence,
but without either intending to cause death, or
thinking it likely that he shall cause death, we
propose that he shall be liable to the punishment of
the offence which he was engaged in committing,
superadded to the ordinary punishment of
involuntary culpable homicide.

    The arguments and illustrations which we have
employed for the purpose of showing that the
involuntary causing of death, without either
rashness or negligence, ought, under no
circumstances, to be punished at all, will, with
some modifications, which will readily suggest
themselves, serve to show that the involuntary
causing of death by rashness or negligence, though
always punishable, ought, under no circumstances
to be punished as murder."                        (P.422)

The following statement of law on criminal negligence by
reference to surgeons, doctors etc. and unskillful treatment contained
in Roscoe's Law of Evidence (Fifteenth Edition) is classic:
"Where a person, acting as a medical man, &c.,
whether licensed or unlicensed, is so negligent in
his treatment of a patient that death results, it is
manslaughter if the negligence was so great as to
amount to a crime, and whether or not there was
such a degree of negligence is a question in each
case for the jury. "In explaining to juries the test
which they should apply to determine whether the
negligence in the particular case amounted or did
not amount to a crime, judges have used many
epithets, such as 'culpable,' 'criminal', 'gross',
'wicked', 'clear', 'complete.' But whatever epithet
be used and whether an epithet be used or not, in
order to establish criminal liability the facts must
be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere
matter of compensation between subjects and
showed such disregard for the life and safety of
others as to amount to a crime against the State
and conduct deserving punishment." (p. 848-849)
       xxx                  xxx                   xxx

"whether he be licensed or unlicensed, if he display
gross ignorance, or gross inattention, or gross
rashness, in his treatment, he is criminally
responsible. Where a person who, though not
educated as an accoucheur, had been in the habit
of acting as a man-midwife, and had unskilfully
treated a woman who died in childbirth, was
indicted for the murder, L. Ellenborough said that
there was no evidence of murder, but the jury
might convict of man-slaughter. "To substantiate
that charge the prisoner must have been guilty of
criminal misconduct, arising either from the
grossest ignorance or the [most?] criminal
inattention. One or other of these is necessary to
make him guilty of that criminal negligence and
misconduct which is essential to make out a case of
manslaughter."                     (p.849)

A review of Indian decisions on criminal negligence
    We are inclined to, and we must - as duty bound, take note of
some of the relevant decisions of the Privy Council and of this Court.
We would like to preface this discussion with the law laid down by the
Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A
duly qualified medical practitioner gave to his patient the injection of
Sobita which consisted of sodium bismuth tartrate as given in the
British Pharmacopoea. However, what was administered was an
overdose of Sobita. The patient died. The doctor was accused of
manslaughter, reckless and negligent act. He was convicted. The
matter reached in appeal before the House of Lords. Their Lordships
quashed the conviction. On a review of judicial opinion and an
illuminating discussion on the points which are also relevant before us,
what their Lordships have held can be summed up as under:-

(i)    That a doctor is not criminally responsible for a
patient's death unless his negligence or
incompetence went beyond a mere matter of
compensation between subjects and showed such
disregard for life and safety of others as to amount
to a crime against the State.;

(ii)    That the degree of negligence required is that it
should be gross, and that neither a jury nor a court
can transform negligence of a lesser degree into
gross negligence merely by giving it that
appellation. ____ There is a difference in kind
between the negligence which gives a right to
compensation and the negligence which is a crime.

(iii)    It is impossible to define culpable or
criminal negligence, and it is not possible to make
the distinction between actionable negligence and
criminal negligence intelligible, except by means of
illustrations drawn from actual judicial opinion.
__.. The most favourable view of the conduct of an
accused medical man has to be taken, for it would
be most fatal to the efficiency of the medical
profession if no one could administer medicine
without a halter round his neck."
(emphasis supplied)

Their Lordships refused to accept the view that criminal negligence
was proved merely because a number of persons were made gravely ill
after receiving an injection of Sobita from the appellant coupled with a
finding that a high degree of care was not exercised. Their Lordships
also refused to agree with the thought that merely because too strong
a mixture was dispensed once and a number of persons were made
gravely ill, a criminal degree of negligence was proved.

    The question of degree has always been considered as relevant
to a distinction between negligence in civil law and negligence in
criminal law. In Kurban Hussein Mohamedalli Rangawalla v.
State of Maharashtra (1965) 2 SCR 622, while dealing with Section
304A of IPC, the following statement of law by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with
approval:-
"To impose criminal liability under Section 304-A,
Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and
negligent act of the accused, and that act must be
the proximate and efficient cause without the
intervention of another's negligence. It must be
the causa causans; it is not enough that it may
have been the causa sine qua non."

    K.N. Wanchoo, J. (as he then was), speaking for the Court,
observed that the abovesaid view of the law has been generally
followed by High Courts in India and was the correct view to take of
the meaning of Section 304A. The same view has been reiterated in
Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

    In Juggankhan v. The State of Madhya Pradesh (1965) 1
SCR 14, the accused, a registered Homoeopath, administered 24 drops
of stramonium and a leaf of dhatura to the patient suffering from
guinea worm. The accused had not studied the effect of such
substances being administered to a human being. The poisonous
contents of the leaf of dhatura, were not satisfactorily established by
the prosecution. This Court exonerated the accused of the charge
under Section 302 IPC.   However, on a finding that stramonium and
dhatura leaves are poisonous and in no system of medicine, except
perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea
worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and
negligent act. It would be seen that the profession of a Homoeopath
which the accused claimed to profess did not permit use of the
substance administered to the patient. The accused had no knowledge
of the effect of such substance being administered and yet he did so.
In this background, the inference of the accused being guilty of rash
and negligent act was drawn against him. In our opinion, the principle
which emerges is that a doctor who administers a medicine known to
or used in a particular branch of medical profession impliedly declares
that he has knowledge of that branch of science and if he does not, in
fact, possess that knowledge, he is prima facie acting with rashness or
negligence.

    Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole
and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act,
1855. It does not make a reference to any other decided case. The
duties which a doctor owes to his patients came up for consideration.
The Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose. Such a person
when consulted by a patient owes him certain duties, viz., a duty of
care in deciding whether to undertake the case, a duty of care in
deciding what treatment to be given or a duty of care in the
administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient. The practitioner
must bring to his task a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care. Neither the very highest
nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires. The
doctor no doubt has a discretion in choosing treatment which he
proposes to give to the patient and such discretion is relatively ampler
in cases of emergency. In this case, the death of patient was caused
due to shock resulting from reduction of the fracture attempted by
doctor without taking the elementary caution of giving anaesthetic to
the patient. The doctor was held guilty of negligence and liability for
damages in civil law. We hasten to add that criminal negligence or
liability under criminal law was not an issue before the Court _as it
did not arise and hence was not considered.

    In the year 1996, there are 3 reported decisions available.
Indian Medical Association v. V.P. Shantha and Ors. (1995) 6
SCC 651 is a three-Judge Bench decision.     The principal issue which
arose for decision by the Court was whether a medical practitioner
renders 'service' and can be proceeded against for 'deficiency in
service' before a forum under the Consumer Protection Act, 1986. The
Court dealt with how a 'profession' differs from an 'occupation'
especially in the context of performance of duties and hence the
occurrence of negligence. The Court noticed that medical professionals
do not enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence. However, in the
observation made in the context of determining professional liability
as distinguished from occupational liability, the Court has referred to
authorities, in particular, Jackson & Powell and have so stated the
principles, partly quoted from the authorities :-

"In the matter of professional liability professions
differ from occupations for the reason that
professions operate in spheres where success
cannot be achieved in every case and very often
success or failure depends upon factors beyond the
professional man's control. In devising a rational
approach to professional liability which must
provide proper protection to the consumer while
allowing for the factors mentioned above, the
approach of the Courts is to require that
professional men should possess a certain
minimum degree of competence and that they
should exercise reasonable care in the discharge of
their duties. In general, a professional man owes
to his client a duty in tort as well as in contract to
exercise reasonable care in giving advice or
performing services. (See : Jackson & Powell on
Professional Negligence, 3rd Edn., paras 1-04, 1-05,
and 1-56)."

    In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC
332 a doctor registered as medical practitioner and entitled to practice
in Homoeopathy only, prescribed an allopathic medicine to the patient.
The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband on
the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field of
any other system of medicine and since he trespassed into a
prohibited field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law. Dr. Laxman Balkrishna Joshi's case (supra)
was followed. Vide para 16, the test for determining whether there
was negligence on the part of a medical practitioner as laid down in
Bolam's case (supra) was cited and approved.

    In Achutrao Haribhau Khodwa and Ors. v. State of
Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in
the very nature of medical profession, skills differs from doctor to
doctor and more than one alternative course of treatment are
available, all admissible. Negligence cannot be attributed to a doctor
so long as he is performing his duties to the best of his ability and with
due care and caution. Merely because the doctor chooses one course
of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the
medical profession. It was a case where a mop was left inside the lady
patient's abdomen during an operation. Peritonitis developed which
led to a second surgery being performed on her, but she could not
survive. Liability for negligence was fastened on the surgeon because
no valid explanation was forthcoming for the mop having been left
inside the abdomen of the lady. The doctrine of res ipsa loquitur was
held applicable 'in a case like this'.

    M/s Spring Meadows Hospital and Anr. v. Harjol
Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is
again a case of liability for negligence by a medical professional in civil
law. It was held that an error of judgment is not necessarily
negligence. The Court referred to the decision in Whitehouse &
Jorden, [1981] 1 ALL ER 267, and cited with approval the following
statement of law contained in the opinion of Lord Fraser determining
when an error of judgment can be termed as negligence:-

"The true position is that an error of
judgment may, or may not, be negligent, it
depends on the nature of the error. If it is
one that would not have been made by a
reasonably competent professional man
professing to have the standard and type of
skill that the defendant holds himself out as
having, and acting with ordinary care, then it
is negligence. If, on the other hand, it is an
error that such a man, acting with ordinary
care, might have made, then it is not
negligence."

    In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC
182 also Bolam's test has been approved. This case too refers to
liability for compensation under civil law for failure of sterilisation
operation performed by a surgeon. We are not dealing with that
situation in the case before us and, therefore, leave it to be dealt
within an appropriate case.

Before we embark upon summing up our conclusions on the
several issues of law which we have dealt with hereinabove, we are
inclined to quote some of the conclusions arrived at by the learned
authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at
the end of the book in the chapter titled _ 'Conclusion') highlighting
the link between moral fault, blame and justice in reference to medical
profession and negligence. These are of significance and relevant to
the issues before us. Hence we quote :-

(i)    The social efficacy of blame and related sanctions in particular
cases of deliberate wrongdoings may be a matter of dispute, but
their necessity _ in principle _ from a moral point of view, has
been accepted. Distasteful as punishment may be, the social,
and possibly moral, need to punish people for wrongdoing,
occasionally in a severe fashion, cannot be escaped. A society
in which blame is overemphasized may become paralysed. This
is not only because such a society will inevitably be backward-
looking, but also because fear of blame inhibits the uncluttered
exercise of judgment in relations between persons. If we are
constantly concerned about whether our actions will be the
subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of
suspicious formality between persons is inevitable. (ibid, pp.
242-243)

(ii)    Culpability may attach to the consequence of an error in
circumstances where substandard antecedent conduct has been
deliberate, and has contributed to the generation of the error or
to its outcome. In case of errors, the only failure is a failure
defined in terms of the normative standard of what should have
been done. There is a tendency to confuse the reasonable
person with the error-free person. While nobody can avoid
errors on the basis of simply choosing not to make them, people
can choose not to commit violations. A violation is culpable.
(ibid, p. 245).

(iii)    Before the court faced with deciding the cases of professional
negligence there are two sets of interests which are at stake :
the interests of the plaintiff and the interests of the defendant.
A correct balance of these two sets of interests should ensure
that tort liability is restricted to those cases where there is a
real failure to behave as a reasonably competent practitioner
would have behaved. An inappropriate raising of the standard of
care threatens this balance. (ibid, p.246). A consequence of
encouraging litigation for loss is to persuade the public that all
loss encountered in a medical context is the result of the failure
of somebody in the system to provide the level of care to which
the patient is entitled. The effect of this on the doctor-patient
relationship is distorting and will not be to the benefit of the
patient in the long run. It is also unjustified to impose on those
engaged in medical treatment an undue degree of additional
stress and anxiety in the conduct of their profession. Equally, it
would be wrong to impose such stress and anxiety on any other
person performing a demanding function in society. (ibid,
p.247). While expectations from the professionals must be
realistic and the expected standards attainable, this implies
recognition of the nature of ordinary human error and human
limitations in the performance of complex tasks. (ibid, p. 247).

(iv)    Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy
state of mind. Recklessness and deliberate wrongdoing, are
morally blameworthy, but any conduct falling short of that
should not be the subject of criminal liability. Common-law
systems have traditionally only made negligence the subject of
criminal sanction when the level of negligence has been high _ a
standard traditionally described as gross negligence. In fact,
negligence at that level is likely to be indistinguishable from
recklessness. (ibid, p.248).

(v)    Blame is a powerful weapon. Its inappropriate use distorts
tolerant and constructive relations between people.
Distinguishing between (a) accidents which are life's misfortune
for which   nobody is   morally responsible, (b) wrongs
amounting to culpable conduct and constituting grounds for
compensation, and (c) those (i.e. wrongs) calling for
punishment on account of being gross or of a very high degree
requires and calls for careful, morally sensitive and scientifically
informed analysis; else there would be injustice to the larger
interest of the society. (ibid, p. 248).

Indiscriminate prosecution of medical professionals for criminal
negligence is counter-productive and does no service or good to the
society.

Conclusions summed up
         We sum up our conclusions as under:-

(1)    Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.
Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: 'duty',
'breach' and 'resulting damage'.

(2)    Negligence in the context of medical profession necessarily calls
for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational
negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. When it comes to the
failure of taking precautions what has to be seen is whether
those precautions were taken which the ordinary experience of
men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while
assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.

(3)    A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether
the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.

(4)     The test for determining medical negligence as laid down in
Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its
applicability in India.

(5)     The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the
basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it
is settled that in criminal law negligence or recklessness, to be
so held, must be of such a high degree as to be 'gross'. The
expression 'rash or negligent act' as occurring in Section 304A
of the IPC has to be read as qualified by the word 'grossly'.

(7)    To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a nature that the
injury which resulted was most likely imminent.

(8)     Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in
determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa loquitur
has, if at all, a limited application in trial on a charge of criminal
negligence.

