Partly allowed

Shivkumar Subhashchandra Goyal and Another v. the State of Maharashtra and Others

Bombay HC12 Jul 2013WP/296/2013

Case brief

AI extract

What is this about?

The High Court allowed a Criminal Writ Petition challenging an order by a Designated Officer directing the destruction of seized ghee. The court held that the authority must issue notice and hear the petitioner before passing such orders, remanding the matter for appropriate procedure.

What did the court decide?

Impugned order for destruction of seized goods set aside; parties issued notice and given opportunity to be heard; proceedings to be completed within six weeks maintaining status quo.

Shivkumar Subhashchandra Goyal and Another Vs the State… — Consumer Protection | Bombay HC (2013)

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Cri.W.P. No.296/2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.296 OF 2013

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1.	Shri Shivkumar s/o Subhashchandra Goyal, Proprietor of Chambal Dairy Products, Age 43 years, Occ. Business, C/o Gram Kalyan Bagh (Shankarpur, Parking No.1, T.P. Nagar, A.B. Road, Gwalior (M.P.)	(No.1 Deleted as per Hon'ble Court's order Dt. 2/4/2013)
2.	Sanjay s/o Suvalal Bafna Age 47 years, Occ. Proprietor, R/o Sukmal, Laxmi Nagar, Amrutdham, Panchawati, Nashik ...	PETITIONER
	VERSUS

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The State of Maharashtra through its Secretary, Department of Food and Drugs Administration, Mantralaya, Mumbai - 400 032

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The Commissioner, Food and Safety, Food & Drug Administration, Maharashtra State, Mumbai.

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Designated Officer and Assistant Commissioner, Food & Drugs Administration, Maharashtra State, Ahmednagar.

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Food Safety Officer/ Food Inspector, Food and Drugs Administration, Maharashtra State, Ahmednagar.

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Cri.W.P. No.296/2013

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Shri Pramod s/o Vasant Kulkarni, Store Incharge, Shri Saibaba Sansthan, Sai Niwas, Atithi Graha, Shirdi, Taluka Rahata, District Ahmednagar. ... RESPONDENTS

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Shri A.S. Bajaj, Advocate for petitioner Shri S.V. Kurundkar, Public Prosecutor for respondents No.1 to 4/ State Shri S.R. Chaukidar, Advocate for respondent No.5

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CORAM: NARESH H. PATIL & A.I.S. CHEEMA, JJ. DATED: 12th July, 2013.

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ORAL JUDGMENT (Per Naresh H. Patil, J.) :

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Rule. Rule made returnable forthwith. Heard finally with the consent of parties.

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The petitioner challenges order passed by the Designated Officer, Food & Drugs Administration, Maharashtra State, Ahmednagar on 6.12.2012, annexed at Exhibit K to the petition. The petitioner is a supplier of goods and is supplying various food items including Ghee by participating in tenders floated by Shri Saibaba Sansthan, Shirdi. The last tender wherein the petitioner participated was effective for a period

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Cri.W.P. No.296/2013

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from June 2012 to September 2012 for supply of Maharatan brand cow-ghee under the name of Chambal Dairy products. The petitioner executed agreement with Shri Saibaba Sansthan, Shirdi on 30.7.2012 for supply of gaoran ghee. The petitioner submits that, he supplied 1225.40 quintals ghee till 24.8.2012. The last supply was made on 15.8.2012 of 1000 tins, which was lot No.12. On 21.8.2012, the petitioner claims to have supplied 900 tins of Lot No.12 and 15. The said goods were supplied on credit and it was agreed between the parties that price of the goods would be paid within a period of one month after the supply was made. It is submitted that, so far the price of the said food item ghee has not been paid by the respondent Sansthan to the petitioner. Out of lot No.12, 573 tins of ghee was used and out of lot No.15, 96 tins were used for preparation of bundi laddu for the purposes of Prasad by the respondent Sansthan. The petitioner's contention is that, it was noticed by the Sansthan that laddu prepared were giving sour taste. The news item was widely published and circulated in respect of laddu prepared by the Sansthan having bad odour in it.

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It is submitted that, on 20.8.2012, the respondent No.4 visited Madhyawarti Bhandargruha (Central Store) of the Sansthan and seized cow-ghee supplied by the petitioner in tin packing of 15 kg. each. The products were stored in the lot of

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Batch No.12 and Batch No.15.

