Allowed

S.Maheswari v. State Represented by

Madras HC1 Sept 2020CRL RC/225/2020

Case brief

AI extract

What is this about?

The High Court held that authorities under COTPA and FSSA lack power to seal a landlord's premises indefinitely. It set aside the lower court's order dismissing the petition for possession, directing the release of the godown and allocation of State funds for destruction of seized unsafe food.

What did the court decide?

Impugned order set aside; respondents to remove contraband and hand over godown to petitioner within 30 days; State to allocate funds for destruction of seized items.

S.Maheswari Vs State Represented by — Property and Title | Madras HC (2020)

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Crl.R.C. No.225 of 2020

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 26.08.2020

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DELIVERED ON: 01.09.2020

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CORAM:

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THE HON’BLE MR. JUSTICE P.N. PRAKASH

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Crl.R.C. No.225 of 2020
S. Maheswari Petitioner
vs.
1 State represented by
The Sub Inspector of Police
Poonamallee Police Station
(Cr. No.1287 of 2018)
2 The Food Safety Officer
Poonamallee Municipality
Poonamallee
3 Muthulingam Respondents
Criminal Revision filed under Section 397 read with Section 401 Cr.P.C.

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seeking to call for the records in Crl.M.P. No.3206 of 2019 on the file of the Judicial Magistrate Court No.II, Poonamallee, set aside the order dated 17.12.2019

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and direct the second respondent to hand over the godown to the petitioner by shifting the contraband involved.

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For petitioner Mr. K. Gajendiran For RR 1 & 2 Mrs. P. Kritika Kamal Govt. Advocate (Crl. Side) For R3 No appearance

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Crl.R.C. No.225 of 2020

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ORDER

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On a complaint lodged by one Shiva, Sub Inspector of Police, the first respondent police searched the godown at Door No.64, Steel City, opposite R.R.B. Energy Bye-pass Road, Poonamallee on 09.11.2018 and seized about 5 tonnes of gutkha and registered a case in Cr. No.1287 of 2018 under Sections 7 and 9 (2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act,

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2003 (for brevity “the COTPA”) and Section 328 IPC.

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2 A reading of the FIR shows that the police party led by Shiva, Sub

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Inspector of Police, found Jebastin (A.1), Senthil (A.2), Isaac Solomon (A.3) and Kumar (A.4) loading gunny bags of gutkha from the godown into three vehicles. The police arrested them and during the course of interrogation, they came to

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know that Muthulingam (A.5) and his brother Kanagalingam (A.6) had taken the godown on rent from Sundar (A.7) and had stored the gutkha in the godown for

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the purpose of distribution. The police arrested Jebastin (A.1), Senthil (A.2), Isaac Solomon (A.3) and Kumar (A.4), sealed the premises and alerted the jurisdictional

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Food Safety Officer, who came to the godown on 10.11.2018 and drew samples for taking criminal action, if required, under the Food Safety and Standards Act,

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2006 (for brevity “the FSSA”). After lifting samples, the Food Safety Officer made an order to Muthulingam (Accused/Food Business Operator) on the same day under Section 38(1)(b) & (c) of the FSSA read with Rule 2.3.2 of the Food Safety and Standards Rules, 2011 (for brevity “the FSS Rules”), in Form No.III, to keep the contraband in safe custody. Thereafter, the Food Safety officials sealed the godown and admittedly, they are having the keys of the godown till date.

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3 The samples lifted by the Food Safety officials were sent for analysis to the Government Food Safety Laboratory and the reports dated 29.11.2018

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revealed that the products contained nicotine and hence, were “unsafe and prohibited”. Therefore, the Food Safety officials preferred three complaints on 27.05.2019 in S.T.C. Nos.119, 120 and 123 of 2019 before the Judicial Magistrate No.II, Poonamallee, for the offences under Sections 51, 52(1),58,59(1) and 63 of the FSSA, against Muthulingam (A.5 in the police FIR) alone on the ground that he was the “Food Business Operator” as defined in Section 3(1)(o) of the FSSA.

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Muthulingam appeared before the Magistrate on 23.09.2019 and pleaded guilty and is awaiting to be sentenced.