In view of the principles laid down hereinabove and the
preceding discussion, we agree with the principles of law laid down in
Dr. Suresh Gupta's case (2004) 6 SCC 422 and re-affirm the same.
Ex abundanti cautela, we clarify that what we are affirming are the
legal principles laid down and the law as stated in Dr. Suresh Gupta's
case. We may not be understood as having expressed any opinion on
the question whether on the facts of that case the accused could or
could not have been held guilty of criminal negligence as that question
is not before us. We also approve of the passage from Errors,
Medicine and the Law by Alan Merry and Alexander McCall Smith which
has been cited with approval in Dr. Suresh Gupta's case (noted vide
para 27 of the report).

Guidelines _ re: prosecuting medical professionals
    As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal prosecution are
on an increase. Sometimes such prosecutions are filed by private
complainants and sometimes by police on an FIR being lodged and
cognizance taken. The investigating officer and the private
complainant cannot always be supposed to have knowledge of
medical science so as to determine whether the act of the accused
medical professional amounts to rash or negligent act within the
domain of criminal law under Section 304-A of IPC. The criminal
process once initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to him. At the end
he may be exonerated by acquittal or discharge but the loss which he
has suffered in his reputation cannot be compensated by any
standards.

     We may not be understood as holding that doctors can never be
prosecuted for an offence of which rashness or negligence is an
essential ingredient. All that we are doing is to emphasize the need
for care and caution in the interest of society; for, the service which
the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Many a complainant prefers recourse
to criminal process as a tool for pressurizing the medical professional
for extracting uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.

     Statutory Rules or Executive Instructions incorporating certain
guidelines need to be framed and issued by the Government of India
and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain
guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence
is an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the Court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably from a
doctor in government service qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying Bolam's test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may not be
arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the
arrest may be withheld.

Case at hand
Reverting back to the facts of the case before us, we are
satisfied that all the averments made in the complaint, even if held to
be proved, do not make out a case of criminal rashness or negligence
on the part of the accused appellant. It is not the case of the
complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat. It is a case of non-
availability of oxygen cylinder either because of the hospital having
failed to keep available a gas cylinder or because of the gas cylinder
being found empty. Then, probably the hospital may be liable in civil
law (or may not be _ we express no opinion thereon) but the accused
appellant cannot be proceeded against under Section 304A IPC on the
parameters of Bolam's test.
Result

    The appeals are allowed. The prosecution of the accused
appellant under Section 304A/34 IPC is quashed.

    All the interlocutory applications be treated as disposed of.

Judgment between "No innocent man is punished". & "A guilty man does not escape"

2009-05-12T13:11:00.000-07:00

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1502 OF 2007

Narendra V/s State of Karnataka

JUDGMENT
By Dr. ARIJIT PASAYAT, J.

1.         Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court setting aside the judgment of acquittal recorded by learned Third Additional Sessions Judge, Bangalore. Learned Sessions Judge have found the accused appellant guilty of offence punishable under Section 498(A) and 302 of the Indian Penal Code, 1860 (In short the `IPC').

2.         Background facts leading to the prosecution of the appellant are as follows: On 13/14.2.1994 Smt. Mythradevi (hereinafter referred to as the `deceased') was done to death in the bedroom of the matrimonial home of the deceased. According to 'the investigation reports by about 6 a.m. on 14.2.1994 the inmates of the matrimonial home of the deceased learnt about the suspicious death of the deceased. By 9.30 a.m. on the very same day parents of the deceased came to the matrimonial home of the deceased after hearing the news of death of their daughter Mythradevi. Father of the deceased (P.W.6) informed the same to the Jurisdictional Police i.e., Srirampura Police Station as per complaint Ex. P.6. Thereafter, first part of investigation under Section 176 of the Code of Criminal Procedure, 1973 (in short the `Code') proceedings took place at about 2 p.m. on the same date after arrival of Taluk Executive Magistrate Mr. Y.M. Ramachandra Murthy (P.W.1). His inquest report is at Ex. P.1. The investigating agency kept watch over the dead body till the inquest proceedings were conducted, then the dead body was shifted for post mortem to Victoria hospital. As it was late in the night, autopsy was done on the dead body on 15.2.1994 by Dr. S.B. Patil (P.W.2). He gave postmortem report as per Ex. P2 and his opinion is at Ex. P 3. According to him, death was due to asphyxia as a result of compression of neck by human hands. The parents, sisters and other relatives of the deceased were examined. Their statements revealed after marriage between the parties, deceased started living in the matrimonial home,. Parents visited the deceased on 4 to 5 occasions. The last time the parents saw her alive was on 12.2.1994 i.e. about two days prior to her death. During this 12 months period of her stay at matrimonial home, according to kith and kin, deceased was very depressed, unhappy and was even scared to talk to any of kith and kin including the parents, whenever they visited her at matrimonial home. During her visits to the parents house, on enquiry they found the cause of her depression and unhappiness. It was due to improper treatment at the hands of her husband. Her husband was not talking to her. He was not looking after her well and he did not even like her. This was made known to her by coming home at very late hours and not talking to her in the normal way. Last visit of her parents on 12.2.94 to invite the deceased and the respondent for their first wedding anniversary at the parenta1 house of the deceased was rejected by the husband of the deceased. After that, they got the news about her death on 14.2.1994 at about 9 am The accused was not found at home. Therefore a search to apprehend him commenced. According to P.W. 3 on 15.2.1994 he was apprehended and produced before the Police Inspector (P.W. 11) as per the report at Ex.P 4. Prior to that the PSI (PW5) on the basis of the complaint of father of the deceased, registered Crime No. 71/94 for the offence punishable under Section 302 IPC. A spot mahazar was conducted under Ex.P-7, under which M.Os. 6 to 8, blood stained bed sheets, pillow cover and saree of the deceased were seized. During the inquest proceedings personal ornaments of the deceased found on the dead body i.e., M.Os. 1 to 13 including gold bangles and chain came to be seized. Ex. P.8 is the wedding card. Exs. P.9 and 10 are the photographs, which were taken at the time of inquest proceedings to show the exact position of the dead body in the bedroom of the matrimonial home of the deceased. P.W. 7 is the mother of the deceased. P.W. 8 is the elder sister of the deceased, whose statements were also recorded by the Taluk Executive Magistrate. P.W. 9 is the panch witness for the inquest proceedings. P.W. 10 is the witness for spot mahazar (Ex. P.7), but he resiled from the statement given during investigation. P.W.11 is the investigating officer, who took up further investigation from P.W.5 and filed the charge sheet against the appellant-accused. After completion of investigation charge sheet was filed. Trial court found the evidence not to be cogent and directed acquittal. It is to be noted that eleven witnesses were examined by the prosecution and two witnesses by the defence. Accused took the plea that he had gone to another place for purchase of milk on 13.2.1994 in the morning and returned only on 14.2.1994 at about 10.45 am and therefore he was not in any way involved with the crime. The High Court by the impugned order set aside the acquittal and found the appellant guilty of offence punishable under Sections 302 and 498(A) IPC. The High Court found that the analysis made by the trial court was erroneous. The trial court should not have placed reliance on the evidence of DWs 1 & 2 to accept the plea of alibi. Therefore the trial court should not have directed acquittal.

3.         In support of the appeal learned counsel for the appellant submitted that two views are possible. On the evidence on record the trial court had taken a view which is a possible one. Taking into account the limited scope for interference with the judgment of acquittal, the High Court should not have interfered in the matter. Further the alibi should have been accepted. There was no motive, no torture or no demand of dowry. There is no evidence for establishing the accusations either for Section 498A or Section 302 IPC.

4.         Learned counsel for the respondent-State on the other hand supported the judgment.

5.         In the present case there are certain material aspects which were lost sight of by the trial court but have been noted by the High Court. The dead body was detected in the morning of 14.2.1994. Parents of the deceased informed the police and not the inmates. The parents were informed by neighbours and not by the inmates. DW2 has been disbelieved as he was nearly 70 years of age. It was highly improbable that he was in employment as a watchman. The trial court had held that the evidence of PWs.6 to 8 regarding pressing mark on the neck and injuries on the fore arms of the deceased are not corroborated by the medical opinion. This is factually incorrect. The doctor (PW2) had categorically stated that he was of the opinion that death was due to result of compression of the neck, and the post mortem report was accordingly issued. PW6 has stated that second opinion was sought for and then the report was given. The falsity of alibi is an additional link.

6.         In Trimukh Maroti Kirkan v. State of Maharashtra [2006 (10) SCC 681] it has been noted as follows:

"The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003(11) SCC 271].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

7.         That being so there is no merit in this appeal which is accordingly dismissed.

                                                                 ........................................J.
                                                                    (Dr. ARIJIT PASAYAT)

                                                                .........................................J.
                                                                    (Dr. MUKUNDAKAM SHARMA)
New Delhi,
May 05, 2009

Husband's successors are the successors of wife's intested property though, she didn't live them for a day -Supreme Court of India

2009-05-08T05:13:00.000-07:00

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3241 OF 2009
[Arising out of Special Leave Petition (Civil) No. 460 of 2008]

OMPRAKASH & ORS.- V/S - RADHACHARAN & ORS.

JUDGMENT By- S.B. Sinha, J.

1.    Leave granted.

2.    One Smt. Narayani Devi was married to one Dindayal Sharma in the year 1955. She became widow within three months of her marriage. Concededly, she was driven out of her matrimonial home immediately after the death of her husband.     After that she never stayed in her matrimonial home. At her parental home, she was given education. She got an employment. She died intestate on 11.7.1996. She had various bank accounts; she left a huge sum also in her provident fund account.

3.    Ramkishori, mother of Narayani, filed an application for grant of succession certificate in terms of Section 372 of the Indian Succession Act. Respondents herein also filed a similar application. It now stands admitted that all her properties were self acquired.

4.    The question which arose for consideration before the courts below as also before us is as to whether sub-Section (1) of Section 15 of the Hindu Succession Act, 1956 (for short, "the Act") or sub-Section (2) thereof would be applicable in the facts and circumstances of this case.

      Section 15 of the Act reads as under:

             "15 - General rules of succession in the case of
             female Hindus. - (1) The property of a female
             Hindu dying intestate shall devolve according to
             the rules set out in section 16.--
             (a) firstly, upon the sons and daughters
             (including the children of any pre-deceased son or
             daughter) and the husband;
             (b)   secondly, upon the heirs of the husband;
             (c)   thirdly, upon the mother and father;
             (d)   fourthly, upon the heirs of the father; and
             (e)   lastly, upon the heirs of the mother.

             (2) Notwithstanding anything contained in sub-
             section (1),--
             (a) any property inherited by a female Hindu
             from her father or mother shall devolve, in the
             absence of any son or daughter of the deceased
             (including the children of any pre-deceased son or
             daughter) not upon the other heirs referred to in
             sub-section (1) in the order specified therein, but
             upon the heirs of the father; and
             (b) any property inherited by a female Hindu
             from her husband or from her father-in-law shall
             devolve, in the absence of any son or daughter of
             the deceased (including the children of any pre-
             deceased son or daughter) not upon the other heirs
             referred to in sub-section (1) in the order specified
             therein, but upon the heirs of the husband."

5.    There is no doubt or dispute that the properties of the deceased were self-acquired ones and were not inherited from her parents' side. Appellants before us are her brothers, the original applicant being the mother of the deceased having died. Respondents are the sons of sister of the Narayani's husband.

6.    Mr. N.R. Choudhary, learned counsel appearing on behalf of the appellant would contend that in a case of this nature where the husband of the deceased or her in-laws had not made any contribution towards her education or had not lent any support during her life time, sub-Section (2) of Section 15 of the Act should be held to be applicable. It was urged that the Parliamentary intent as contained in clause (a) of sub-Section (2) of Section 15 of the Act should be the guiding factor for interpreting the said provision.

7.    Mr. Arvind V. Savant, learned Senior Counsel appearing on behalf of the respondent, however, would support the impugned judgment.

8.    Section 15 provides for the general rules of succession in the case of female Hindus. It lays down the mode and manner in which the devolution of interest of a female shall take place. Section 16 provides for the order of succession and manner of distribution amongst the heirs of a female Hindu, stating that the same shall be according to the rules specified therein. It reads as under:

             "Rule 1.--Among the heirs specified in sub-
             section (1) of section 15, those in one entry shall
             be preferred to those in any succeeding entry and
             those including in the same entry shall take
             simultaneously.
             Rule 2.--If any son or daughter of the intestate had
             pre-deceased the intestate leaving his or her own
             children alive at the time of the intestate's death,
             the children of such son or daughter shall take
             between them the share which such son or
             daughter would have taken if living at the
             intestate's death.
             Rule 3.--The devolution of the property of the
             intestate on the heirs referred to in clauses (b), (d)
            and (e) of sub-section (1) and in sub-section (2) of
            section 15 shall be in the same order and according
            to the same rules as would have applied if the
            property had been the father's or the mother's or
            the husband's as the case may be, and such person
            had died intestate in respect thereof immediately
            after the intestate's death."

9.    It has not been disputed that the respondents are the heirs and legal representatives of Dindayal, husband of Narayani. Sub-Section (1) of Section 15 lays down the ordinary rule of succession. Clause (a) of sub- Section (2) of Section 15 providing for a non-obstante clause, however, carves out an exception viz. when the property is devolved upon the deceased from her parents' side, on her death the same would relate back to her parents' family and not to her husband's family. Similarly, in a case where she had inherited some property from her husband or from her husband's family, on her death the same would revive to her husband's family and not to her own heirs. The law is silent with regard to self- acquired property of a woman. Sub-section (1) of Section 15, however, apart from the exceptions specified in sub-section (2) thereof does not make any distinction between a self-acquired property and the property which she had inherited. It refers to a property which has vested in the deceased absolutely or which is her own. The self-acquired property of a female would be her absolute property and not the property which she had inherited from her parents.

10.   In that view of the matter, we are of the opinion that sub-Section (1) of Section 15 of the Act would apply and not the sub-Section (2) thereof.

      This is a hard case. Narayani during her life time did not visit her in-laws' place.   We will presume that the contentions raised by Mr. Choudhury that she had not been lent any support from her husband's family is correct and all support had come from her parents but then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision which is otherwise impermissible. It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.

      In M.D., H.S.I.D.C. and Ors. vs. Hari Om Enterprises and Anr [2008 (9) SCALE 241], this Court held:

            "54. This Court applied the doctrine of
            proportionality having regard to a large number of
            decisions operating in the field. This Court,
            however, also put a note of caution that no order
            should be passed only on sympathy or sentiment."

