G.S. Singhvi, J. - (1.) IN this writ petition duly filed by M/s. Jaipur Polyspin Limited, its Managing Director, General Manager and the Factory Manager, under Article 226 of the Constitution of India, prayer has been made to summon the record of the respondents and to restrain respondent No. 4 from conducting any investigation or taking any steps in the exercise of powers Under Section 156 of the Code of Criminal Procedure, on the basis of the report lodged by respondent No. 1 and 2 or any of their subordinate officials. It has also been prayed that any action taken by respondent No. 4 pursuant to the said report may be declared illegal and unconstitutional and may be quashed.
(2.) PETITIONER No. 1 is a Company incorporated under the Companies Act, 1956 and is engaged in the business of manufacturing synthetic yarn. It has its factory at Reengus in district Sikar. The yarn manufactured by the petitioner is meant solely for industrial consumption and is used for the purpose of making fabric/cloth by industries. It has licence under the provisions of the Industries (Development & Regulation) Act, 1951. Petitioner No 2 is its Managing Director. Petitioner No 3 is the General Manager and petitioner No. 4 is the Factory Manager of the Company. The Petitioner has stated that on 13.6.89 certain persons claiming themselves to be the Inspecting Staff of the Regional Office of the Textile Commissioner visited the factory of the petitioner company for inspection. They drew sample of yarn from lot No 917. A show cause notice was issued on 14.8.89 by the Director of the Regional Office of the Textile Commissioner at Ahmedabad, calling upon the petitioner to let the said authority know the reason for incorrect declaration as well as the names of persons responsible for incorrect declaration in respect of the yarn manufactured by the petitioner Company. In the said notice it has been stated that samples drawn from the petitioner mill were sent for laboratory test for ascertaining the percentage in yarn. The test report of the Laboratory and the declaration/marking made by the million the yarn and as per record of the mill it was found that the percentage/composition are different. It has been stated in the notice that the declarations made by the petitioner company amount to violation of the provisions contained in Clause 10(C) of the Notification dated 7.3.88 and Clause (17) of the Textiles (Control) Order 1986 (hereinafter referred to as 'the order'), issued under the Essential Commodities Act, 1955. It was, therefore, proposed to take action for prosecution Under Section 10 and for penalty Under Section 7 of the Essential Commodities Act 1955 (hereinafter referred to as 'the Act'), The petitioner, have stated that after receipt of the communication dated 14.8.89, they got the sample of yarn from the sample tested at the Ahmedabad Textile Industries Research Association Laboratory (for short 'ATIRA'), and its report dated 25.6.89. The polyester content of the yarn is 46.2% and the Viscose content thereof is 53.8% The petitioner has stated that according to this report there is no inconsistency between the percentage of composition of yarn found by ATIRA and the declaration to that effect given by the petitioner company. A detailed representation was submitted by the petitioner company to the Director, Regional Office of the Textile Commissioner, Ahmedabad on 26.8.89. Along with the representation a copy of its report sent by the ATIRA was also enclosed and it was stated that the declaration given by the petitioner and the test report given by ATIRA were well within the permissible limits of 5% as specified by notification No. 2937 dated September 20, 1962 issued by the Ministry of Commerce and Industry Under Section 95 of the Trade and Merchandise Marks Act, 1958. On that premise it was claimed that there has been no violation of the provisions of the Act or the order or the Regulations issued by Notification dated 7.3.88. The further submission of the petitioners is that without objectively considering the facts and circumstances, the respondent No. 1 and 2 have lodged a complaint/report to respondent No. 4 (Station House Officer, Police Station, Reengus, District Sikar, Rajasthan), seeking prosecution of the petitioners for the alleged offence Under Section 3/7 of the Act and the respondent No. 4 on his part has decided to register a report and commence investigation. According to the petitioners, since the report in question has been lodged by respondent No. 1 and 2 under the colour of public offence, therefore, consequential investigation and prosecution in pursuance of such report is a foregone conclusion. 3. The petitioners have challenged the lodging of report/complaint by respondent No 1 and 2 on the ground that the provisions contained in Textiles (Consumer protection) Regulation 1988, cannot be construed as part of the order & alleged violation of these regulations cannot construe foundation for initiating action for prosecution Under Section 3/7 of the Act. The alleged contravention of Clause (10) of the Regulations of 1988 does not amount to an offence punishable Under Section 7 of the Act and, therefore, the threatened prosecution of the petitioners is without jurisdiction. The notice dated 14.8.89 does not make out a fake or misleading declaration on the part of the petitioner company. The alleged variation in the actual content of polyester and viscose in the said yarn is wholly inconsequential. It neither affects the quality of the said yarn nor the value thereof. The trust report given by ATIRA shows that the declaration made by the petitioner company with respect to the yarn manufactured by it is correct. The so called variation pointed out in the communication dated 14.8.898 is perfectly within the permissible limits prescribed by Central Government under its Notification issued Under Section 95 of the Trade and Merchandise Marks Act, 1958.