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4 While so, the petitioner, who is the owner of the godown, filed an application on 10.08.2019 in Crl.M.P. No.3206 of 2019 under Sections 451 and 457 Cr.P.C. in the Court of the Judicial Magistrate No.II, Poonamallee, seeking custody of her godown. In that petition, she had made the police, the Food Safety Officer and Muthulingam as respondents. The police did not file any counter affidavit. Mr. R. Velavan, Food Safety Officer, filed a counter affidavit and Muthulingam also filed a counter affidavit, wherein, he admitted that the petitioner is his landlord and that he has no objection in the key of the godown being handed

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over to her.

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5 It is seen from the tenancy agreement that Muthulingam had taken the

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godown on rent from the petitioner for running an agency in the name of “M/s. Lingam Agencies” on 02.07.2018 for a period of 11 months, had paid a sum of Rs.3 lakhs as advance and had agreed to pay Rs,40,000/- per month as rent. The police and the Food Safety Officer were aware of this, as could be seen from the averments in the FIR itself, wherein, it is stated that Muthulingam and his brother Kanagalingam have taken the godown on lease from Sundar who is the petitioner's husband. However, the lease agreement stands in the petitioner's name and not in the name of Sundar.

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6 After hearing the parties, the Judicial Magistrate No.II, Poonamallee dismissed the petition on 17.12.2019 on the ground that if the godown is handed over to the petitioner, it will affect the prosecution case.

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7 Challenging the said order, the owner of the godown (the petitioner)

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has preferred the instant criminal revision.

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8 Heard Mr. K. Gajendiran, learned counsel for the petitioner and

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Mrs.P.Kritika Kamal, learned Government Advocate (Crl. Side) appearing for the

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official respondents, viz ., respondents 1 and 2. Muthulingam, the third respondent

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herein (accused in S.T.C. No.119 of 2019) has been served notice but has not entered appearance.

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9 The respondents 1 and 2 have filed individual counter affidavits,

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wherein, they have narrated the circumstances under which the search and seizure

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was conducted and each of them has justified the action taken by him. This Court

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is not concerned with the search and seizure of the 5 tonnes of gutkha by the respondents 1 and 2. Since the petitioner is not seeking return of the gutkha, but is

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only asking the respondents 1 and 2 to hand over possession of her godown, which has been kept under lock and key since 09.11.2018, it may not be necessary for this Court to go into the validity of the prosecution launched against the accused in this case.

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10 The first respondent, in his counter affidavit, has stated that the seized gutkha is liable for confiscation oblivious of the fact that no confiscation order can be passed unless a notice has been issued within 90 days from the date of seizure, to the person who has allegedly stored the gutkha, as stipulated under the proviso to Section 18 of the COTPA. As stated above, the dispute in the instant revision is not with regard to the seized gutkha, but, with regard to the handing over possession of the godown to the petitioner. Ergo, it is immaterial whether any action was taken for confiscation of the gutkha by the authorities or not. Neither under the FSSA nor under the COTPA, is there any provision to seal or confiscate the premises where the alleged contraband is stored. Realising this difficulty, the office of the Commissioner of Food Safety and Drug Administration, Chennai, has issued a Circular dated 13.05.2017 in R.No.7145/2016/S1/FSSA which reads as under:

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“It is well aware that the powers and duties of Food Safety Officer have been prescribed under Section 38 of Food Safety and Standards Act

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2006 and Rule 2.1.3.4 of Food Safety and Standards Rules 2011. Similarly, the powers and duties of Designated Officer have been prescribed under Section 36 of Food Safety and Standards Act, 2006 and Rule 2.1.2.2 of Food Safety and Standards Rules 2011. Further, the Commissioner of Food Safety and Designated Officer shall exercise the same powers as are conferred on the Food Safety Officer and follow the same procedure specified in the Act under Section 29(6) of Food Safety and Standards Act 2006.

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The following instructions are issued to the Food Safety Officers and the Designated Officers while executing their powers in the implementation of Food Safety and Standards Act.