      In Subha B. Nair & Ors. vs. State of Kerala & Ors. [(2008) 7 SCC 210], this Court held:

             "21. This Court furthermore cannot issue a
             direction only on sentiment/sympathy."

      In Ganga Devi vs. District Judge, Nainital & Ors. [(2008) 7 SCC 770], this Court held:

             "22. The court would not determine a question
             only on the basis of sympathy or sentiment. Stricto
             sensu equity as such may not have any role to
             play."

      If the contention raised by Mr. Choudhury is to be accepted, we will have to interpret sub-section (1) of Section 15 in a manner which was not contemplated by the Parliament. The Act does not put an embargo on a female to execute a will. Sub-section (1) of Section 15 would apply only in a case where a female Hindu has died intestate. In such a situation, the normal rule of succession as provided for by the statute, in our opinion, must prevail.

      For the aforementioned purpose, the golden rule of interpretation must be applied.

11.   This Court in Bhagat Ram (Dead) vs. Teja Singh [(1999) 4 SCC 86], held as under:

             "6. On perusal of the two Sub-sections we find
             that their spheres are very clearly marked out. So
             far Sub-section (1), it covers the properties of a
             female Hindu dying intestate. Sub-section (2)
             starts with the words 'Notwithstanding anything
             contained in Sub-section (1)'. In other words, what
             falls within the sphere of Sub-section (2), Sub-
             section (1) will not apply. We find that Section
             15(2)(a) uses the words 'any property inherited by
             a female Hindu from her father or mother'. Thus
             property inherited by a female Hindu from her
             father and mother is carved-out from a female
             Hindu dying intestate. In order words any property
             of female Hindu, if inherited by her from her father
             or mother would not fall under Sub-section (1) of
             Section 15. Thus, property of a female Hindu can
             be classified under two heads : Every property of a
             female Hindu dying intestate is a general class by
             itself covering all the properties but Sub-section
             (2) excludes out of the aforesaid properties the
             property inherited by her from her father or
             mother.

             7.     In addition, we find the language used in
             Section 15(1) read with Section 16 makes it
             clearly, the class who has to succeed of property of
             Hindu female dying intestate. Sub-section (1)
             specifically state that the property of a female
             Hindu dying intestate shall devolve according to
             the rules set out in Section 16. So, in case Sub-
             section (1) applies, then after the death of Santi,
             Indro can not inheritance by succession but it
             would go to the heirs of the pre-deceased husband
             of Santi."
12.   For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed accordingly. However, in the facts and circumstances of this case, there shall be no order as to costs.
                                            .....................................J.
                                            [S.B. Sinha]
                                            .....................................J.
                                            [Dr. Mukundakam Sharma]
New Delhi;
May 5, 2009

A woman cannot be said to have an intention to commit rape.

2009-05-05T10:10:00.000-07:00

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 847 OF 2009

(Arising out of SLP(Crl.) No. 2207 OF 2008)

State of Rajasthan                                                ....Appellant
                                              Versus
Hemraj & Anr.                                                    ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.
1.         Leave granted.

2.         Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court, Jaipur Bench dismissing the application for grant of leave to question correctness of the judgment of learned Additional District Sessions Judge (Fast track), No.2 Alwar.

3.         Background facts in a nutshell are as follows:

Respondents were facing the trial for alleged commission of offence punishable under Section 342 and 376(2) of the Indian Penal Code, 1860 (in short the `IPC'). PW1 was the victim. The trial court noticed that it was the accused Chandan who committed rape on her. There was no allegation of rape against the other accused persons namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 (in short the `Juvenile Act').The trial court as noted above held the accused Hemraj guilty of offence punishable under Section 342 IPC and held that the Accused Kamla cannot be convicted in terms of Section 376 (2) IPC. The State filed an appeal questioning acquittal of the respondent from the accusations relatable to Section 376(2) IPC. The High Court held that so far as the accused Hemraj is concerned his presence at the spot was doubtful. In any event both the respondents cannot be held guilty of offence punishable under Section 376(2) IPC.

4.         Learned counsel for the appellant-State submitted that scope and ambit of Section 376(2)(g) and the explanation appended thereto have been lost sight of by the High Court.

5.         Learned counsel for the respondent on the other hand submitted that the High Court rightly noted that the presence of accused Hemraj at the alleged time of rape has not been established. Additionally, a lady i.e. respondent No.2 cannot be held guilty even in terms of the Explanation to Section 376 (2)(g) of the IPC.

6.         In order to appreciate rival submissions Sections 375 and 376 need to be noted. They so far as relevant read as follows:-

"375. Rape
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under sixteen years of age.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

376. Punishment for rape

(1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either escription for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

xx                    xx                    xx                     xx                    xx

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years,

Explanation I.--Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.
x                      xx                    xx                    xx                    xx"

7.           A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits `gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub- section (2).    That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre- arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

8.        The appeal is without merit, deserves dismissal, which we direct.

                                      .......................J.
                                                              (Dr. ARIJIT PASAYAT)
                            .................................J.
                                                              (ASOK KUAMR GANGULY)
New Delhi,
April 27, 2009

Legal marriage is not necessary for offence under Sec. 304B & 498A

2009-05-04T03:19:00.000-07:00

REPORTABLE JUDGMENT

                   IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION
                CRIMINAL APPEAL NO. 867 OF 2009
                 (Arising out of SLP (Crl.) No. 4496 of 2006)

Koppisetti Subbharao @ Subramaniam                       ...Appellant

                                   Versus

State of A.P.                                            ...Respondent

                              JUDGMENT

Dr. ARIJIT PASAYAT, J.

1     Leave granted.

2.    Challenge in this appeal is to the order passed by a learned Single
Judge of the Andhra Pradesh High Court dismissing the petition filed under
Section 482 of the Code of Criminal Procedure, 1973 (in short the `Code').
The prayer in the petition was to quash the proceedings in C.C.No. 440 of1999 and CC No.325 of 2001 on the file of 3rd Additional Judicial First Class
Magistrate, Kakinada.
3.    Background facts in a nutshell are as follows:
      A case was registered against three accused persons including the
present appellant for alleged commission      of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code, 1860 (in short
the `IPC'). Initially, the presence of A-1 could not be secured and therefore
court separated the case against A-1 and proceeded the trial against A-2 and
A-3. In the said case A-2 and A-3 were acquitted. Thereafter, the present
application was filed before the High Court taking the stand that the
complainant was not be the legally wedded wife of the appellant as he was
already married and, therefore, Section 498-A has no application to the facts
of the case.

      The High Court dismissed the application on the ground that disputed
questions of fact are involved.

4.    Learned counsel for the appellant submitted that in view of the
acquittal of the co-accused persons the proceedings against the appellant
should not proceed.

5.    Learned counsel for the respondent-State on the other hand submitted
that whether there was valid legal marriage subsisting qua the appellant is a
question of fact and, therefore, the High Court was justified in dismissing
the application under Section 482 of Code.

6.    Parties to a marriage tying nuptial knot are supposed to bring about
the union of souls. It creates a new relationship of love, affection, care and
concern between the husband and wife. According to Hindu Vedic
philosophy it is sanskar - a sacrament; one of the sixteen important
sacraments essential to be taken during one's lifetime. There may be
physical union as a result of marriage for procreation to perpetuate the lineal
progeny for ensuring spiritual salvation and performance of religious rites,
but what is essentially contemplated is union of two souls. Marriage is
considered to be a junction of three important duties i.e. social, religious and
spiritual. A question of intricate complexity arises in this appeal where
factual scenario has to be also considered.

7.    Stand of the appellant was that it was required to be shown that the
victim-woman was the legally married wife of the accused. Since victim
claim to have married during the lifetime of the appellant, prosecution has
failed to establish that it stood dissolved legally. Prosecution having failed to
bring any material record in that regard, Section 498-A has no application.

8.    The marriages contracted between Hindus are now statutorily made
monogamous. A sanctity has been attributed to the first marriage as being
that which was contracted from a sense of duty and not merely for personal
gratification. When the fact of celebration of marriage is established it will
be presumed in the absence of evidence to the contrary that all the rites and
ceremonies to constitute a valid marriage have been gone through. As was
said as long as 1869 "when once you get to this, namely, that there was a
marriage in fact, there would be a presumption in favour of there being a
marriage in law". (See Inderun Valungypooly v. Ramaswamy (1869 (13)
MIA 141.) So also where a man and woman have been proved to have lived
together as husband and wife, the law will presume, until contrary be clearly
proved, that they were living together in consequence of a valid marriage
and not in a state of concubinage. (See Sastry Velaider v. Sembicutty (1881
(6) AC 364) following De Thoren v. Attorney General (1876 (1) AC 686)
and Piers v. Piers (L.R.(2) H.L.C. 331). Where a marriage is accepted as
valid by relations, friends and others for a long time it cannot be declared as
invalid. In Lokhande's case (supra), it was observed by this Court "The
bare fact that man and woman live as husband and wife it does not at any
rate normally give them the status of husband and wife even though they
may hold themselves before the society as husband and wife and the society
treats them as husband and wife". These observations were cited with
approval in Surjit Kaur v. Garja Singh and Ors. (AIR 1994 SC 135). At first
blush, it would seem that these observations run counter to the long catena
of decisions noted above. But on closer examination of the facts of those
cases it is clear that this Court did not differ from the views expressed in the
earlier cases. In Lokhande's case (supra), this Court was dealing with a case
of prosecution for bigamy. The prosecution had contended that second
marriage was gandharva form of marriage and no ceremonies were
necessary and, therefore, did not allege or prove that any customary
ceremonies were performed. In that background, it was held that even in the
case of gandharva marriages, ceremonies were required to be performed. To
constitute bigamy under Section 494 IPC, the second marriage had to be a
valid marriage duly solemnized and as it was not so solemnized it was not a
marriage at all in the eye of law and was therefore invalid. The essential
ingredient constituting the offence of Bigamy is the "marrying" again during
the lifetime of husband or wife in contrast to the ingredients of Section 498A
which, among other things, envisage subjecting the woman concerned to
cruelty. The thrust is mainly "marrying" in Section 494 IPC as against
subjecting of the woman to cruelty in Section 498A. Likewise, the thrust of
the offence under Section 304B is also the "Dowry Death". Consequently,
the evil sought to be curbed are distinct and separate from the persons
committing the offending acts and there could be no impediment in law to
liberally construe the words or expressions relating to the persons
committing the offence so as to rope in not only those validly married but
also any one who has undergone some or other form of marriage and thereby
assumed for himself the position of husband to live, cohabitate and exercise
authority as such husband over another woman. In Surjit Singh's case
(supra) the stand was that the marriage was in Karewa form. This Court held
that under the custom of Karewa marriage, the widow could marry the
brother or a relation of the husband. But in that case the man was a stranger.
Further even under that form of marriage certain ceremonies were required
to be performed which were not proved. Dealing with the contention relating
to presumption, reference was made to Lokhande's case (supra). As the
parties had set up a particular form of marriage which turned out to be
invalid due to absence of proof of having undergone the necessary
ceremonies related to such form of marriage, the presumption of long
cohabitation could not be invoked.

9.    The presumption may not be available in a case, for example, where
the man was already married or there was any insurmountable obstacle to
the marriage, but presumption arises if there is strong evidence by
documents and conduct. Above position has been highlighted in Mayne's
Hindu Law and Usage.

10.   The question as to who would be covered by the expression `husband'
for attracting Section 498A does present problems. Etymologically, in terms
of the definition of "husband" and "marriage" as given in the various Law
Lexicons and dictionaries - the existence of a valid marriage may appear to
be a sine qua non for applying a penal provision. In Smt. Yamunabai
Anantrao Adhav v. Anantrao Shivram Adhav and Anr. (AIR 1988 SC 644) a
woman claimed maintenance under Section 125 of the Code of Criminal
Procedure, 1973 (in short the `Cr.P.C.'). This Court applied the provision of
the Marriage Act and pointed out that same was a law which held the field
after 1955, when it was enacted and Section 5 lays down that for a lawful
marriage the necessary condition that neither party should have a spouse
living at the time of the marriage is essential and marriage in contravention
of this condition therefore is null and void. The concept of marriage to
constitute the relationship of `husband' and `wife' may require strict
interpretation where claims for civil rights, right to property etc. may follow
or flow and a liberal approach and different perception cannot be an
anatheme when the question of curbing a social evil is concerned.
11.   The question of origin of dowry or dos has been the subject of study
by theoreticians. Mayne says that it was a contribution by the wife's family,
or by the wife herself, intended to assist the husband in bearing the expenses
of the conjugal household (Mayne on "Early History of Institution" page
319). While dos or dowry previously belonged to husband, his right over it
being unrestricted, all the property of the wife not included in the dowry was
called her "paraphra" and was her absolute property over which her husband
had no control. (See Banerjee on `Marriage and Stridhan' 345) In Pratibha
Rani v. Suraj Kumar and Anr. (AIR 1985 SC 628) after tracing out the
history of stridhan it was held that wife is the absolute owner of such
property under Section 27 of the Marriage Act. Property presented to the
husband and wife at or about the time of marriage belongs to them jointly.

12.   The Dowry Prohibition Act, 1961 (in short the `Dowry Act') was
introduced to combat the ever-increasing menace of dowry. The avowed
object is prohibition on giving and taking of dowry. Section 2 defines
"dowry". Section 4 provides the penalty for demanding "dowry", whileSection 5 is a significant provision making agreement for giving or taking
dowry to be void. Section 6 is another provision which reflects statutory
concern for prevention of dowry, be it taking or giving. It is provided therein
that pending transfer of the dowry, the person who received the dowry holds
it in trust for benefit of the woman. Amendment to Section 2 by Amendment
Act 43 of 1986 has made the provision clear and demand made after the
marriage is a part of dowry, in view of addition of words "at or before or
after the marriage". (See State of H.P. v. Nikku Ram (AIR 1996 SC 67).

13.   The definition of the term `dowry' under Section 2 of the Dowry Act
shows that any property or valuable security given or "agreed to be given"
either directly or indirectly by one party to the marriage to the other party to
the marriage "at or before or after the marriage" as a "consideration for the
marriage of the said parties" would become `dowry' punishable under the
Dowry Act. Property or valuable security so as to constitute `dowry' within
the meaning of the Dowry Act must, therefore, be given or demanded "as
consideration for the marriage."

14.   Section 4 of the Dowry Act aims at discouraging the very "demand"
of "dowry" as a `consideration for the marriage' between the parties thereto
and lays down that if any person after the commencement of the Act,"demands", directly or indirectly, from the parents or guardians of a `bride'
or `bridegroom', as the case may be, any `dowry' he shall be punishable
with imprisonment or with fine or within both. Thus, it would be seen that
Section 4 makes punishable the very demand of property or valuable
security as a consideration for marriage, which demand, if satisfied, would
constitute the graver offence under Section 3 of the Act punishable with
higher imprisonment and with fine which shall not be less than fifteen
thousand rupees or the amount of the value of such dowry whichever is
more.

