Kerala High Court
Dharampal Satyapal Ltd vs State Of Kerala on 8 July, 2013
Bench: K.M.Joseph, A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935
WA.No. 1186 of 2013
AGAINST THE JUDGMENT IN WP(C) 14199/2013 of HIGH COURT OF KERALA
DATED 08-07-2013
APPELLANT/PETITIONER:
DHARAMPAL SATYAPAL LTD.
2/322A, MANALOOR COMPLEX, AMBATTUKAVU
THRIKKAKARA P.O., ALUVA-682106
REPRESENTED BY ITS SENIOR MANAGER MR.V.R.SHIVAKUMAR.
BY ADVS.SRI.ANIL D. NAIR
SMT.NIVEDITA A.KAMATH
SRI.R.SREEJITH
RESPONDENTS/RESPONDENTS:
1. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.682031
2. COMMISSIONER OF FOOD SAFETY
GOVERNMENT OF KERALA, TRIVANDRUM-695001.
R1& R2 BY ADV. GOVERNMENT PLEADER SHRI TOM K.JOASE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-10-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.M.JOSEPH & A.HARIPRASAD, JJ.
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W.A. NO. 1186 OF 2013
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Dated this the 29th day of October , 2013
J U D G M E N T
Hariprasad, J.
The petitioner in the Writ petition has come up in appeal feeling aggrieved by the judgment of the learned single Judge passed with the following directions:
i. The Sub Inspector of Walayar police station is directed to produce the food products, namely 'Rajnigandha' seized in Crime No.524/13 of Walayar police station in the court of Judicial First Class Magistrate which have territorial jurisdiction over the Walayar police station, forthwith, if the said goods are not already produced.
ii. The Sub Inspector of police, Walayar police station, as well as the Commissioner of Food Safety, Government of Kerala, W.A. NO. 1186 OF 2013 -2- Thiruvananthapuram, or any of his subordinate competent Officers, are directed to file separate applications in the said court for drawing samples of requisite number of packets or requisite quantity of samples homogeneously drawn from the above food product for chemical analysis and such applications shall be made within 1 month from today.
iii. In case of filing of such applications, the learned Magistrate is directed to see that proper and requisite samples are drawn in terms of clause (ii), under his supervision and the same are safely and properly packed and sent for chemical analysis report to the concerned Chemical analysts' lab meant for the same, with a request to furnish the report as expeditiously as possible, at any rate, within two months from the date of receipt of the same, by deputing a competent Police personnel.
iv. The petitioner is free to make an application for the custody of the seized article through its authorised agent, who in W.A. NO. 1186 OF 2013 -3- turn can approach the court concerned by filing proper application for the custody of the article and the learned Magistrate is directed to release the goods, subject to clause Nos.v, vi, vii and viii.
v. The learned Magistrate concerned is directed to consider such application and release the contraband article to the petitioner or its agent, after drawing requisite samples as directed in clause No.
(ii), on satisfying the conditions hereinafter incorporated, if such application for drawing samples and sending it for chemical analysis is filed, within the time stipulated by this Court, and if such applications are not filed within the stipulated time, the learned Magistrate is free to release the entire goods in favour of the petitioner or its agent.
vi. The petitioner or its authorised agent shall execute a bond for `50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount to the satisfaction of the court concerned. W.A. NO. 1186 OF 2013 -4- vii. The petitioner or its agent is directed to file an affidavit before the court below undertaking that the petitioner or its authorised agent is ready and willing to face any prosecution or proceedings, if any, subject to the result of the chemical analysis report upon the samples drawn and also undertaking before the court below that, on releasing the goods seized in the above case in favour of them, such goods will not sell in the State of Kerala, for a period of 3 months from the date of release of the same in favour of them.
viii. The petitioner or its authorised agent shall deposit a sum of `50,000/- (Rupees fifty thousand only) in the Judicial First Class Magistrate court concerned.
ix. If the second respondent or his subordinate or authorised officials desire to get requisite quantity of goods seized for their procedural and legal purpose, they are free to make an application to the court below for the same, which shall also be considered in favour of them and release the required W.A. NO. 1186 OF 2013 -5- quantity of the goods.
x. In case of depositing the amount by the petitioner, in terms of clause (viii), the learned Magistrate is free to deal with the amount and pass appropriate orders in accordance with the further proceedings or outcome in Crime No.524/13 of Walayar police station.