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Destruction of Prohibited items

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When food products containing tobacco or nicotine as ingredients are seized, sample should be lifted from the seized item for analysis. After receipt of analysis report and the sample is reported as prohibited item, destruction of seized product should be done according to section 38(4) of Food Safety and Standards Act within 15 days in presence of any one of the District Level Officer mentioned in the monitoring committee framed under the chairmanship of the District Collector by the Commissioner of Food Safety. (District Superintendent of Police, District Revenue Officer, Deputy Director of Health Services, Chief Educational Officer, District Social Welfare Officer, Representation from Corporation/Municipality, District Commercial Tax Officer, Regional Transport Officer). Destruction memo has to be prepared as if seizure memo in person of witness.

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Sending second sample to referral laboratory

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If 1^st sample conform to standards, second sample should be sent to Referral Laboratory only after obtaining permission from the Commissioner of Food Safety.

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Emergency Prohibition Order

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As per section 34 of Food Safety and Standards Act, if the Designated Officer is satisfied that the health risk condition exist with respect to any food business, he may serve a notice on the Food Business Operator (emergency prohibition notice). After that he should apply to the Commissioner of Food Safety for imposing Emergency Prohibition Order.

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Legal Action

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It was reported that certain Designated Officers issued improvement notice instead of taking legal action against the samples lifted under FSS

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Act reported as unsafe/sub-standard/misbranded. If the sample lifted reported as unsafe/sub-standard/misbranded, proper legal action should be taken against the concerned as mentioned in the Food Safety and Standards Act as per time frame.

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The above said instructions should be followed strictly. Any violation will be viewed seriously.”

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11 Following the aforesaid Circular, the authorities could have destroyed

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the gutkha or could have transported the gutkha to their own godown for safe custody. They did neither. Instead, they used the State power to ride roughshod over the petitioner’s right to have possession of her godown by taking advantage of her pusillanimity to fight the mighty State. But, this Court does not find any provision either in the COTPA or in the FSSA for eternally sealing a premises in which an offending article is stored, that too, without payment of rent or damages to the owner of the premises. Be it noted that, though the right to property is not a fundamental right, yet, it is a constitutional right / human right under Article 300A of the Constitution of India and such a right cannot be infringed by the minions of the State in a cavalier manner. At this juncture, it will be befitting to refer to a

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very recent judgment of the Supreme Court in Hari Krishna Mandir Trust vs.

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State of Maharashtra and others¹ , wherein, it has been held as under:

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“96. The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben

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1 Civil Appeal No.6156 of 2013 decided on 07.08.2020

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Ashokbhai Patel . In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law.

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....... However, laudable be the purpose, the Executive cannot deprive a person of his property without specific legal authority, which can be established in a court of law. (emphasis supplied)

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12 The COTPA does not ban the possession or sale of gutkha, per se , but, it only regulates the manner of packing and labeling of cigarettes and other

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tobacco products. Only to get over this bottleneck, the police have cleverly

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invoked Section 328 IPC as a prop. The power of the Food Safety officials to prosecute the offender, who is in possession of a foodstuff containing nicotine,

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under the FSSA is no more res integra in view of a catena of judicial rulings.

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Thus, the prosecution can be launched only against the person who deals with gutkha containing tobacco and or/nicotine and can, by no stretch of imagination, can a landlord be prosecuted for the sin of having rented out his premises to a food

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business operator. (emphasis supplied).

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13 Mrs. Kritika Kamal tried to justify the police action by contending

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that one of the arrested accused, in the police confession, has stated that Sundar

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(A.7), the petitioner’s husband, was kept in the loop and therefore, it should be

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deemed that the petitioner had knowingly let out her premises to Muthulingam

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(A.5) and Kanagalingam (A.6) for storing the gutkha. This submission of Mrs.Kritika Kamal deserves to be stated only to be rejected, because, as stated above, the possession of gutkha, per se , has not been banned by the COTPA. The word “gutkha” does not find place anywhere in the FSSA or in the Regulations framed thereunder. Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011, states as follows:

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“2.3.4.PRODUCT NOT TO CONTAIN ANY SUBSTANCE WHICH MAY BE INJURIOUS TO HEALTH:

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Tobacco and nicotine shall not be used as ingredients in any food products.”