15.     The definition of the expression `dowry' contained in Section 2 of the
Dowry Act cannot be confined merely to be `demand' of money, property or
valuable security' made at or after the performance of marriage. The
legislature has in its wisdom while providing for the definition of `dowry'
emphasized that any money, property or valuable security given, as a
consideration for marriage, `before, at or after' the marriage would be
covered by the expression `dowry' and this definition as contained in
Section 2 has to be read wherever the expression `dowry' occurs in the Act.
Meaning of the expression `dowry' as commonly used and understood is
different than the peculiar definition thereof under the Act. Under Section 4,
mere demand of `dowry' is sufficient to bring home the offence to an
accused. Thus, any `demand' of money, property or valuable security made
from the bride or her parents or other relatives by the bridegroom or his
parents or other relatives or vice-versa would fall within the mischief of
`dowry' under the Act where such demand is not properly referable to any
legally recognized claim and is relatable only to the consideration of
marriage. Marriage in this context would include a proposed marriage also
more particularly where the non-fulfilment of the "demand of dowry" leads
to the ugly consequence of the marriage not taking place at all.           The
expression "dowry" under the Dowry Act has to be interpreted in the sense
which the statute wishes to attribute to it. The definition given in the statute
is the determinative factor. The Dowry Act is a piece of social legislation
which aims to check the growing menace of the social evil of dowry and it
makes punishable not only the actual receiving of dowry but also the very
demand of dowry made before or at the time or after the marriage where
such demand is referable to the consideration of marriage. Dowry as a quid
pro quo for marriage is prohibited and not the giving of traditional presents
to the bride or the bridegroom by friends and relatives. Thus, voluntary
presents given at or before or after the marriage to the bride or the
bridegroom, as the case may be, of a traditional nature, which are given not
as a consideration for marriage but out of love, affection or regard, would
not fall within the mischief of the expression `dowry' made punishable
under the Dowry Act.

16.   Aryan Hindus recognised 8 forms of marriage, out of which four were
approved, namely, Brahma, Daiva, Arsha and Prajapatya. The dis-approved
forms of marriages were Gandharva, Asura, Rakshasa and Paisacha. In the
Brahma form of marriage, some amounts had to be spent by father/guardian,
as the case may be, to go ultimately to the spouses. The origin of dowry may
be traced to this amount either in cash or kind.

17.   The concept of "dowry" is intermittently linked with a marriage and
the provisions of the Dowry Act apply in relation to marriages. If the legality
of the marriage itself is an issue further legalistic problems do arise. If the
validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognizable. Even then
the purpose for which Sections 498A and 304B-IPC and Section 113B of the
Indian Evidence Act, 1872 (for short the `Evidence Act') were introduced
cannot be lost sight of. Legislations enacted with some policy to curb and
alleviate some public evil rampant in society and effectuate a definite public
purpose or benefit positively requires to be interpreted with certain element
of realism too and not merely pedantically or hyper technically. The obvious
objective was to prevent harassment to a woman who enters into a marital
relationship with a person and later on, becomes a victim of the greed for
money. Can a person who enters into a marital arrangement be allowed to
take a shelter behind a smokescreen to contend that since there was no valid
marriage the question of dowry does not arise? Such legalistic niceties
would destroy the purpose of the provisions. Such hairsplitting legalistic
approach would encourage harassment to a woman over demand of money.
The nomenclature `dowry' does not have any magic charm written over it. It
is just a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but
also his relations who are covered by Section 498A. Legislature has taken
care of children born from invalid marriages. Section 16 of the Marriage Act
deals with legitimacy of children of void and voidable marriages. Can it be
said that legislature which was conscious of the social stigma attached to
children of void and voidable marriages closed eyes to plight of a woman
who unknowingly or unconscious of the legal consequences entered into the
marital relationship. If such restricted meaning is given, it would not further
the legislative intent. On the contrary, it would be against the concern shown
by the legislature for avoiding harassment to a woman over demand of
money in relation to marriages. The first exception to Section 494 has also
some relevance. According to it, the offence of bigamy will not apply to
"any person whose marriage with such husband or wife has been declared
void by a Court of competent jurisdiction". It would be appropriate to
construe the expression `husband' to cover a person who enters into marital
relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerce her in any
manner or for any of the purposes enumerated in the relevant provisions -
Sections 304B/498A, whatever be the legitimacy of the marriage itself for
the limited purpose of Sections 498A and 304B IPC. Such an interpretation,
known and recognized as purposive construction has to come into play in a
case of this nature. The absence of a definition of `husband' to specifically
include such persons who contract marriages ostensibly and cohabitate with
such woman, in the purported exercise of his role and status as `husband' is
no ground to exclude them from the purview of Section 304B or 498A IPC,
viewed in the context of the very object and aim of the legislations
introducing those provisions.

18.   In Chief Justice of A.P. v. L.V.A. Dixitulu (1979 (2) SCC 34), this
Court observed:

             "The primary principle of interpretation is that a
             constitutional or statutory provision should be construed
             "according to the intent of they that made it" (Coke).              Normally, such intent is gathered from the language of
              the provision. If the language or the phraseology
              employed by the legislation is precise and plain and thus
              by itself proclaims the legislative intent in unequivocal
              terms, the same must be given effect to, regardless of
              the consequences that may follow. But if the words used
              in the provision are imprecise, protean or evocative or
              can reasonably bear meanings more than one, the rule of
              strict grammatical construction ceases to be a sure guide
              to reach at the real legislative intent. In such a case, in
              order to ascertain the true meaning of the terms and
              phrases employed, it is legitimate for the Court to go
              beyond the arid literal confines of the provision and to
              call in aid other well-recognised rules of construction,
              such as its legislative history, the basic scheme and
              framework of the statute as a whole, each portion
              throwing light, on the rest, the purpose of the
              legislation, the object sought to be achieved, and the
              consequences that may flow from the adoption of one in
              preference to the other possible interpretation.

19.   In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883), this
Court held:

              "....But, if the words are ambiguous, uncertain or any
              doubt arises as to the terms employed, we deem it as out
              paramount duty to put upon the language of the
              legislature rational meaning. We then examine every
              word, every section and every provision. We examine
              the Act as a whole. We examine the necessity which
              gave rise to the Act. We look at the mischiefs which the
              legislature intended to redress. We look at the whole
              situation and not just one-to-one relation. We will not
              consider any provision out of the framework of the
              statute. We will not view the provisions as abstract
              principles separated from the motive force behind. We
              will consider the provisions in the circumstances to              which they owe their origin. We will consider the
              provisions to ensure coherence and consistency within
              the law as a whole and to avoid undesirable
              consequences.

20.   In District Mining Officer v. Tata Iron & Steel Co. (JT 2001 (6) SC
183), this Court stated:

              "The legislation is primarily directed to the problems
              before the legislature based on information derived from
              past and present experience. It may also be designed by
              use of general words to cover similar problems arising
              in future. But, from the very nature of thing, it is
              impossible to anticipate fully in the varied situations
              arising in future in which the application of the
              legislation in hand may be called for the words chosen
              to communicate such indefinite referents are bound to
              be in many cases, lacking in charity and precision and
              thus giving rise to controversial questions of
              construction. The process of construction combines both
              literal and purposive approaches. In other words, the
              legislative intention i.e. the true or legal meaning of an
              enactment is derived by considering the meaning of the
              words used in the enactment in the light of any
              discernible purpose or object which comprehends the
              mischief and its remedy to which the enactment is
              directed".

21.   The suppression of mischief rule made immortal in Heydon's case (3
Co Rep 7a 76 ER 637) can be pressed into service. With a view to suppress
the mischief which would have surfaced had the literal rule been allowed to
cover the field, the Heydon's Rule has been applied by this Court in a
number of cases, e.g. Bengal Immunity Co. Ltd., v. State of Bihar and Ors.
(AIR 1955 SC 661), Goodyear India Ltd. v. State of Haryana and Anr. (AIR
1990 SC 781), P.E.K. Kalliani Amma and Ors. v. K. Devi and Ors. (AIR
1996 SC 1963) and Ameer Trading Corporation Ltd., v. Shapporji Data
Processing Ltd. (2003 (8) Supreme 634).

22.   In Reserve Bank of India etc. etc. v. Peerless General Finance and
Investment Co. Ltd. and others etc. etc. (1987 (1) SCC 424) while dealing
with the question of interpretation of a statute, this Court observed:

                    "Interpretation must depend on the text and the
             context. They are the bases of interpretation. One may
             well say if the text is the texture, context is what gives
             the colour. Neither can be ignored. Both are important.
             That interpretation is best which makes the textual
             interpretation match the contextual. A statue is best
             interpreted when we know why it was enacted. With
             this knowledge, the statute must be read, first as a whole
             and then section by section, clause by clause, phrase by
             phrase and word by word. If a statute is looked at in the
             context of its enactment, with the glasses of the statute-
             maker, provided by such context, its scheme, the
             sections, clauses, phrases and words may take colour
             and appear different than when the statute is looked at
             without the glasses provided by the context. With these
             glasses we must look at the Act as a whole and discover
             what each section, each clause, each phrase and each
             word is meant and designed to say as to fit into the
             scheme of the entire Act. No part of a statute and no
             word of a statute can be construed in isolation. Statutes             have to be construed so that every word has a place and
             everything is in its place."

23.   In Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 (CA),
Lord Denning, advised a purposive approach to the interpretation of a word
used in a statute and observed:

                     "The English language is not an instrument of
             mathematical precision. Our literature would be much
             the poorer if it were. This is where the draftsmen of
             Acts of Parliament have often been unfairly criticised. A
             Judge, believing himself to be fettered by the supposed
             rule that he must look to the language and nothing else,
             laments that the draftsmen have not provided for this or
             that, or have been guilty of some or other ambiguity. It
             would certainly save the Judges trouble if Acts of
             Parliament were drafted with divine prescience and
             perfect clarity. In the absence of it, when a defect
             appears, a Judge cannot simply fold his hands and
             blame the draftsman. He must set to work on the
             constructive task of finding the intention of Parliament,
             and he must do this not only from the language of the
             statute, but also from a consideration of the social
             conditions which gave rise to it and of the mischief
             which it was passed to remedy, and then he must
             supplement the written word so as to give `force and
             life' to the intention of the legislature......A Judge should
             ask himself the question how, if the makers of the Act
             had themselves come across this ruck in this texture of
             it, they would have straightened it out? He must then do
             so as they would have doe. A Judge must not alter the
             material of which the Act is woven, but he can and
             should iron out the creases."

24.      These aspects were highlighted by this Court in S. Gopal Reddy v.
State of A.P. (1996 (4) SCC 596) and Reema Aggarwal v. Anupam (2004
(3) SCC 199.

25.      The High Court was justified in holding that disputed questions of fact
are involved and the application under Section 482 of Code has been rightly
rejected. We do not find any scope for interference with the order of the
High Court. However, we make it clear that we have not expressed any
opinion on the merits of the case.

26.      The appeal is dismissed.

                                            ........................................J.
                                            (Dr. ARIJIT PASAYAT)

                                            ........................................J.
                                            (ASOK KUMAR GANGULY)

      New Delhi,
      April 29, 2009

The Standards of Weights and Measures (Packaged Commodities) Rules, 1977

2009-03-19T10:41:00.000-07:00

The Standards of Weights and Measures (Packaged Commodities) Rules, 1977

G.S.R. 622 (E), dated 26th September, 1977.- In exercise of the powers conferred by Sec. 83 of the Standards of Weights and Measures Act, 1976 (60 of 1976), the Central Government hereby makes the following rules, namely:

1. Short title, extent, application and commencement.-
(1) These rules may be called the Standards of Weights and Measures (Packaged Commodities) Rules, 1977.
(2) They shall extend to the whole of India.
(3) They shall apply to commodities in the packaged form which are, or are intended or likely to be-
(i) sold, distributed or delivered or offered or displayed for sale, distribution or delivery, or
(ii) stored for sale, or for distribution or delivery, in the course of inter-State, trade or commerce.

(4) They shall come into force on such date as the Central Government may, by notification, appoint, and different dates may be appointed for-
(i) different provisions of these rules, and
(ii) different commodities or classes of commodities.
and any reference in any provision to the commencement of these rules shall be construed as a reference to the coming into force of that provision or the coming into force of these rules in relation to any commodity or classes of commodities, as the case may be
Provided that they shall come into force in the State of Sikkim on the date on which Chapter IV of Part IV of the Act comes into force in that State.

Comment

Corrigendum.- In the garb of corrigendum a rule cannot be altered and/or changed.

