In Re: Kandasamy

Sathar Sayeed, J.—The petitioner who was convicted under S. 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1958, and sentenced to pay a fine of Rs. 25 in default, to undergo simple imprisonment for one week, has filed the above revision.

The facts of the case are as follows : The Assistant Commissioner of Labour, Tirunelveli who has been examined as P.W. 1 in this case, appears to have inspected, on 28th June, 1978, the premises of the petitioner at Thatchanallur within the Sugar Mill Compound. P. W. 1 found that the petitioner was running a chicory factory. During his inspection, he found M.Os. 1 to 6 in the premises, which were not reverified and stamped within a period of one year after 1976 ''B'' Quarter. He seized them under an attached, Ex. P2 and also gave a copy to the petitioner. Later of, a show cause notice, Ex. P3 was issued to the petitioner for violating the rules mentioned therein. The petitioner sent a reply, Ex. P5 pleading for condonation to the allegations mentioned in Ex. P3. Thereafter, the respondent herein, after obtaining sanction, filed the present complaint against the petitioner under S. 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1958.

When the petitioner was questioned, he denied the offence, The petitioner contended that the premises owned by him comes under the provisions of the Tamil Nadu Shops and Establishments Act, that it cannot be termed to be a ''factory'' and that, if it is not a ''factory'' he will not be obliged to reverify and stamp the weights and measures. To substantiate his case, he produced certain records maintained by him to show that the premises comes within the purview of the Tamil Nadu Shops and Establishments Act. The prosecution tried to prove, that the petitioner is running a ''factory'' and that it cannot come within the purview of the Tamil Nadu Shops] and Establishments Act. Under R. 10(l) of the Tamil Nadu Weights and Measures (Enforcement) Rules, 1967, the following clause is found-''factory'' to which the Factories Act, 1948, applies''. While clarifying the clause, the Labour Commissioner stated that the Factories Act applies to a place which is deemed to be a factory under S. 85 of the Factories Act, and the case against the petitioner being under R. 10(l) of the Tamil Nadu Weights and Measures Rules, 1967, the premises run by the petitioner will come within the purview of" the Factories Act as the manufacturing process is carried on. It was also contended by the prosecution that the Tamil Nadu Government has issued a notification, G. O. Ms. No. 2909 (Lab), dated 9th September, 1967, Department of Industries, Labour and Housing, wherein item No. 4 of the said G. O. relates to flour milling and grinding of condiments. The contention of the prosecution is that the petitioner is running a factory where the manufactured product is only a ''condiment'' and that item No. 4 of the aforesaid G.O. is applicable. As far as the Notification is concerned, it was contended by the learned counsel appearing for the petitioner before the trial court, that, the existence of a flour milling unit alone is not sufficient for attracting the applicability of the Notification and it must also be a grinding unit of condiment. In short, the contention of the petitioner before the trial Court was that the premises owned by him comes within the purview of the Tamil Nadu Shops and Establishments Act and that the flour milling and grinding of condiments does not take place in, the premises but, on the other hand he prepares or manufactures only chicory and not a condiment. The trial court on an elaborate discussion, came to the conclusion that the petitioner''s premises comes within the purview of the Factories Act, that the petitioner has failed to reverify and stamp the weights and measures within a period of one year after 1976 and that, therefore the petitioner has violated S. 25 of the Tamil Nadu Weights Measures (Enforcement) Act, 1958. The petitioner, under the circumstances, was found guilty and was convicted under the aforesaid section and sentenced to pay a fine of Rs. 25 in default, to suffer simple imprisonment for one week. Against the conviction and sentence, the petitioner has preferred the above criminal revision.

The learned counsel, Mr. Subranvniam, appearing for the petitioner, contends before me, that item No. 4 of the G.O. Ms. No. 2909 (Lab), dated 9th September, 1967, Department of Industries, Labour and Housing, relates to flour milling and grinding of condiments and, since the petitioner is not producing or manufacturing condiments in his premises, but only chicory, the petitioner cannot be convicted under S. 25 of the Tamil Nadu Weights and Measures (Enforcement) Act. To substantiate his case, he distinguishes ''condiment'' from ''chicory''. The learned counsel contends that chicory is not condiment. This leads us to go into the question whether chicory is a condiment.