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The Food Safety Officer filed Misc. Application No. 8/2012 on 12.10.2012 before the Designated Officer and prayed for disposal order of seized food articles stated therein. A supplementary application dated 30.11.2012 was filed before the Designated Officer along with N.O.C. Certificate prepared by Referal Food Laborator, Gaziabad. After perusing the said certificate and the evidence adduced by the Designated Officer, by order dated 6.12.2012, the Designated Officer directed to destroy the said food article of cow-ghee supplied by the petitioner. The food analysis report submitted by the Food Analyst, State Public Health Laborator, Pune on 7.9.2012 is annexed at Exhibit D. Another report furnished by Food Hygiene and Health Laboratory, Pune, concerning the subject sample is annexed at Exhibit E. The report furnished by the Referal Food Laboratory, Government of India, Gaziabad on 6.9.2012 is annexed at Exhibit F.

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Consequent to the notice issued by this Court, the respondent Nos.1 to 4 and respondent No.5 have filed their respective affidavits-in-reply.

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Mr. Bajaj, learned counsel appearing for the

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petitioner submitted that the Designated Officer has no power and jurisdiction to pass the impugned order. The petitioner being a food business operator, was not noticed by the Designated Officer before passing the impugned order. According to learned counsel, cow-ghee which was supplied to Sansthan was not a perishable item. The authorities have to reach appropriate satisfaction before passing the order. It was submitted that, in the report of Food Analyst, it was mentioned that the sample had objectionable burn of odour. For the first time the Referal Laboratory mentioned that the sample is substandard. At no point of time, according to learned counsel for the petitioner, the experts opined that the sample is not fit for human consumption. The counsel further submitted that, in case the petitioner is allowed to take back the goods supplied, then he would undertake that the same would not be used for preparation of ghee but would be used for recycling manufacturing of items like soap etc.

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Mr. Kurundkar, learned Public Prosecutor submitted that the Designated Officer, under the Scheme of the Act, is empowered to pass order of destruction of ghee. Even if the provisions of Section 47 do not confer specific powers to order destruction of the stock by the Designated Officer, considering the scheme of the provisions of the Act, it shall be held that the

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Designated Officer has power to pass the impugned order. The learned Public Prosecutor placed reliance on Section 18 of the Food Safety and Standards Act, 2006 (hereinafter referred to as the 2006 Act for short). The learned Public Prosecutor further submitted that in case such food item is allowed to be used for consumption, then the safety of the persons who would be using the food stock would be in danger. As the Sansthan was utilising ghee for preparing laddu, the authorities had taken appropriate strict action as otherwise the use of subject item would have caused harm to the health of large number of devotees of Shri Saibaba Sansthan, Shirdi.

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Taking into consideration the seriousness in its entirety, the learned Public Prosecutor urged that the impugned order be maintained.

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Mr. Chaukidar, learned counsel appearing for the respondent No.5 Sansthan submitted that there is no guarantee that even if the goods are returned to the petitioner, he would use it for recycling purposes and not for the purposes of human consumption. The Sansthan is duty bound and concerned with the health of the devotees who consume Prasad prepared by the the Sansthan. Ghee being essential ingredient of preparation of laddu, the Sansthan was duty bound to take appropriate steps to

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Cri.W.P. No.296/2013

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bring to the notice of the appropriate authority and accordingly, immediate steps were taken. It was further submitted that the National Level Referal Laboratory has expressed its opinion that the goods supplied were of substandard.

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The provisions of Section 36 of the Act of 2006 confer power on the Commissioner of Food Safety to appoint a Designated Officer. Under Section 37, the Commissioner gets power to appoint a Food Safety Officer. Under Section 38, the powers of the Food Safety Officer are described. The provisions of Section 38(4), read as under :

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"38. Powers of Food Safety Officer.__

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(1) The Food Safety Officer may ___

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(a) take a sample ___

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(i) of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or

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(ii) of any article of food or substance which is found by him on or in any such premises;

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which he has reason to believe that it may be required as evidence in proceedings under any of the provisions of this Act or of the regulations or orders made thereunder; or

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(b) seize any article of food which appears to the Food Safety Officer to be in contravention of this Act or the regulations made thereunder, and

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and in both cases send the same for analysis to a Food Analyst for the local area within which such sample has been taken.

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Provided that where the Food Safety Officer keeps such article in the safe custody of the food business operator, he may require the food business operator to execute a bond for a sum of money equal to the value of such article with one or more sureties as the Food Safety Officer deems fit and the food business operator shall execute the bond accordingly.