2. Definitions.- In these rules, unless the context otherwise requires.-
(a) "Act" means the Standards of Weights and Measures Act, 1976 (60 of 1976):
(b) "batch" means -
(i) in the case of packages which have been stored, where the total number of such packages does not exceed 100, all such packages and where the total number exceeds 100 but does not exceed 10,000 all the packages of the same type and of the same production run:

(ii) in the case of packages which are on or at the end of the packaging line, the maximum hourly output of package;
(c) "combination package" means a package intended for retail sale containing two or more individual packages, or individual pieces, or dissimilar commodities;

Illustration.- A package containing dissimilar commodities, such as, spoons, knives, forks, cups, napkins, or the like, is a combination package;
(d) "dealer" , in relation to any commodity in packaged form, means a person who, or a firm or a Hindu undivided family which, carries on directly or otherwise, the business of buying, selling, supplying or distributing any such commodity, whether for cash or for deferred payment or for commission, remuneration or other valuable consideration, and includes a commission agent who carries on such business on behalf of any principal, but does not include a manufacturer who manufactures any commodity which is sold or distributed in a packaged form except where such commodity is sold by such manufacturer to any other person other than a dealer;
(e) "drained" weight in relation to a solid commodity contained in a free-flowing liquid, means the weight of such solid commodity after the liquid has been drained for a period of two minutes;
(f) "fancy package: means a package, the container of which has a fancy trade value of its own in addition to the value of the commodity contained in such package;
(g) "group package" means a package intended for retail sale, containing two or more individual packages, or individual pieces, of similar, but not identical (whether in quantity or size), commodities;

Explanation.- Commodities which are generally the same but differ in weight, measure or volume, appearance or quality are similar but not identical commodities;

Illustrations.-
(i) A package containing-
two sponges - 100 mm x 75 mm x 20 mm
one sponge - 100 mm x 100 mm x 30 mm
four sponges - 100 mm x 50 mm x 15 mm
is a group package;
(ii) a package containing assorted biscuits is a group package;
(iii) a package containing similar commodities of different brands is a group package.
(h) "manufacturer", in relation to any commodity in packaged form, means a person who, or a firm or a Hindu undivided family which, produces, makes or manufactures such commodity and includes a person, firm or Hindu undivided family who or which puts, or causes to be put, any mark on any packaged commodity, not produced, made or manufactured by him or it, and the mark claims the commodity in the package to be a commodity produced, made or manufactured, by such person, firm or Hindu undivided family, as the case may be;
(i) "maximum permissible error", in relation to the quantity contained in an individual package, means an error in deficiency or excess which, subject to the provisions of these rules, does not exceed-
(i) in relation to the commodities specified in the First Schedule, the limits error specified in the Schedule;
(ii) in relation to commodities not specified in the First Schedule the limits of error specified in the Second Schedule ;
(j) "multi-piece package means a package containing two or more individually packaged or labeled pieces of the same commodities of identical quantity, intended for retail sale, either in individual pieces or the package as a whole;

Illustration.- A package containing "5 toilet soap cake, net weight 20 g each, total net weight 100 g" is a multi-piece package;

(k) "packer" means a person who, or a firm, or a Hindu undivided family, which, pre-packs any commodity, whether in any bottle, tin, wrapper or otherwise; in units suitable for sale, whether wholesale or retail;
(l) "pre-packed commodity" with its grammatical variations and cognate expressions, means a commodity which, without the purchaser being present, is placed in a package of whatever nature, so that the quantity of the product contained therein has a pre-determined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification, and the expression "package", wherever it occurs, shall be construed as a package containing a pre-packed commodity;

Explanation [(1)] - Where, by reason merely of the opening of a package, no alteration is caused to the value, quantity, nature or characteristic of the commodity contained therein, such commodity shall be deemed, for the purposes of these rules, to be a pre-packed commodity, for example, an electric bulb or fluorescent tube is a pre-packed commodity, even though the package containing it is required to be opened for testing the commodity;

Explanation II.- Where a commodity consists of a number of components and these components are packed in one, two or more units for sale as a single commodity, such commodity shall be deemed, for the purpose of these rules, to be a pre-packed commodity.
(m) "principal display panel", in relation to package, means that part of a label which is intended, or is likely to be displayed, presented or shown or examined by the customer under normal and customary conditions of display, sale or purchase of the commodity contained in the package;
(n) "quantity", in relation to commodity contained in a package, means the quantity by weight, measure or number of such commodity contained in the package;
(o) "retail dealer" in relation to any commodity in packaged form means a dealer who directly sells such packages to the consumer and includes, in relation to such packages as are sold directly to the consumer, a wholesale dealer who makes such direct sale;
(p) "retail package" means a package containing any commodity which is produced, distributed, displayed, delivered or stored for sale through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals;
(q) "retail sale" in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or group of individuals or any other consumer;
(r) "retail sale price" means the maximum price at which the commodity in packaged form may be sold to the ultimate consumer and where such price is mentioned on the package, there shall be printed on the package, the words ["Maximum or Max. retail price] ..... inclusive of all taxes [or in the form MRP Rs...... inclusive of all taxes.

Explanation.- For the purpose of this clause 'maximum price' in relation to any commodity in packaged form shall include all taxes local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be.
(s) omitted by GSR 50(E) dt. 17-1-1992.
(t) "section" means a section of the Act;
(u) "standard package" means a package containing the specified quantity of a commodity;
(v) omitted by GSR 52(E) dt. 27-6-1995.
(w) "wholesale dealer" in relation to any commodity in packaged form means a dealer who does not directly sell such commodity to any consumer but distributes or sells such commodity through one or more intermediaries;

Explanation.- Nothing in this clause shall be construed as preventing a wholesale dealer from functioning as a retail dealer in relation to any commodity but where he functions in relation to any commodity as a retail dealer, he shall comply with all the provisions of these rules which a retail dealer is required by these rules to comply;
(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 an intermediary and is not intended for sale direct to a single consumer,
(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.

CHAPTER II
Provisions Applicable to Packages Intended for Retail Sale

3. Chapter to apply to packages intended for retail sale.- The provisions of this chapter shall apply to package intended for retail sale and the expression "package", wherever it occurs in this chapter, shall be construed accordingly.

4. Regulation for pre-packing and sale, etc. of commodities in packaged form.- On and from the commencement of these rules, no person shall pre-pack, or cause or permit to be pre-packed any commodity for sale, distribution or delivery unless the package in which the commodity is pre-packed bears thereon, or on a label securely affixed thereto, such declarations as are required to be made under these rules.
[* * *] Explanation:- (Omitted by GSR 578(E) dt. 26-8-1993).

5. Specific commodities to be packed and sold only in standard packages.- On and from the commencement of these rules, no person shall pre-pack or cause or permit to be pre-packed any commodity for sale, distribution or delivery except in such standard quantities as are specified in relation to that commodity in the Third Schedule:

Provided that the Central Government may, if it is satisfied that for any technical or mechanical reason it is not possible to pre-pack any commodity in the standard quantities as specified in the Third Schedule, authorize the pre-packing of such commodities in such quantities as it may specify.

6. Declaration to be made on every package.-
(1) Every package shall bear thereon or on a label securely affixed thereto a definite, plain and conspicuous declaration, made in accordance with the provisions of this chapter as to-
(a) the name and address of the manufacturer, or where the manufacturer is not the packer, of the packer or with the written consent of the manufacturer, of the manufacturer;
(b) the common or generic names of the commodity contained in the package.
Explanation.- Generic name in relation to a commodity means the name of the genus of the commodity, for example, in the case of common salt, sodium chloride is the generic name;
(c) the net quantity, in terms of the standard unit of weight or measure of the commodity contained in the package or where the commodity is packed or sold by number, the number of the commodity contained in the package;
(d) the month and year in which the commodity is manufactured or pre-packed;
[(e) * * * ] (omitted by GSR 521 (E) dt. 26-6-1995)
(f) the [retail sale price] of the package;
(g) where the sizes of the commodity contained in the package are relevant, the dimensions of the commodity, contained in the package and if the dimensions of the different pieces are different, the dimensions of each such different piece;
(h) such other matters as are specified in these rules:
Provided that -
(A) no declaration as to the month and year in which the commodity is manufactured or pre-packed shall be required to be made on-
(i) any bottle containing liquid milk, liquid beverage containing milk as an ingredient, soft drink, ready-to-serve fruit beverages, or the like, which, is returnable by the consumer for being refilled;
(ii) any package containing bread and any uncanned package of (a) vegetable (b) fruits, (c) ice-cream, (d) butter, (e) fish, (f) meat or (g) any other like commodity;
2.[(ii-a) liquid milk in pouches;]
(iii) any package containing metallic product;
(iv) any cylinder containing liquefied petroleum gas or any other gas;
(v) any package containing chemical fertilizer;

(B) where any packaging material bearing thereon the month in which any commodity was expected to have been pre-packed is not exhausted during that month, such packaging material may be used for pre-packing the concerned commodity produced or manufactured during the next succeeding month and not thereafter, but the Central Government may, if it is satisfied that such packaging material could not be exhausted during the period aforesaid by reason of any circumstances beyond the control of the manufacturer or packer, as the case may be, extend the time during which such packaging material may be used, and, where any such packaging material is exhausted before the expiry of the month indicated thereon, the packaging material intended to be used during the next succeeding month may be used for pre-packing the concerned commodity;

(C) no declaration as to the [retail sale price] shall be required to be made on -

(i) any uncanned package of (a) vegetables, (b) fruits, (c) ice-cream , (d) fish, (e) meat, or (f) any other like commodity;
(ii) any bottle containing liquid milk, liquid beverage containing milk as an ingredient, [* * *], which, is returnable by the consumer for being refilled;
(iii) any bottle containing alcoholic beverages, or spirituous liquor;
(iv) any package containing animal feed, [***], exceeding 15 Kg. or 15.1;
(v) any package containing a commodity for which controlled price has been fixed by or under any law for the time being in force.
2.(vi) packages containing printing ink,]

3.[The commodities mentioned at [at (i) to (vi) where retail sale price has not been mentioned by the manufacturer or packer on the package, the retail dealer shall display prominently at a conspicuous place of the premises in which he carries on his retail sale, the retail sale price of the package for the information of consumer.]

Explanation I.- The month and the year in which the commodity is pre-packed may be expressed either in words, or by numerals indicating the month and the year, or by both.
Explanation II.- Liquid milk does not include condensed milk.

4.[(2) Where a commodity consists of a number of components and these components are packed in two or more units, for sale as a single commodity, the declaration required to be made under sub-rule (1) shall appear on the main package and such package shall also carry information about the other accompanying packages.]
(3) omitted by notification GSR No. 458(E) dated 25-5-1985
[* * *]

7. Principle display panel - Its area, size and letter, etc. - (1) The area of the principal display panel shall be not less than -
(a) in the case of a rectangular container, forty per cent, of the product of height and weight of the panel of such container having the largest area;
(b) in the case of a cylindrical or nearly cylindrical, round or nearly round, oval or nearly oval container, twenty per cent, of the product of the height and average circumference of such container;
(c) in the case of a container of any other shape, twenty per cent, of the total surface area of the container unless there is a label securely affixed to the container and such label has a surface area of not less than ten per cent of the total surface area of the container.
(2) In computing the area of the principal display panel, the tops, bottom, flanges tops and bottoms of cans, and shoulders and necks of bottles or jars, shall be excluded.
(3) In case of a package having a capacity of five cubic centimeters or less, principal display panel may be a cord or tape affixed firmly to the package or container and bearing the required information.
I[(4) The height of any numeral in the declaration required under these rules, on principal display panel shall not be less than, -
(i) as shown in Table-I if the net quantity is declared in terms of weight volume;
(ii) as shown in Table-II if the net quantity is declared in terms of length, or number.
The height of letters in the declaration shall not be less than 1mm. height. When blown, formed, moulded, embossed or perforated the height of letters shall not be less than 2 mm.]:

Provided that the width of the letter or numeral shall not be less than one-third of height, but the provision shall not apply in the case of numeral '1' and letters (i) (I) and (I)

TABLE
Minimum height or numeral

Sl. No.	Net quantity in weight/volume	Normal Case	Minimum height in mm.When blown, formed, moulded, perforated, embossed on container
1.	Upto 50 g/ml.	1	2
2.	Above 50 g/ml. upto 200 b/ml.	2	4
3.	Above 200 g/ml. upto 1 Kg./litre.	4	6
4.	Above 1 Kg./litre	6	8

TABLE-II
Minimum height or numeral

Sl. No.	Net quantity in length, area of number, area of principal, display panel	Normal Case	Minimum height in mm. When blow, formed, embossed, moulded perforated on container
1.	Upto 100 cm square	1	2
2.	Above 100 cm square upto 500cm square	2	4
3.	Above 500 cm square upto 2500cm square	4	6
4.	Above 2500 cm square	6	8

[(5) I The foregoing provisions of this rule shall not apply to a package if the information to be specified on such package under this rule is also required to be given by or under any other law for the time being in force.]

8. Declaration where to appear.- [(1) Subject to the provision of sub-rule (2) every declaration required to be made under these rules, shall, where practicable, appear on the principal display panel and shall ordinarily be parallel to the base on which the package is intended by its manufacturer to rest, and declaration in respect of the net quantity, retail sale price (if to be marked) shall always be indicated on the same panel:

Provided that area surrounding the quantity declaration shall be free of printed information.
(a) above and below by a space equal to at least the height of the numeral in the declaration, and
(b) to the left and right by a space at least twice the height of numeral in the declaration.]
(2) As far as practicable, all information which are required by these rules to appear on the package or label, as the case may be, shall appear on the same panel and, shall be indicated together:
Provided that -
(i) in the case of a container which is returnable by the consumer for being refilled, the required declaration maybe made on the crown cork;
(ii) in the case of a container made of any metal, glass, plastic or foil, the month and the year, in which the commodity contained in such container was manufactured or pre-packed, may be indicated either on the top or on the bottom of such container:
(iii) in the case of a collapsible tube, the month, and the year, in which the commodity contained in such tube was manufactured or pre-packed, may be indicated on the crimped end of the tube:
(iv) in the case of a disc type container, the month and the year, in which the commodity contained in such container was manufactured or pre-packed, may be indicated either on the top or bottom of such container.
[(v)(1) In any package, if the net weight or measure of the commodity contained in the package is 2 kilograms or 2 litre or less and the printing is possible only at top or bottom, the retail sale price, month and year may be indicated at top or bottom, and it shall be embossed or indicated conspicuously, and an indication shall be given at the main panel that such retail sale price and month and year of packing are indicated at the top or bottom.]
(3) In a cylindrical or nearly cylindrical, round or neatly round, oval or nearly oval-shaped container, information required to appear on the principal display panel shall as far as practicable, appear on that portion of the circumference of the container which is most likely to be displayed, presented or shown to the consumer or examined by him under usual conditions of display for retail sale.
(4) Except in the case of fancy packages, the base on which the package is intended by its manufacturer to rest shall not be used as the principal display panel.
(5) In fancy packages, the declarations required to be made under these rules may be made at the top or bottom of the package.
[(6)(2) For soft drinks, ready to serve fruit beverages, or the like the bottle of, which is returnable by the consumer for being refilled, the retail sale price may be indicated either on the crown cap, or on the bottle or on both. If the retail sale price is indicated on the crown cap or the bottles, it is sufficient to indicate the retail sale price in the form 'M.R.P. Rs......'].

9. Manner in which declarations shall be made.- (1) Every declaration which is required to be made on a package under these rules shall be -
(a) legible, prominent, definite, plain and unambiguous.
(b) conspicuous as to size, number and colour,
(c) as far as practicable in such style or type of lettering as to be boldly, clearly and conspicuously presented in distinct contrast to the other type lettering or graphic material used on the package:
and shall be printed, painted or inscribed on the package in a colour that contrasts conspicuously with the background of the label:
[(d) numerals of the retail sale price and net quantity declaration in bold form:] and shall be printed, painted or inscribed on the package in a colour that contrasts conspicuously with the background of the level;

Provided that -
(a) where any label information is blown, formed or moulded on a glass or plastic surface or where such information is embossed or perforated on a package, such information shall not be required to be presented in a contrasting colour:
(b) where any declaration on a package is printed either in the form of hand writing or hand-script such declaration shall be clear, unambiguous and legible.
(2) No declaration shall be made so as to require it to be read through any liquid commodity contained in the package.
(3) Where a package is provided with an outside container or wrapper, such container, or wrapper shall also contain all the declarations which are required to appear on the package except where such container or wrapper itself is transparent and the declaration on the package itself are easily readable through such outside wrapper.