In Corpus Juris Secundum, Volume XV, by William Mack and Donald, J. Kiser, ''condiment'' is described as under:

A pungent and appetizing substance, as pepper or mustard; a seasoning, or something used to give relish to food and to gratify the taste, and has been held to embrace radishes and truffles; but not chewing tobacco.

In Words and Phrases, Volume VIII, by St. Paul, Minn., West Publishing Co., it is stated.

A condiment is something used to give a relish to food and to gratify the taste, usually a pungent and appetizing substance, as pepper or mustard, seasoning.

It is also stated that a ''condiment'' is a ''food, and not a ''medicine'', and that chewing tobacco is not a food. ''Condiment'', according to Webster and as is generally understood, is something used to give relish to food and to gratify the taste, a pungent and appetizing substance, seasoning. According to the Shorter Oxford English Dictionary, ''condiment'' is anything of pronounced flavor used as a relish or to stimulate the appetite". So, from these definitions, it is clear that a ''condiment'' is an appetizing substance and even pepper is condiment. Chicory is mixed with coffee to give relish. It is nothing but a condiment. In other words ''chicory'' is one in the family of ''condiment''. In the circumstances, the contention of the counsel that ''chicory'' is not a ''condiment'', is without substance. It is not disputed as it has been pointed out by the trial court, that, grinding of chicory is being carried on in the premises of the petitioner and it cannot also be disputed that this process is being carried on with the aid of flour milling. So, under the circumstances, item No. 4 of aforesaid G.O. is applicable to the premises of the petitioner with all force.

The next contention of the learned counsel appearing for the petitioner is that the conviction of the petitioner under S. 25 of the Tamil Nadu Weights and Measures (Enforcement) Act, 1958, as amended, is not proper as the said section is not applicable to the facts of this case, for, Explanation I of S. 25 of the said Act contemplates that

If any such weight or measure or weighing instrument is found in the possession of any trader or any employee or agent of such trader, such trader, employee or agent shall be presumed, until the contrary is proved, to have had it in his possession for use in transactions for trade, business or commerce.

On the basis of Exp. I of S. 25 the learned counsel contends that the weights and measures which were seized by P.W.I and marked as M.Os. l to 6 were not being used in the petitioner''s business and, that, in the absence of the contra evidence on behalf of the prosecution to show that the said M.Os. l to 6 were being used by the petitioner for the purposes of his business, the petitioner cannot be charged and convicted under the aforesaid section. This argument is unsound and is also unsustainable. What Explanation I to S. 25 contemplates is that the weights and measures found in possession of the petitioner, if seized, will be presumed that such weights and measures were being used by the petitioner. When P.W. 1 went to the petitioner''s premises, the petitioner has stated that M.Os 1 to 6 seized by P.W. 1 were not being used by the petitioner. That itself is not sufficient, for, the said Explanation contemplates that the fact that the weights and measures were not being used in the petitioner''s business should be proved by the petitioner and not by the prosecution, for, it is the petitioner, who seeks to take advantage of the said Explanation and asserts that the weights and measures which were seized were not being used in his business. In this case, excepting the self-serving evidence of the petitioner, no other witness has been examined or any evidence has been let in to show that M.Os. 1 to 6 were not being used by the petitioner. In the absence of any specific evidence, excepting the evidence of the petitioner, which the trial court did not believe and so do I, the argument of the learned counsel ''that the petitioner comes within Explanation I to S. 25, has no merit.

I have gone through the judgment in this case and, on the whole, I find that the trial court has discussed everything in detail and I do not find any illegality or perversity in the judgment of the trial court to warrant my interference, since the findings of the trial court are based on sound reasoning. Hence this criminal revision is dismissed.