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However, on the directions of the Supreme Court, the Commissioner of Food Safety, Chennai, has issued a notification dated 23.05.2018 under Section 30(2)(a) of the FSSA prohibiting the manufacture, storage, transport, distribution or sale of

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all food products going in the name or form of gutkha, pan masala, etc ., containing tobacco and/or nicotine as ingredients, in the State of Tamil Nadu for a period of

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one year from 23.05.2018. In other words, a person who is found to be distributing gutkha that contains tobacco or nicotine as ingredients can alone be

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prosecuted under the FSSA. Unless landlords in this country are endowed with divine insight and clairvoyance, which, unfortunately neither the authorities nor

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this Court has, to detect the presence of tobacco and/or nicotine in a foodstuff by a mere sight of it, they cannot be held vicariously liable along with the food business operator either under the FSSA or under Section 328 IPC. Of course, enactments like the NDPS Act make the owner or the occupier of a premises who knowingly permits it to be used for the commission, by any other person, of an offence punishable under that Act to be criminally liable (See Section 25 of the NDPS Act). In these enactments also, action in personam against the landlord alone can be taken, but, no action in rem for the confiscation of his property can be taken, unless it is established that he had purchased the immovable property in question from the proceeds of drug sale. Unfortunately for the prosecution, neither the COTPA nor FSSA has an in pari materia provision to Section 25 of the NDPS Act nor are there provisions for sealing and confiscation of immovable properties.

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14 As stated above, Mrs. Kritika Kamal placed reliance on the police

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confession of the arrested accused to say that the petitioner's husband Sundar knew that Lingam Agencies was doing business in gutkha. The evidentiary value

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of a police confession during trial is not worth the piece of paper on which it is written, even qua the confessor, save for the limited purpose of Section 27 of the

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Evidence Act and it is totally worthless vis-a-vis a co-accused. However, in this

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case, even if such a confession is looked into for the limited purpose of an enquiry

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under Section 451 Cr.P.C., nothing turns out from it against the petitioner. Now, even if we take a worse case where a person is doing business in gutkha in his own

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premises, the State can only prosecute him and confiscate the gutkha and not the premises. Oblivious of the fact that they do not have the power to seal and confiscate the premises, Mr.Velavan, Food Safety Officer, has filed a counter affidavit in the trial Court averring as follows:

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“2. I humbly submit that the provision of law stated in the petition is not at all maintainable. As the property involved herein is the banned food products only. Therefore the relief sought in this petition is liable to be dismissed in limine. There is no provision under Food Safety Act to return the vacant possession of the property or return the seized products.”

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(emphasis supplied)

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15 In the opinion of this Court, the above assertion made by the Food

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Safety Officer is nothing short of executive terrorism. The Parliament, in its

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wisdom, knew that any power given to seal and confiscate immovable properties,

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would result in its abuse and hence, had guardedly not given such powers either in

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the COTPA or in FSSA. When according to the Food Safety Officer, there is no

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provision under the FSSA to return the vacant possession of the property, this

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Court is at a loss to understand as to what he intended to do with the godown. Did

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he want to usurp the godown, is a question for which he alone can answer. Courts

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must stand as sentinels of the rights of citizens against executive excesses. By sealing the godown, the police and the Food Safety Officer have ousted the landlord and the tenant, however evil they may be, from using it, which is indubitably illegal.

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16 In the counter affidavit filed by the second respondent as well in the arguments of Mrs.Kritika Kamal, the order in The Food Safety Officer, Vellore District, Vellore vs. R. Ravamani and 5 others² passed by a learned Single Judge of this Court was pressed into service and a request was made to mulct the cost of destruction of the gutkha on the petitioner. This Court carefully perused the said order. Be it noted that the said order does not lay down any law that, as a matter of principle, the owner of a premises must be made to bear the expense of destruction. In Ravamani (supra), the learned Single Judge had used his discretionary power and had directed that the petitioner therein shall bear the expenses incurred by the State for destruction of the seized goods in that case. There is no legislative sanction in this regard. If such a pre-condition is made as a legal norm, it will amount to judicial sanction of oppression by the State of its hapless citizens. It is the duty of the State to prevent crimes and also ensure that unsafe food does not find its way into the market, for which, it has got the required wherewithal and statutory machinery at its command to destroy it. In fact, vide 2 Order dated 20.12.2018 passed in W.M.P. No.34762 of 2018 in W.P. No.32811 of 2017

