TMI Blog2012 (12) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... any has set up an industrial unit for manufacturing Measuring Tapes . The petitioners are said to have been directly affected by Section 33 of the Legal Metrology Act, 2009 (for short the Act ), hence they question its constitutionality on the anvil of Articles 14, 19 and 21 of the Constitution. 3. The Statement of Objections and Reasons of the Act placed on record by the petitioners (Annexure P-4A) reveals that India is signatory to the Metre Convention and is a member of General Conference of Weights and Measures ( CGPM ) as also the International Organization of Legal Metrology ( OIML ). Since CGPM have revised the standards of weight and measures and corresponding changes in law have been suggested by the OIML, that the Central Government constituted a Committee comprising technical and statistical experts. The Committee recommended for establishment of Standards of Weights and Measures of SI units and numeration based on international form of Indian Numerals. To give effect to those recommendations and with an object to regulate inter-State trade and commerce in weights and measures and the commodities sold, distributed or supplied, that the Parliament enacted the Legal M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The petitioners have placed on record the Model Draft Legal Metrology (Enforcement) Rules of 2010 and 2011 (Annexures P6 P7, respectively), to be notified by the States and Union Territories in exercise of their powers under Section 52 of the Act. In addition, the Licence-Form comprising Form LM-3 which contains the conditions of licence including Condition No. 1(f) mandating that the person in whose favour this licence is issued shall present the weights, measures, weighing or measuring instruments, as the case may be, manufactured and meant for use within the State, to the Legal Metrology Officer for verification and stamping before sale is also appended with the petition. 8. The petitioners have brought on record a Circular dated 31-5-2012 (Annexure P-14) of the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, addressed to the Controller of Legal Metrology of all the States/UTs whereby guidelines for the first verification of weights and measures and weighing and measuring instruments have been laid down. The Circular is meant to reduce the hardship of manufacturers and to adopt a uniform procedure throughout the country so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation would violate the fundamental rights of such manufacturer. 13. The aforesaid contention(s), however, does not appeal to us. We say so for the reasons that, firstly, Section 24(1) of the Act says that every person having any weight or measure in his possession, custody or control... and which is intended or is likely to be used by him in any transaction , shall before putting such weight or measure into such use, shall have such weight or measure verified at such place or during such hours as the Controller may prescribe . The manufacturer of the weight or measure instruments is their first custodian with an informed knowledge that such instruments are likely to be used in a transaction, hence the manufacturer has not been taken out of the sweep of Section 24 either expressly or by necessary implication. 14. Secondly, Section 27 of the Act prescribes Penalty for manufacture or sale of non-standard weight or measure and which reads as follows : - 27. Penalty for manufacture or sale of non-standard weight or measure. - Every person who manufactures or causes to be manufactured or sells or offers, exposes or possesses for sale, any weight or measure which, - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight, measure or other goods . 18. On a conjoined reading of the definition of dealer and sale read with the legislative object behind the new enactment, nothing remains to doubt that a manufacturer, who sells or distributes the weight or measures in the market other than through a dealer also falls within the definition of dealer under Section 2(b) and upon the sale of his products through a dealer, such transaction attracts the mischief of sale under Section 2(r) of the Act. Both the sale, distributorship and delivery are included under Section 33 of the Act, besides the omnibus clause or otherwise . 19. The legislative policy obligating a manufacturer to conform to the standards of weights and measures and secure such certification through verification before he sells the net end product in market, directly or indirectly, is so very apparent. Does it amount to an unreasonable restriction within the meaning of Article 19(6) of the Constitution? 20. There is always a presumption in favour of the constitutionality of a legislative enactment and it is to be presumed that the Legislature understands and appreciates the needs of its own people and the laws it enacts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qually settled that the limitation imposed on the enjoyment of fundamental rights of a person cannot be arbitrary or of an excessive nature beyond what is required in the interest of public. The reasonableness of the restriction, thus, has to be determined objectively from the view point of the interest of general public and not of those upon whom the restrictions are imposed. In MRF Ltd. v. Inspector, Kerala Government, (1998) 8 SCC 227, the Hon ble Supreme Court summarized the following principles to determine the reasonableness of restrictions imposed under Article 19(2) to (6) of the Constitution : - (1) While considering the reasonableness of the restrictions, the Court has to keep in mind the Directive Principles of State Policy. (2) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (3) There must be a direct and proximate nexus or a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough legislative measures was held to be a reasonable restriction within the meaning of Article 19(1)(g) of the Constitution in New Bihar Biri Leaves Co. v. State of Bihar, (1981) 1 SCC 537. 29. In M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289, the test to determine the reasonableness of restriction of right to trade or business was elaborately considered and it was held that the broad criterion is whether the law strikes a proper balance between social control on the one hand and the right of the individual on the other hand. The Court must take into account factors like nature of the right enshrined, underlying purpose of the restriction imposed, evil sought to be remedied by the law, its extent and urgency, how far the restriction is or is not proportionate to the evil and the prevailing conditions at that time . It was further ruled that in order to determine reasonableness of the restriction, regard must be had to the nature of the business and the prevailing conditions in that trade or business which would differ from trade to trade and that the State, with a view to prohibit illegal or immoral trade or business injurious to the public health or welfare, is em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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