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(2) The Food Safety Officer may enter and inspect any place where the article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food, or exposed or exhibited for sale and where any adulterant is manufactured or kept, and take samples of such articles of food or adultrant for analysis.

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(3) Where any sample is taken, its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

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(4) Where any article of food seized under clause (b) of sub-section (1) is of a perishable nature and the Food Safety Officer is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the Food Safety Officer may, after giving notice in writing to the food business operator, cause the same to be destroyed.

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(5) The Food Safety Officer shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code.

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(6) Any aulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such and for the possession of which he is unable to account to the satisfaction of the Food Safety Officer and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the Food Safety Officer and a sample of such adulterant submitted for analysis to a Food Analyst.

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Provided that no such books of account or other documents shall be seized by the Food Safety Officer except with the previous approval of the authority to which he is subordinate.

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(7) Where the Food Safety Officer takes any action under clause (a) of sub-section (1), subsection (2) or sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.

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(8) Where any books of account or other documents are seized under sub-section (6), the Food Safety Officer shall, within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed by the Central Government have been taken.

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Provided that where such person refuses to so certify and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof and extracts therefrom as certified by the Court have been taken.

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(9) When any adulterant is seized under subsection (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.

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(10) The Commissioner of Food Safety may from time to time issue guidelines with regard to exercise of powers of the Food Safety Officer, which shall be binding:

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Provided that the powers of such Food Safety Officer may also be revoked for a specified period by the Commissioner of Food Safety."

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Reliance was placed by the respondent on the provisions of Section 47(4), which reads as under :

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"47. Sampling and analysis.__

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(4) An article of food or adulterant seized, unless destroyed, shall be produced before the Designated Officer as soon as possible and in any case not later than seven days after the receipt of the report of the Food Analyst.

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Provided that if an application is made to the Designated Officer in this behalf by the person from whom any article of food has been seized, the Designated Officer shall by order in writing direct the Food Safety Officer to produce such article before him within such time as may be specified in the order."

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The definition of food business and food business operator find place in Section 3(n) and (o), which read respectively as under :

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"3(n) "food business" means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation of food, import and includes food services, catering services, sale of food or food ingredients;

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(o) "food business operator" in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder."

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We have perused the affidavits-in-reply filed by the respondent Nos.1 to 4 and 5 respectively. On behalf of the respondent Nos.1 to 4, the deponent has contended that the respondent No.5 herein had given no objection to destroy the seized property and accordingly, in the interest of public health, the respondent No.3 herein had passed order of destruction on the basis of report of Referal Food Laboratory.

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It was averred that the respondent No.5 is owner of the seized cow-ghee and the petitioner has no right to say anything about the method of disposal. The respondent No.5 herein submitted that, there is every likelihood that the petitioner would resale or recycle the seized goods in open market if they are returned to him. The goods are unsafe for human consumption.

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Cri.W.P. No.296/2013

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Considering the provisions of the Act of 2006 and the Rules framed thereunder, and in view of the facts of the case, we are of the view that the petitioner could be heard by the appropriate authority before passing any order under the provisions of the Act of 2006 and the Rules framed thereunder. The authority concerned, after hearing the petitioner Sanjay Suvalal Bafna and the other contesting parties to this petition, is entitled to pass appropriate orders on its own merits and in accordance with the provisions of law. We do not express any final and conclusive opinion in respect of the issue raised in the proceedings of this petition as the same would affect the decision making process of the authority concerned.

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O R D E R

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(a) Criminal Writ Petition is allowed.

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(b) The order passed by the respondent No.3 - Designated Officer, Food and Drugs Administration (Maharashtra State), Ahmednagar is set aside.

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(c) We direct that the appropriate officer/ authority shall issue notice to the petitioner Sanjay Suvalal Bafna and other contesting parties to this petition and thereafter pass appropriate orders in respect of the action/ decision to be taken by the authorities in respect of the

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subject matter of this petition.

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(d) It is clarified that, we have not expressed any conclusive opinion in respect of the merits of the claim of the contesting parties.

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(e) The appropriate authority issuing notice to the parties, shall complete the proceedings and pass appropriate orders within six weeks from today.

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(f) Parties shall maintain status quo in respect of the seized goods for a period of six weeks.

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Rule made absolute in above terms.

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(A.I.S. CHEEMA, J.)

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(NARESH H. PATIL, J.)

Shivkumar Subhashchandra Goyal and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Shivkumar Subhashchandra Goyal and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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