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G.O. Ms.No.633, Home (Police I) Department dated 29.07.2003 and G.O. Ms.No.831, Home (Police I) Department dated 25.11.2016, the State Government has sanctioned funds to the Investigating Officer of a case and the Superintendent of Police for meeting the expenses incurred during investigation. Further, the Tamil Nadu Financial Code authorises the authorities to spend money for such purposes under the head “Other contingencies”. It may also be pointed out that there exists a constitutional obligation under Article 47 of the Constitution of India, which enjoins the State to do all that is necessary to promote public health. This would obviously include destruction of foodstuffs seized by the authorities that are declared unsafe. If the State Government has not earmarked any fund for the Food Safety Department for effecting destruction of seized foodstuffs that are found to be unsafe for human consumption, this Court directs the State of Tamil Nadu to make funds available for this purpose.

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17 In the instant case, the respondents 1 and 2 ought not to have kept the petitioner’s godown under lock and key for nearly 20 months. One can understand

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if the police and the Food Safety Officer had sealed the premises for preserving the contraband for a short span of time. After obtaining the laboratory report, they could have reported the matter to the jurisdictional Magistrate and with the help of

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the Assistant Public Prosecutor, could have filed an application under Section 310

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Cr.P.C. for a local inspection by the Magistrate and after taking photographs, videographs and samples in the presence of the Magistrate, they could have shifted the contraband to their own godown or could have destroyed it with the help of the Food Safety officials in terms of the circular dated 13.05.2017 or under Section 451 Cr.P.C. on the orders of the Magistrate on the premise that the gutkha, being a foodstuff as declared by judicial verdicts, is subject to speedy and natural decay and that in public interest, it will be expedient to do so as it should not find its way illegally into the market for public consumption. On the contrary, their act of simply sealing the petitioner’s premises and remaining in a state of slumber for nearly 20 months deserves condemnation. Would they ever dare to do so to their properties, is the question which each right-thinking public officer should ask himself. Therefore, this Court is not inclined to direct the petitioner to pay or bear the cost of destruction of the contraband.

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18 In view of the foregoing discussion, the order dated 17.12.2019 passed by the Judicial Magistrate No.II, Poonamallee in Crl.M.P. No.3206 of 2019

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is set aside and as a sequel, this criminal revision is allowed with the following directions/observations:

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i. The respondents 1 and 2 shall remove the seized contraband from the petitioner’s premises before 30.09.2020 and it is open to them to either destroy it in terms of the Circular dated 13.05.2017 issued by the

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Commissioner of Food Safety & Drug Administration, Chennai, or shift it to their own premises, if they so desire;

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and / or

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ii. The respondents 1 and 2 may, jointly or severally, make an application under Section 310 Cr.P.C. before the Judicial Magistrate No.II, Poonamallee, forthwith, for inspection of the premises and draw samples therefrom and take photographs. The samples so drawn shall be kept in the property room of the Court of Judicial Magistrate No.II, Poonamallee, for the purpose of marking during the trial, either in the case initiated by the Food Safety officials or in the prosecution that is likely to be initiated by the police. The photographs and the samples can also be used as primary evidence in lieu of the whole contraband;

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and / or

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iii. The respondents 1 and 2 may, jointly or severally, make an application under Section 451 Cr.P.C. for destruction of the gutkha on the ground that it is a perishable item and that it is otherwise expedient to do so as it should not find its way illegally into the market for public consumption and after getting orders from the Magistrate, they may destroy the gutkha;

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iv. It is made clear that the respondents 1 and 2, jointly and severally, may take any of the aforementioned routes, to remove the gutkha from the petitioner's godown and come what may, they shall hand over possession of the godown to the petitioner on or before 30.09.2020; and

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v. The State of Tamil Nadu shall allocate sufficient funds for the Food Safety officials for expending on transport and destruction of unsafe foodstuffs that are seized by them.

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