10. Declaration of name and address of the manufacturer, etc.-
(1) Subject to the provisions of rule 7 every package kept, offered or exposed for sale or sold, shall bear conspicuously on the package, the name and complete address of the manufacturer, or where manufacturer is not the packer of the package, or with the written consent of the manufacturer, of the manufacturer;
Provided that where by reason of the smallness of a package it is not reasonably practicable to indicate the name and complete address of the manufacturer or packer on package, it shall be sufficient compliance with the paragraph if a mark or inscription which would enable the consumer to identify the manufacturer or packer on the package:
Provided further that where any commodity manufactured outside India is packed in India, the package shall also contain on the principal display panel the name and complete address of the packer in India.
Explanation. - "Complete Address" means, in the case of a company, the address at which its registered office is situated, and, in any other case, the name of the street, number (if any) assigned to the premises of the manufacturer or packer, and either the name of the city and State where the business is carried on by the manufacturer or packer and either the name of the city and state where the business is carried out by the manufacturer or package or the PIN code.
(2) The name of the manufacturer or packer shall be the actual corporate name, or if not incorporated, the name under which the business is carried by such manufacturer or packer.

11. General provisions relating to declaration of quantity.- (1) In declaring the net quantity of the commodity contained in a package the weight of wrappers and materials other than the commodity shall be excluded:
Provided that where a package contains a large number of small items of confectionery, each of which is separately wrapped and it is not reasonably practicable to exclude from the net weight of the commodity, the weight of such immediate wrappers of all the items of the confectionery contained in the package, the net weight declared on the package containing such confectionery or on the label thereof, may include the weight of such immediate wrappers, if and only, if the total weight of such immediate wrappers does not exceed -
(i) eight percent, where such immediate wrapper is a waxed paper or any other paper with wax or aluminum foil under strip, and
(ii) six per cent, in the case of any other paper, of the total net weight of all the items of confectionery contained in the package minus the weight of immediate wrapper.

(2) Where a commodity in a package is not likely to undergo any variation in weight or measure, on account of the environmental conditions, the quantity declared on the package shall corresponds to the net quantity which will be received by the consumer and the declaration of quantity of commodity as indicated on the package and the declaration of quantity on such package shall not be qualified by the words "when packed" or the like.
(3) Save as otherwise provided in sub-rule (4), where a commodity in a package is likely to undergo variations in weight or measure on account of environmental conditions and such variation is negligible, the declaration of quantity in relation to such package shall be made after taking into account such variation so that the consumer may receive not less than the net quantity of the commodity as declared on the package, and the declaration of quantity on such package shall not also be qualified by the words "when packed" or the like.
(4) The declaration of quantity in relation to commodities specified in the Fourth schedule, that is to say, commodities which are likely to undergo significant variations in weight or measure on account of environmental or other conditions may be qualified by the words "when packed" and when such qualification is made, the package containing such commodity shall also bear thereon information with regard to the mannert specified in the said Fourth Schedule.

12. Manner in which declaration of quantity shall be expressed. - (1) The declaration of quantity shall be expressed in terms of such units of weight, measure or number of a combination of weight, measure or number as would give an accurate and adequate information to the consumer with regard to the quantity of the commodity contained in the package.
(2) Except in the cases of commodities specified in the Fifth Schedule, the declaration of quantity shall be in terms of the unit of -
(a) mass, if the commodity is solid, semi-viscous or mixture of solid and liquid;
(b) length, if the commodity is sold by linear measure;
(c) area, if the commodity is sold by area measure;
(d) volume, if the commodity is liquid or is sold by cubic measure; or
(e) number, if the commodity is sold by number:

Provided that in the case of solid commodity contained in a free-flowing liquid which is sold a such, the declaration of quantity shall be in terms of the drained weight of such solid commodity.
(3) Where the declaration of quantity has been made in terms of mass, the manufacturer or, as the case may be, the packer may, at his option, make an additional declaration on the package as to the number of commodities contained in the package.
[Illustration.- 1[ A package containing screws may not only indicate the total weight of the screws contained in the package but also the number and sizes of the screws contained in the package.]
(4) Where the declaration of quantity by weight, measure or number alone is not sufficient to give to the consumer full information with regard to the dimensions or number of commodity contained in the package, such declaration shall be accompanied by a declaration of the dimensions or number, or both, where necessary, of the commodity contained in the package.

Illustration:

	Name of the commodity		Additional information required
(a)	Acid in liquid form	.....	Concentration in mass per unit volume.
(b)	Fencing wire	.....	Weight per 100 meters or diameter whichever is applicable
(c)	Nails, wood screws	.....	Size (length, diameter and type thread).
	Ready-made garments:		Linear measure
	(i) Shirts and similar garments.		Neck size, in steps of one centimeter.
	(ii) Bushirts and similar garments.		Chest size, in steps of five centimeters.
	(iii) Underwear intended to cover upper part of the body or any part of the upper part of the body.		Chest size, in steps of five centimeters.
	(iv) Underwear intended to cover lower part of the body or any part of the lower part of the body.		Waist size, in steps of two centimeters, and length, in steps of five centimeters.
	(v) Trousers and similar garments, ladies or gents		Waist size, in steps of two centimeters, and length, in steps of five centimeters.
	(vi) Coat, overcoat and similar garments		Chest size, in steps of five centimeters, and its length, in steps of five centimeters.
	(vii) Socks and similar garments		Foot size, in steps of one centimeter and if stretchable, the limits of stretching in centimeters.
	(viii) Sweaters, cardigans and similar garments		Chest size, in steps of five centimeters.
	(ix) Hats, caps and other headgears		Circumference of head in steps of one centimeters.
	(x) Sarees, dhoties, shawls, handker- chiefs, bedsheets, pillow covers, towels and napkins.		Dimensions (length and breadth)
(e)	Tyres and tubes		Size (metric units only)
(f)	Yarn		Counts

(5) Where it is necessary to communicate to the consumer any additional information about the commodity contained in a package, such information shall also appear on the same panel in which the other information, as required by these rules, have been indicated.

Illustration:
Additional information like the following is necessary to be communicated to the consumer namely:
[(a)(b)(c) Ommitted by G.S.R.105 (E), dated 2-3-1995.]

(d) in the case of still films the number of exposures, which may be made and the length and width of individual exposures, to be expressed in millimeters, for example, 36 exposures, 36 mm x 24 mm;
(e) in the case of movie films and bulk still films the linear measure of the usable film, to be expressed in meters:
(f) in the case of an electrical or electronic appliances, the voltage and wattage, and also the output of such electrical or electronic appliances;
(g) in the case of an electric bulb or other appliance intended to be used for illumination, in addition to the information specified in C1. (f). the illuminating power of such bulb or other appliance.

(6) The declaration or quantity shall not contain any word or expression which tends to create an exaggerated, misleading or inadequate impression as to the quantity of the commodity contained in the package, for example words or expression like-

(i) "minimum", "not less than", "average", "about", "approximately" or any other word of a similar nature, or
(ii) "jumbo", "giant", "full" , "family huge", "economy", "large", "extra", "colossal", "king", "queen", or any other word or expression of a similar nature, shall not be used.

(7) Where, by reason of the smallness of a package, the declaration of a quantity cannot be written on the container or on the label thereon, such declaration shall be made on a tag, card, tape, or any other similar device affixed to the container in such manner that it cannot be removed without opening the container and every such tag, card, tape, or other device shall contain a mark or inscription which would enable the consumer to identify the manufacturer or packer, as the case may be.

13. Statement of Units of Weight, Measure or Number.- (1) The units of weight, measure or number shall be specified in accordance with the units specified in sub-rule (2) or sub-rule(3), as the case may be.

(2) When expressing a quantity less than -
(a) one kilogram, the unit of weight shall be the gram ;
(b) one metre, the unit length shall be the centimeter ;
(c) one square metre, the unit of area shall be the square decimeter ;
(d) one cubic meter, the unit of volume shall be one cubic decimeter ;
(e) one cubic decimeter, the unit of volume shall be the cubic centimeter ;
(f) one litre, the unit of volume shall be the milliliter ;
(3) When expressing a quantity of equal to or more than -
1(a) (i) one kilogram, the unit of weight shall be the kilogram and any fraction of a kilogram shall be expressed in terms of decimal sub-multiples of kilogram ;
(ii) one tonne, the unit of weight shall be the tonne, and any fraction of a tonne shall be expressed in terms of decimal sub-multiples of the tonne ;
(b) one metre, the unit of length shall be the meter, and any fraction of a metre shall be expressed in terms of decimal sub-multiples of metre ;
(c) one square metre, the unit of area shall be the square meter and any fraction of a square metre shall be expressed in terms of decimal sub-multiples of the square metre ;
(d) The cubic metre, the unit of volume shall be the cubic meter and any fraction of a cubic metre shall be expressed in terms of decimal sub-multiples of the cubic metre ;
(e) 1[one litre, ], the unit of volume shall be the litre and any fraction of a litre shall be expressed in terms of decimal sub-multiples of the litre ;cubic litre,

Provided that where the quantity to be expressed is equal to one kilogram, one metre, one square metre, one cubic decimetre, one cubic metre or one litre, as the case may be, such quantity may be expressed, at the option of the manufacturer or the packer, in terms of gram, centimetre, square decimetre, cubic decimetre or millilitre, as the case may be :

Provided further that where the quantity to be expressed is equal to or more than 100 kilograms but less than 1, 000 Kilograms, such quantity may be expressed, at the option of the manufacturer or the packer, in terms of quintal which is equivalent to 100 Kilograms.

Illustrations:
(a) Where the weight is 1,500 grams, it shall be expressed as 1.5 Kilogram.
[(b) Ommitted by GSR 314 (E) dated 12-3-1994]
(c) Where the length is 225 centimetres, it shall be expressed as 2.25 Metres.
(d) Where the volume is 1,200 millilitres, it shall be expressed as 1.2 litre.

(4) Units of weight or measure not specified in sub-rules (2) and (3) shall be expressed in accordance with the following principles, namely:

(a) when expressing a quantity less than the standard unit, the quantity shall be expressed in terms of the mill unit, and where the quantity is less than one thousand the part of a unit, in terms of the micro unit, and so on;
(b) when expressing a quantity more than the standard unit, the quantity shall be expressed in terms of the unit up to, to but not including one thousand units, and where the quantity is one thousand units or more, but less than one million units, the quantity shall be expressed in terms of the kilo units and where the quantity is one million units or more, the quantity shall be expressed in terms of mega units and so on ;
(c) when the quantity is more than one standard unit but less than the next standard unit, the fraction shall be expressed in accordance with the decimal sub-multiples of the unit.

(5) When any commodity is packed by number, such number shall be expressed on the package in international form of Indian numerals, and every package intended to be sold by number shall be packed in the manner specified in the Sixth Schedule:

1[Provided that the Central Government may, if it is satisfied that for any technical or mechanical reason it is not possible to pre-pack any commodity in the standard quantities specified in the Sixth Schedule, authorise the pre-packing of such commodity in such numbers as it may specify.

(6) No number called the dozen (12), score (20), gross (144), great gross (1,728) or the like shall be specified or indicated on any package.

[(7) Symbols for Units:

(a)3[The symbols for International System of Units and none other, shall be used in furnishing the net quantity of the package.

Illustrations:

Kilogram	Kg.
Gram	g
Miligram	mg
litre	l
mililitre	ml.
metre	m.
centimetre	cm.
milimetre	mm.
square metre	m²
square centimetre	cm²
cubic metre	m³
cubic centimetre	cm³

(b) symbols shall not be given in capital form except for the unit derived from a proper name. Period i.e. a dot after symbols shall not be put. As far as possible symbols shall always be written in the single form i.e. "s" shall not be added.]
[14.Unit Sale Price]

15. Additional declarations to be made on combination packages.-
(1) A combination package shall contain, in addition to the declaration required to be made under any other provisions of these rules, an indication of the net weight, measure or number, as the case may be, in respect of each commodity contained in the package and the [retail sale price] of the combination package.
[(2) When individual commodities in a combination package are packaged or labeled separately and are capable of being sold separately, each such commodity shall beat thereon, a declaration as to the quantity and the [l sale price thereof].

16. Additional declaration to be made on group packages.- (1) The additional declarations on a grouped package shall be expressed as follows:
(a) the number of pieces of each commodity contained in such package, followed by the net weight, measure or number, as the case may be ;
(b) the total number of pieces contained in the group package ; and
(c) the [ sale price] of the group package.
(2)When individual pieces in a group package are either packaged or labeled separately and are capable of being sold as individual pieces each such piece shall bear thereon a declaration as to its quantity and the [retail sale price] thereof.

17. Additional declarations to be made on multi-piece packages.- (1) Every multi-piece package shall bear thereon, in addition to the declaration required to be made under any other provision of these rules, a declaration of -
(a) the number of individual pieces contained therein ;
(b) the [sale price] of the multi-piece package :

Provided that where individual pieces contained in a multi-piece package are packaged or labeled separately and are capable of being sold separately each piece shall bear thereon a declaration as the quantity and the [ sale price] thereof.
(2) When a multi-piece package contains a number of smaller multi-piece packages each of which is capable of being sold separately, such multi-piece packages shall also bear thereon a declaration as to the number of smaller packages contained therein and the quantity contained in each such smaller package.

18. Declarations 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 [ sale price] of each such piece :

Provided further that the dimensions of the commodities and the [retail sale price] thereof shall also be marked on each individual piece.

19. Declaration with regard to dimensions and weight to be made on package in certain cases.- Where the dimensions and weight, or combination thereof, of a commodity has or have a relationship to the price of that commodity, the declaration of quantity on the package containing such commodity, shall also include a declaration as to such dimensions, weight or combination.

20. Declarations to be made with regard to the number of usable sheets to be stated.- In the case of a package containing sheets like aluminum foil, facil tissues, waxed paper, toilet paper or any other type of sheet, the declaration of quantity on the package shall also include a statement as to the number of usable sheets contained in the package and the dimensions of each such sheet.

21. Declarations with regard to the dimensions of container - type commodities - How to be expressed: Commodities, such as, bags, boxes, cups, pans or the like designed and sold in retail trade for being used as containers for other material or objects, shall be labeled with the declaration of quantity as follows:

(i) For bag type commodities.- In terms of the number of bags which the package may contain, followed by liners dimensions of the bags, whether packaged in a perforated roll or otherwise.