2. Brief case of the appellant is as follows:
The appellant is a public limited company, incorporated and registered under the Companies Act, 1956, engaged in the manufacture and trade of various food items, including "Rajnigandha" branded panmasala. It does not contain tobacco or nicotine as an ingredient. Royal Enterprises is one of the distributors of the appellant in the State of Kerala. A consignment to them containing boxes of panmasala under the brand name of "Rajnigandha", which is a non tobacco based product, have been seized by respondent No.1 under a serious misconception and W.A. NO. 1186 OF 2013 -6- error that it contains tobacco and is a prohibited article. And a case has also been registered alleging commission of the offence punishable under Section 118(i) of the Kerala Police Act. The entire process of seizure amounts to grave miscarriage of justice in the light of the judgment in W.A.No.1685 of 2012. The appellant company is aggrieved by the said seizure which is illegal and unlawful. The learned single Judge imposed erroneous conditions for release of the goods in spite of finding that the trial will not yield any result as the competency of the person, who seized the goods was questionable.
3. We heard the learned senior counsel appearing for the appellant, Shri Deepak Dhingare and the learned Government Pleader.
4. The prayers in the writ petition are as follows:
a) Issue a writ, order or direction in the nature of a writ of mandamus directing the respondents not to detain, confiscate and seize W.A. NO. 1186 OF 2013 -7- any goods which are not covered by circular bearing reference No.A-1327/12/CFS dated 25.5.2012 and as clarified by the judgment of the Division Bench of this Hon'ble Court in W.A.No.1685 of 2012 dated 3.10.2012.
b) direct the release of the consignment seized by respondent no.1 and subject matter of crime no. 524 of 2013 registered with Walayar police station, Palakkad, State of Kerala.
c) to grant stay of all further proceedings pursuant to Ext.P3 pending final disposal of the writ petition.
d)issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.
5. The learned single Judge found that relief (a) claimed in the writ petition is not allowable. Learned senior counsel for the appellant did not press for that relief. Regarding prayer (b), it was argued that the learned single Judge went wrong in imposing conditions in the matter of release of the goods. Our attention was also drawn to the order passed by a W.A. NO. 1186 OF 2013 -8- learned single Judge in W.P.(C) No.12932/2012 & connected cases(Ext.P1). Paragraphs 16, 57 and 60 of Ext.P1 order reads as follows:
"16. The pleas of the petitioner in W.P.(C) No.12932/2012 are slightly different. The petitioner points out that certain items like Pass Pass, Rajnigandha, Rajnigandha Meetha Mazaa, which are the products of the petitioner, are not covered by the notification. The petitioner is having the requisite licence for the manufacture and distribution of these items. It is submitted that the petitioner is strictly conforming to the standards prescribed for those items. Learned Senior Counsel Shri. Deepak Dhingra submitted that in the notification, panmasala and gutka have been grouped together which is ill conceivable. Actually, gutka is panmasala containing tobacco. It is submitted that COTPA Act being a special enactment for the production, supply and distribution of tobacco products, the same alone will govern the field. The notification specifying that "gutka and panmasala by whatsoever name available in the market is under prohibition" is therefore unreasonable W.A. NO. 1186 OF 2013 -9- and without any justification. It is submitted that the petitioner has conformed to the labelling declaration and other regulations. But in the light of the notification they are unable to sell it in the market because of the interference by the officials concerned based on the notification. Therefore, the petitioner is seeking for a direction to the officers not to disturb or impose any restrictions on the business conducted by the petitioner including manufacturing, storing, distribution, sale and marketing.
57. As far as W.P.(C) No.12932/2012 is concerned, learned Senior Counsel submitted that the facts of the case a re on a different footing, as it is not a case where the petitioner is selling panmasala or gutka containing tobacco. But the products are different, namely, Pass Pass, Rajnigandha, Rajnigandha Meetha Mazaa, etc. It is submitted that under the guise of implementation of the notification, these products are also sought to be included within its purview by drawing support from the words 'whatever name' in the last paragraph of Ext.P1 notification. It was strongly argued that W.A. NO. 1186 OF 2013 -10- gutka and panmasala also cannot be grouped together and it amounts to a misnomer. Various other points especially in the matter of labelling of the items, have also been vehemently argued to show that such notifications of general nature cannot be issued.
60. Having considered the arguments, I am of the view that this Court will not be justified in granting the interim prayer sought. Evidently the petitioner claims that the products are different from gutka and panmasala. This Court in a writ petition, will not be justified in giving a blanket order permitting that the products manufactured by the petitioner could be easily sold in market or distributed in the State. If at all any action against the petitioner or any distributors or sellers are taken in respect of these products by the designated authorities, then it will be for the parties concerned to agitate the matter."