(3.) THE respondents No. 1 and 2 have contested writ petition In para 2 of their reply respondents No. 1 and 2 have staled that according to the Industrial licence issued by the petitioner company on 23.9.85 (part 4) the industrial licence will be further subject to "production, specification and packing of yarn in accordance with the policy in force and the directions issued by the Textile Commissioner in this regard from time to time." The respondents have stated that every marking so specified of the yarn shall be subject to the relevant limits of variation contained in the instructions issued by the Central Government Under Section 95 of the Trade and Merchandise Marks Act, 1958 and also directions specified under Clause 3 of Textile (Consumer Protection) Regulation, 1988. The test referred to in Clause 3(F) of the Regulations is having reference to the standards prescribed by the Bureau of Indian Standards. According to the respondents one Technical Investigator duly appointed by the Government of India, holding identity to that effect visited the Mills as part of his assignment. The sample was drawn by the Technical Investigator during the course of his regular inspection of the Unit. The sample was sent for the Laboratory test and on the receipt of the report communication dated 14.8.89 was sent to the petitioner company. With reference to the test of the sample by ATIRA it has been stated according to Clause 6 Sub -section (5) of Regulations of 1988, a list of laboratories of Textile Committee and also several Research Associations have been notified wherein persons/organisations can get samples of tops/yarn/cloth tested on payment of Rs. 100/ - per sample. In such cases samples will have to be in its original condition and packing to the extent it is possible. This facility has been provided for the consumer or any registered voluntary consumer association who have any bonafide complaints and who are aggrieved person. This facility is not available to the manufactures. According to the respondents the Bureau of Indian Standard vide ISI No. 11195 -1985 has prescribed a tolerance limit of 3% on blend composition at para 22. For the purpose of samples the I.S.I, standard prescribed by Bureau of Indian standard has to be applied, which clearly specifies a tolerance of 3%. The tolerance limit prescribed Under Section 95 of Trade and Merchandise Marks Act 1958 have no bearing on the I.S.I, standards under which the samples are being tested by the laboratories. The respondents have also stated that it is not known as to from which lot the sample was drawn by the petitioner company for testing at ATIRA. The respondents have claimed that the writ petition filed by the petitioners is not maintainable. The petitioners have prima facie committed serious offence and are liable to be tried by a competent court & the respondent No. 4 has full jurisdiction to conduct investigation Under Section 156 of the Code of Criminal Procedure. Regulations of 1988 are within the frame work of the provisions of the Act and the order. The petitioner company has given incorrect declaration and the laboratory report shows that the declaration is fake and misleading. This action of the petitioner company amounts to violation of the provisions of the Textile Control Order 1986 and for that the petitioner is liable to be prosecuted. The respondents have asserted that the petitioners, if they have any objection to the maintainability of prosecution against them, they are free to raise all objections before the Court which may ultimately try them for the alleged offence. This Court will not interfere in such proceedings at this stage.;