Illustrations:
(a) for bags without gusset - "25 bags, 200 x 200 mm" ;
(b) for bags with gusset - "100 bags, 600 mm x 800 mm x 200 mm" ;

(ii) For square, oblong, rectangular or similarly shaped containers.- In terms of the number of containers which the package may contain, followed by length, width, and if required, depth of the container.
Illustrations:
(a) "2 cale-pans, 200 mm x 200 mm" ;
(b) "1 roasting pan, 250 mm x 200 mm x 50 mm" ;

(iii) For circular or generally round-shaped containers not being cups or the like.- In terms of the number of commodities contained therein followed by diameter and, if necessary, depth of the container.
Illustration.- "4 pans, 200 mm diameter x 100 mm" ;
(iv) When the use of a container is related by label reference in terms of standard weight or measure, to the capability of the container to hold a specific quantity of a commodity or a class of commodities such references shall be included in the declaration of quantity.

Explanation I.- Containers which are intended to be used for liquids, semi-solids, viscous materials or mixtures of solids, and liquids shall fall within the ambit of this rule.
Illustration.- Freeze boxes - "4 boxes, 500 ml capacity, 120 mm x 100 mm x 70 mm" .

Explanation II.-Containers intended to be used for solids shall fall within the ambit of this rule.
Illustrations:
(a) Bags - "8 bags, 100 kg capacity, 900 mm x 1,500 mm" ;
(b) Cups - "20 cups, 200 ml capacity".

Explanation III.- Where containers are used as liners for other more permanent containers, the declarations shall be in the same terms as are normally used to express the capacity of the permanent containers.
Illustration.- Can liners - "10 liners, 450 mm x 100 mm, fits cans up to a capacity of 100 litres".
[22. ****](Ommitted by Notification GSR-393(E)dated 23-5-1984)

23. Provisions relating to wholesale dealer and retail dealers.-
(1) No wholesale dealer or retail dealer shall sell, distribute, deliver, display or store for sale any commodity in the packaged form unless the package complies with, in all respects, the provisions of the Act and these rules.

[(2) No retail dealer or other person including manufacturer, packer and wholesale dealer shall make any sale of any commodity in packaged form at a price exceeding the sale retail price thereof].

Comment

(1)[Explanation.- For the removal of doubts, it is hereby declared that a sale, distribution or delivery by a wholesale dealer to a retail dealer or other person is a "retail sale" within the meaning of this sub-rule.]

[(3) ***](Omitted by GSR No.105 (E) dated 2-3-1995)

[(4) Where, after any commodity has been pre-packed for sale, any tax payable in relation to such commodity is revised, the retail dealer or any other person shall not make any retail sale of such commodity at a price exceeding the revised retail sale price, communicated to him by the manufacturer, or where the manufacturer is not the packer, the packer and it shall be the duty of the manufacturer or packer, as the case may be, to indicate by not less than two advertisements in one or more newspapers and also by circulation of notices to the dealers

(2)and to the Director in the Central Government and Controller of Legal Metrology in the States and Union Territories, the revised prices of such packages but the difference between the price marked on the package and the revised price shall not, in any case, be higher than the extent of increase in the tax or in the case of imposition of fresh tax higher than the fresh tax so imposed:

Provided that publication in any newspaper, of such revised price shall not be necessary where such revision is due to any increase in, or in imposition or, any tax payable under any law made by the State Legislatures:

Provided further that the retail dealer or other person, shall not charge such revised prices in relation to any packages except those packages which bear marking indicating that they were prepacked in the month in which such tax has been revised or fresh tax has been imposed or in the month immediately following the month aforesaid:

Provided also that where the revised prices are lower than the price marked on the package the retail dealer or other person shall not charge any price in excess of the revised price, irrespective of the month in which the commodity was pre-packed].

(5) Nothing in sub-rule (4) shall apply to a package which is not required, under these rules to indicate the month and the year in which it was pre-packed.
(6) No retail dealer or other person shall obliterate, smudge or alter [the retail sale price], indicated by the manufacturer or the packer, as the case may be, on the package or on the label affixed thereto.
[(7) The manufacturer or packer shall not alter the price on the wrapper once printed and used for packing.]

24. Procedure for examination of and determination of quantity and error in packages at the premises of the manufacturer or packer.-
(1) With a view to ascertaining whether any package or batch of packages complies with the provisions of these rules in all respects, the Director or any other person authorised under Sec. 29 hereafter referred to as in these rules, the authorised person may examine the packages and carry out the tests at the premises of the manufacturer or, where the manufacturer is not the packer, of the packer, and when he carries out such examination or tests, he shall draw samples from such batch of packages, in such manner and in such number as are specified in the Ninth Schedule and the tests aforesaid shall be carried out in accordance with the method specified in the Tenth Schedule.
(2) The Director or the authorised person shall enter, in the Form set on in the Eleventh Schedule, the detailed results of the tests carried out by him under sub-rule (1) and shall obtain, on the said Form, the signature of the manufacturer or, as the case may be of the packer, or his authorised agent, or, in the absence of both, or on their refusal to affix such signature, the signature of a competent witness. A copy of the data sheet containing the results shall be given to the manufacturer or packer, as the case may be.
(3) On the completion of the examination and tests carried out under sub-rule (1), the Director or the authorised person shall make a report indicating therein his findings with regard to the declarations required to be made under these rules and as to the net quantity actually contained in the sample packages and the extent or error, if any, noticed by him and furnish a copy of such report to the manufacturer or the packer, as the case may be.
(4) If it appears from the report referred to in sub-rule (3) that -
(a) the statistical average of the net quantity contained in the packages drawn as samples is lesser than the quantity declared on the packages or on the labels affixed thereto ; or
(b) the number of packages, showing an error in deficiency greater than the maximum permissible error, is more than [the number specified in column 3 of the Table in the Ninth Schedule] ; or
(c) any such package shows an error in deficiency greater than twice the maximum permissible error, the Director or the authorised person, shall, if for good and sufficient reason, requested by the manufacturer or packer or his authorised agent, so to do, take out as soon as may be practicable, fresh samples and carry out fresh tests in accordance with the provisions of these rules and where fresh tests are made, the Director or the authorised person, as the case may be, shall collect by way of reimbursement, from the manufacturer or packer, such sum, not exceeding rupees [five hundred], as is, in his opinion, commensurate with the services so rendered:

Provided that where fresh tests are carried out, no package contained in the batch, which was previously tested under this rule, shall be sold or distributed by the manufacturer or packer, as the case may be, unless the provisions of sub-rule (5) or as the case may be of sub-rule (6), are complied with.

(5) (a) Where, as a result of any test carried out under this rule, it is found that any package contained in the batch does not conform to all or any of the provisions of the Act, or of these rules, the manufacturer or the packer shall make a cent per cent, check of the packages contained in the batch and pick out from the batch the packages which conform to all the provisions of the Act and of these rules.
(b) When the Director or the authorised person is satisfied that the packages picked out by the manufacturer or packer conform to all the provisions of the Act and of these rules, he shall authorise the sale, distribution or delivery, of such packages.
(c) Where, as a result of such cent percent, check by the manufacturer or packer, any package is found to be not conforming to all or any of the provisions of the Act of these rules, such package shall not be sold, distributed or delivered until it has been re-packed, re-processed or re-labeled, as the case may be, in accordance with the provisions of the Act and of these rules.

(6) A batch of package shall be approved for sale if, and only if, as a result of the tests carried out under this rule, it is found that -
(a) the statistical average of the net quantity contained in the sample packages is equal to, or more than, the quantity declared on the package or on the label affixed thereto.
(b) the number of packages, showing an error in deficiency greater than the maximum permissible error, is not more than [the number specified in column 3 of the Table in the Ninth Schedule].
(c) the extent of error in deficiency in none of such sample packages exceeds twice the maximum permissible error, and
(d) each such package bears thereon or a label affixed thereto - the declarations required to be made under these rules.

25. Action to be taken on completion of examination of packages at the premises of the manufacturer or the packer.- (1) If it appears from the report referred to in sub-rule (3) of rule 24 that -

(a) statistical average of the net quantity contained in the packages drawn as samples under that rule is lesser than the quantity on the package or on the label affixed thereto, or
(b) the number of packages, showing an error in deficiency greater than the maximum permissible error, is more than [the number specified in column 3 of the Table in the Ninth Schedule.].
(c) any such package shows an error in deficiency greater than twice the maximum permissible error, or
(d) any such package does not bear thereon or on a label affixed thereto the declaration to be made under these rules, the Director or the authorized person shall take punitive action in accordance with the provisions of the Act against the manufacturer or as the case may be, the packer [**]:

Provided that no such punitive action shall be taken in fresh tests are carried out under sub-rule (4) of rule 24, but if after such fresh tests any such error or omission as is referred to in this sub-rule is detected, the Director or the authorized person shall take appropriate punitive action in accordance with the provisions of the Act against the manufacturer or, as the case may be, the packer.

(2) Before taking any punitive action sub-rule (1) the Director or the authorised person shall seize, in accordance with the provisions of the Act, the packages drawn by him as samples and shall take adequate steps for the safe custody of the seized packages until they are produced in the appropriate Court as evidence.
(3) The disposal of the seized packages shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).

26. Action to be taken with regard to packages examined at the premises of the wholesale dealer or retail dealer.-
(1) Ordinarily, any test in relation to the net quantity contained in a package shall not be carried out at the premises of the retail dealer or the wholesale dealer, unless, -
(i) a complaint is received by the Director or the authorised person to the effect that the package sold or delivered to the complainant does not contain the quantity declared on such package or on the label affixed thereto ;
(ii) the Director or the authorised person has reason to suspect that any package has been tampered with or that there has been pilferage or leakage of the commodity contained in the package ;
(iii) the Director or the authorised person has reason to suspect that any package, or any label affixed thereto, does not bear thereon all or any of the declarations, which are required to be made under these rules.

(2) Where any test is carried out in pursuance of the provisions of sub-rule (1), the Director or the authorised person shall verify whether the quantity contained in the package corresponds to the quantity declared on such package or any label affixed thereto, and where the quantity contained in the package is less than the declared quantity, whether the deficiency is more than twice the maximum permissible error in relation to the commodity.
(3) Where the Director or the authorised person finds on a test carried out under this rule that the error in deficiency in any package kept or stored for sale, distribution or delivery at the premises of the retail or wholesale dealer, is more than twice the maximum permissible error in relation to the commodity he shall seize such package and take appropriate action against the retail dealer or the wholesale dealer, as the case may be, in accordance with the provisions of the Act:

Provided that where the package bears the legend "when packed", no punitive action shall be against the retail dealer or wholesale dealer if the Director or the authorised person is satisfied after necessary tests, that the deficiency in the quantity contained in the package is due to environmental conditions.

(4) Where, as a result of any test made under this rule, it is found that the net quantity contained in the package conforms to the declared quantity or where there is a deficiency such deficiency is not more than twice the maximum permissible error, the retail dealer shall be at liberty to sell or deliver or distribute such commodity at the price determined on the basis of the quantity found on such tests.
(5) Where, as a result of any test made under this rule, it is found that any package or any label affixed thereto, does not bear thereon all or any of the declarations required to be made under these rules, it shall be lawful for the Director or the authorised person to make such inquiries as to the source from which such package was received by the wholesale dealer or retail dealer and to take such punitive action against the wholesale dealer or the retail dealer, as the case may be, as he may think fit.

27. Establishment of maximum permissible error on package.- (1) The maximum permissible error in relation to the commodities specified in the First Schedule shall be such as is indicated in the corresponding entries in that Schedule against the concerned commodity and the maximum permissible error in relation to any commodity not specified in the First Schedule, shall be such as is specified in the Second Schedule:

Provided that the Director may establish the maximum permissible error in relation to any commodity not specified in the First Schedule, and on such establishment the concerned commodity and the maximum permissible error in relation thereto shall be deemed to have been included in the First Schedule.
(2) The Director shall cause a co-ordinated programme to be undertaken, at such places and in such manner as he may think fit for the establishment of the maximum permissible error in relation to commodities referred to in sub-rule (1) or the provisions thereto.

(3) While establishing the maximum permissible error in relation to the net quantity of commodities contained in the packages, due account shall be taken of the following cause which may lead to variation in the quantity, namely:
(a) variations caused by unavoidable deviations in weighing, measuring or counting the contents of individual packages that may occur in good packaging practice.
(b) variations caused by the ordinary and customary exposure to conditions, such as, climate, transport, storage or the like that normally occur in good distribution practice after the commodity is introduced in trade or commerce, and
(c) variations due to the nature of packaging material or container.

(4) The Director shall determine, or cause to be determined, in relation to any commodity, the declaration in respect of the net quantity of which is permitted to be qualified by the words "when packed", the reasonable variations which may take place by reason of the environmental conditions.

28. Deceptive packages to be re-packed or in default to be seized.- (1) If, on the determination of the quantity contained in the sample packages, the Director or the authorised person finds that the quantity contained in the package agrees with the declaration of the quantity made on the package of label thereon but the package is a deceptive package, he shall require the manufacturer or the packer, as the case may be, to re-pack and to re-label such package and in the event of the omission or failure on the part of the manufacturer or the packer, as the case may be, to re-pack or re-label such deceptive package, in accordance with, the standards established by or under these rules, seize them, take appropriate punitive action in accordance with the Act and take adequate steps for the safe custody of such package until they are produced in a Court as evidence.

Explanation.- For the purposes of this rule, "deceptive package" means a package which is designed as to deliberately give to the consumer an exaggerated or misleading impression as to the quantity of the commodity contained therein, except where bigger dimensions of the package can be justified by the manufacturer or packer, as the case may be, on the ground that such dimensions are necessary for giving protection to the commodity contained in such package or for meeting the requirements of the machine used for filling such package.

(2) If the seized packages contain any commodity which is subject to speedy or natural decay, the Director or the authorised person shall dispose of the commodity in accordance with the rules made under the Act.

CHAPTER III
Provisions Applicable to Wholesale Packages

29. Declarations applicable to be made on every wholesale package.- (1) 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 the standard units of weight, measure 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 that time being in force.]

CHAPTER IV
Export and Import of Packaged Commodities

30. Declarations on packages intended for export.-
(1) In this Chapter, "export package" means a package intended for export.
(2) Every export package shall, notwithstanding anything contained in rule 6, bear on its principal display panel a legible and conspicuous declaration with regard to the following matters, namely :
(i) it is intended for export ;
(ii) the identity of the commodity contained in the export package and the net weight, measure or number of such commodity ;
(iii) the name and address of the manufacturer, and where the manufacturer is not the packer, of the packer.

(3) Where an export package contains two or more individually packaged or labeled pieces of the same or different commodities, such export package shall also bear on its principal display panel a legible and conspicuous declaration with regard to the following matters, namely:
(i) the number and description of such individually packaged commodities ; and
(ii) the net weight, measure or number of the commodities contained in such individual package.

(4) The Director or any other person authorised by the Director may inspect, or cause to be inspected, any package intended for export with a view of ascertaining whether the declarations as to the net weight, measure or number on the packages are accurate, and if the Director or authorised person is of the opinion that the declaration with regard to such matters is not correct or is false in material particulars, bring the matter to the notice of -
(i) where such checking is made in the premises of the manufacturer or packer.-
(a) the appropriate officer of customs ; and
(b) the Ministry dealing with the export of the concerned commodity:

(ii) where the checking is made at or near the custom stations.-
(a) the appropriate officer of customs ; and
(b) the Ministry dealing with the export of the concerned commodity, for such action as they may think fit.

(5) Where the person to whom any package is to be exported does not want any indication on the package to the effect that it is intended for export or that the name of the manufacturer or packer should be mentioned on the package. It shall be lawful for the manufacturer or packer to pack such commodity without complying with the provisions of sub-clause (i) or sub-clause (ii) or both, of sub-rule (2).

31. Export packages also to comply with the laws of the country to which, they are being exported.- Every export package shall comply with the laws and regulations in force in the country to which such package is intended to be exported.

32. Restrictions on sale of export packages in India.- An export package shall not be sold in India unless the manufacturer, or packer has re-packed or re-labeled the commodity in accordance with the provisions contained in Chapter II; and where any export package is sold in India without such re-packing or re-labeling, such package shall be liable to be seized in accordance with the provisions of the Act.

33. Provisions applicable to packaged commodities imported in India.-

(1) All pre-packed commodities imported into India shall carry the following declarations:-
(i) Name and address of the importer,

Explanation I: An importer is an individual company or from whose name figures in the bill of lading/import documents as the importer.
Explanation II: For the purpose of these rules, the importers premises/address shall be taken as the manufactures/packers premises/address.

(ii) generic or common name of the commodity packed,
(iii) net quantity in terms of standard unit of weight or measure. If the net quantity in the imported package is given in any other unit, its equivalent in terms of standard units shall be declared by the importer;
PROVIDED that the standard sizes prescribed under schedule III shall not apply to imported packages;
(iv) month and year of packing in which the commodity is manufactured or packed or imported;
(v) retail sale price as per clause (r) of rule-2
(2) Responsibility for making mandatory declarations as required in sub-rule(1) shall rest with the importer.
(3) the declaration shall be made in the following manner,
(i) all the declarations may be pointed on a lable securely affixed to the package; or
(ii) all the declarations may be made on an additional wrapper and imported package may be kept inside the additional wrapper; or
(iii) all declaration may be printed on the package itself ; or
(iv) declarations may be made on a card or tape affixed firmly to the package or container and bearing the required information.
(4) The provisions of rules 16 to 20, rules 23 to 28, of chapter II, rule 29 of chapter III, rule 34 of chapter v, rule 35 to 38 of chapter vi and rules 39 to 40 of chapter shall be applicable for the imported packages.]

CHAPTER V
Exemptions

34. Exemption in respect of certain packages.-
(1) Nothing contained in these rules shall apply to any package containing a commodity if -
(a) the marking on the package unambiguously indicates that it has been specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing any industry, mine or quarry:
Provided that this exemption shall not be available in respect of -
(i) any yarn which is sold in hanks to handloom weavers ;
(ii) any component, part or material used in any workshop, service station or any other place where servicing or repairing of any bicycle, tricycle, or motor vehicle within the meaning of the Motor Vehicle Act, 1939, (4 of 1939) is undertaken ;
[(iii) any package containing a commodity of net content of 5 kilograms or 5 litres or less and displayed for sale at the retail outlet ;
(iv) any package containing a commodity to be sold by number or length and displayed for sale at the retail outlet ;]
(b) the net weight or measure of the commodity is twenty grams or twenty millilitres or less, if sold by weight or measure:

[Provided that this exemption shall not apply to packages containing any drug or medicine.]:
[Provided that the declaration in respect of maximum retail price and net quantity shall be declared on packages containing 109 to 209 or 10 ml to 20 ml.]
[(c) [Omitted by no. G.S.R. 140(E) dt. 7.3.1997]
[(d) any package containing fast food items packed by restaurant/hotel and the like; ]
[(b) drugs covered under the Drugs (Price Control) Order, 1995].

CHAPTER VI
Registration of Manufacturers and Packers

35. Registration of manufacturers and packers.- (1) Every individual, firm, Hindu undivided family, society, company or corporation who or which pre-packs any commodity for sale, distribution or delivery shall make an application accompanied by a fee of [rupees twenty], to the Director for the registration of his or its name and complete address ; and every such application shall be made.-

(i) in the case of an applicant pre-packing any commodity at the commencement of these rules, within ninety days from such commencement; or
(ii) in the case of any applicant who or which commences pre-packing of any commodity after the commencement of these rules, within ninety days from the date on which he or it commences such pre-packing.
(2) Every application referred to in sub-rule (1) shall contain the following particulars, namely:
(a) the name of the applicant;
(b) the complete address of the premises at which the pre-packing of one or more commodities is made by the applicant; and
(c) the name of the commodity or commodities pre-packed by the applicant.
Explanation.- In the sub-rule, "complete address" has the meaning assigned to it in the explanation to sub-rule (1) of rule 10.

36. Registration of shorter address permissible.- (1) It shall be lawful for any manufacturer or packer to make an application to the Director for the registration of a shorter address, in addition to the complete address referred to in sub-rule (2) of rule 35.
(2) The Director may, if he is satisfied after inquiry that the shorter address is sufficient to enable the consumer or any other person to identify the manufacturer or the packer, register such shorter address.
(3) Where a shorter address is registered by the Director, it shall be lawful for the manufacturer or packer to state such shorter address on the label of each commodity pre-packed by him or it.

37. Register of manufacturers and packers, etc.-
(1) The Director shall enter in a register, to be maintained by him for the purpose, the name and complete address of each manufacturer or packer by whom application for such registration has been made to him under rule 35.
(2) The register referred to in sub-rule (1) shall be opened to the inspection of the public without the payment of any fee.

38. Compilation of lists of manufacturers or packer and their circulation.- The Director shall compile a State-wise list of the manufacturers and packers registered by him under rule 37 and shall circulate such list to the Controller of the concerned State to enable the Controller to take or cause to be taken, samples at the premises of the manufacturer or where the manufacturer is not the packer, of the packer.

[39. Penalty for contravention of rules.- (1) If any person contravenes the provisions of rule 6, or tampers with, obliterates or alters any declaration made on any package in accordance with these rules, he shall be punishable with fine, which may extend to two thousand rupees.
(2) Whoever contravenes any provisions of these rules, for the contravention of which no punishment has been separately provided either in the Act or in these rules, he shall be punished with fine which may extend to two thousand rupees.]

40. The Central Government may, if it is satisfied, on the genuineness of the reasons stated in the application, may permit a manufacturer or packer to pack for sale the following types of pre-packed commodities for a reasonable period, relaxing any or all the provisions of these rules.-
(i) introductory packs ;
(ii) innovation packs ;
(iii) trial packs ;
(iv) promotional packs ;
(v) packages on which corrective actions are to be taken after compounding or a Court decision or other genuine reasons.]

FIRST SCHEDULE
[See rile 2(1)]
Maximum permissible errors in relation to the quantity contained in the Individual Package

Sl. No.	Description of Commodity	Quantity declared	Maximum permissible error
1.	Biscuits	(i) Up to and equal to 500 g	7.0%
		(ii) Above 500 g	6.0%
2.	Bread	(i) Up to and equal to 400 g	8.0%
		(ii) Above 400 g up to and equal to 800 g	6.0%
		(iii) Above 800 g up to and equal to 1200 g	4.0%
3.	Cement	[For any quantity]	2.0%
4.	Detergents cleaning/scouring powder and the like	(i) Up to and equal to 1 kg	5.0%
		(ii) Above 1 kg up to and equal to 3 kg	4.0%
		(iii) Above 3 kg	1.5%
5.	Face Cream	(i) Up to and equal to 25 g	4.0%
		(ii) Above 25 g up to and equal to 100 g	4.0% or 2.5 g whichever is less
		(iii) Above 100 g	3.0%
6.	Ghee, vanaspati and edible oils	(i) Up to and equal to 1 kg/litre	2.0%
		(ii) Above 1 kg/litre up to and equal to 2 kg/litre	1.50%
		(iii) Above 2 kg/litre up to and equal to 4 kg/litre	1.25%
		(iv) Above 4 kg/litre	0.60%
7.	Hair Cream	(i) Up to and equal to 100 g	- 5g
		(ii) Above 100 g up to and equal to 200 g	5.0% or 7 g whichever is less
		(iii) Above 200 g	5.0% or 10g whichever is less
8.	Infant food including malted milk foods	(i) Up to and equal to 100	5.0%
		(ii) Above 100 g up to and equal to 1 kg	4.0%
		(iii) Above 1 kg	3.0%
9.	Liquid milk	(i) Up to and equal to 100 ml	- 5 ml
		(ii) Above 100 ml up to and equal to 250 ml	- 8 ml
		(iii) Above 250 ml	- 10 ml
10.	Provisions sold in Polythene bags or plastic bags, Food grains, pulses, edible seeds, spices (whole or broken but not powdered), powdered commodities (such as chili powder, pepper powder, coffee powder, washing soda, atta, table salt and the like), dry fruits seeds and other commodities (such as sugar, gur, khandsari, and like)	(i) Up to and equal to 100 g	3.0%
		(ii) Above 100 g up to and equal to 500 g	2.0%
		(iii) Above 500 g up to and equal to 1 kg	1.5%
		(iv) Above 1 kg	0.75%
11.	Safety match boxes	(i) containing up to 50 sticks	8.0%
		(ii) containing more than 50 sticks	6.0%
12.	Shaving cakes/sticks	For all quantities	3.0%
13.	Shaving cream	(i) Up to and equal to 50 g	- 1 g
		(ii) Above 50 g up to and equal to 100 g	- 2 g
14.	Soap chips	(i) Up to and equal to 1 kg	1.0%
		(ii) Above 1 kg up to and equal to 3 kg	3.0%
		(iii) Above 3 kg	0.2%
15.	Talcum and face powder	(i) Up to and equal to 50 g	6.5%
		(ii) Above 50 g up to and equal to 100 g	4.0%
		(iii) Above 100 g up to and equal to 300 g	3.0%
		(iv) Above 300 g	2.5%
16.	Tea	For all quantities	2.0%
17.	Toilet soaps	For all quantities	3.0%
18.	Tooth paste	(i) Up to and equal to 50 g	5.0%
		(ii) Above 50 g up to and equal to 125 g	4.0%
		(iii) Above 125 g	3.0%
19.	Tooth powder	(i) Up to and equal to 100 g	8.0%
		(ii) Above 100 g	8.0% or 15 g whichever is less
20.	Washing soap	(i) Up to and equal to 150 g	4.5%
		(ii) Above 150 g up to and equal to 300 g	4.0%
		(iii) Above 300 g	3.0%
[21.	Writing and printing paper	For any quantity	2.5%]
22.	Wrapping paper (including packing paper)	For any quantity	5.0%

Maximum Permissible Error in relation to Packaged Commodities not specified in the First Schedule
1. Maximum permissible error on net quantity declared by weight or volume,-
(1) The maximum permissible error, in excess or in deficiency, in the net quantity by weight or volume of any Commodity not specified in the First Schedule, shall be as specified in Table 1 below:-

TABLE 1
Maximum Permissible Errors on Net quantities declared by weight or by volume.

Sl. No.	Declared quantity g or ml	Maximum permissible error in excess or in deficiency
Sl. No.	Declared quantity g or ml	As percentage of declared quantity	g or ml
(i)	5 to 50	9	....
(ii)	50 to 100	....	4.5
(iii)	100 to 200	4.5	....
(iv)	200 to 300	....	9
(v)	300 to 500	3	....
(vi)	500 to 1000	....	15
(vii)	1000 to 10000	1.5	....
(viii)	10000 to 15000	....	150
(ix)	More than 15000	1.0	....

Maximum permissible errors on net quantities declared by length, area or number.

Sl. No.	Quantity declared	Maximum permissible error in excess or in deficiency
(i)	In units of length	2% of declared quantity upon 10 metres and thereafter 1% of declared quantity.
(ii)	In units of area	4% of declared quantity upon 10 sq. metres and thereafter 1% of declared quantity.
(iii)	by number	2% of declared quantity.

[THE THIRD SCHEDULE
(See rule 5)
Commodities to be packed in specified quantities

1. The following commodities shall be packed in such quantities by weight, measure or number as are specified in the corresponding entries against them.

Sl. No.	Commodities	Quantities in which to be packed
1.	2.	3.
1.	Baby food.	200g, 500g, 1kg, 2kg, 5kg and 10kg Any manufacturer or packer baby food in 400g and weaning food in 500g shall not be allowed to do so beyond 180 days from the date of publication of this notification in the Official Gazette.
2.	Weaning Food	200g, 500g, 1kg, 2kg, 5kg and 10kg.
3.	Biscuits	25g, 50g, 75g, 100g, 150g, 200g, 250g, 300g and thereafter in multiples of 100g up to 1kg.
4.	Bread including brown bread but excluding bun	100g, 200g, 400g, 800g, 1200g.
5.	Uncanned packages of butter and margarine	25g, 50g, 100g, 200g, 500g, 1kg, 2kg, 5kg and thereafter in multiples of 5kg.
6.	Cereals and Pulses	100g, 200g, 500g, 1kg, 5kg and thereafter in multiples of 1kg.
7.	Coffee	25g, 50g, 100g, 200g, 500g, 1kg and thereafter in multiples of 1kg.
8.	Tea	25g, 50g, 100g, 250g, 500g, 1kg and thereafter in multiples of 1kg.
9.	Materials which may be reconstituted as beverages.	25g, 50g, 100g, 200g, 500g, 1kg and thereafter in multiples of 1kg.
10.	Edible oils, Vanaspati, Ghee, butter oil	50g, 100g, 200g, 500g, 1kg, 2kg, 5kg and thereafter in multiples of 1kg.

If the net quantity is declared by volume the same number in milliliters or litres, as the case may be, if the net quantity is declared by volume then the equivalent quantity in terms of mass to be declared in bracket, in same size of letters/numerals, or vice-versa].