6. Learned senior counsel for the appellant argued that feeling aggrieved by the direction in Paragraph 60 of the order referred to above, they W.A. NO. 1186 OF 2013 -11- took up the matter in writ appeal. The judgment passed in the Writ Appeal is marked as Ext.P2. It is brought to our notice that a Division Bench of this Court in Ext.P2 judgment observed as follows:
"3. Reading of the first paragraph indicates that production, distribution and sale of gutkha and panmasala and like articles by whatever name called in the State of Kerala is banned. Ext.P7 dated 25.05.2012 is a communication of the order dated 22.05.2012 at Ext.P1. As a matter of fact, the real intent is not imported in the letter dated 25.05.2012.
4.Therefore, it is made clear that the intention of the department in issuing Ext.P7 was to prohibit or ban production, distribution and sale of 'gutkha' and 'panmasala' containing 'tobacco' or 'nicotine' as ingredients, by whatsoever name they are available in the market in the State of Kerala."
7. Learned senior counsel for the appellant reiterated his contention that the panmasala seized does not contain either tobacco or nicotine and therefore, not covered by the G.O. dated 22.5.2012, W.A. NO. 1186 OF 2013 -12- marked as Ext.P1 in the earlier writ petition.
8. Learned Government Pleader would contend that the samples lying in the court of the Magistrate having jurisdiction were sent for analysis as directed by the learned single Judge. A statement filed by the learned Government Pleader, producing Annexure-A, copy of certificate of examination dated 25.8.2013, is also brought to our notice. Annexure-A certificate would show that the sample sent up for analysis tested negative for nicotine. It is submitted by the learned Government Pleader that the State has already initiated prosecution under the The Food Safety and Standards Act, 2006.
9. Learned senior counsel appearing for the appellant would submit that till date the appellant has not received any notice or information regarding the prosecution under the Food Safety and Standards Act, 2006. It is submitted by the learned Government W.A. NO. 1186 OF 2013 -13- Pleader that the prosecution was launched on account of the fact that the sample contained magnesium carbonate, an anticaking agent, beyond the prescribed quantity. However, the learned senior counsel would submit that the quantity of magnesium carbonate seen in Annexure-A certificate of examination is far below the permissible limit. The learned senior counsel appearing for the appellant also contended that the product was despatched from Bangalore in March 2013, it reached the State on 28.4.2013 and on the same day the article was seized. Long after the order passed by the learned single Judge on 8.7.2013, the sample was taken only on 20.8.2013. Hence, it is contended by the appellant that the presence of magnesium carbonate can be due to natural causes induced on account of delay.
10. Our attention was drawn by learned senior counsel to Chapter I of the The Food Safety and W.A. NO. 1186 OF 2013 -14- Standards (Packaging and Labelling)Regulations, 2011 wherein expression "best before" has been explained, which reads as follows:
"1. "Best before" means the date which signifies the end of the period under any stated storage conditions during which the food shall remain fully marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond that date, the food may still be perfectly safe to consume, though its quality may have diminished. However the food shall not be sold if at any stage the product becomes unsafe."
Therefore, it is contended that even if the sample drawn from the seized articles was analysed, it will only be a futile exercise as the food item would be damaged due to elapse of long time. It is also contended by the learned senior counsel that magnesium carbonate is not an added substance and it is carried over food as provided under the Act. It W.A. NO. 1186 OF 2013 -15- is also submitted by the learned senior counsel that the prosecution launched under Section 118(i) of the Kerala Police Act, 2011 itself is incompetent which reads as under:
"Section 118(i) of the Kerala Police Act,2011 which reads as follows:
118.Penalty for causing grave violation of public order or danger,-Any person who,-
xx xx
(i)gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and mental health or procure the same near school premises for that purpose."
11. The appellant is not an accused in this case and therefore, they contended that they are unable to challenge the prosecution in an appropriate proceeding.
W.A. NO. 1186 OF 2013 -16-
12. The having goods crossed the time prescribed for "best use before", the learned senior counsel for the appellant as well as the learned Government Pleader submitted that the learned Magistrate can be directed to destroy the goods and the samples shall be preserved in accordance with the procedure.
13. In the circumstances of this case, we have carefully gone through the reliefs claimed in the appeal as well as the directions issued in the impugned judgment. It is seen that direction Nos.(i),
(ii) & (iii) made by the learned single Judge have already worked out. The learned senior counsel for the appellant submitted that they did not intend to seek custody of the seized article because it has already crossed the period "best before use" and it cannot be reused. Therefore, directions (iv) to (vi) &
(viii) have become redundant. Direction No.(vii) is W.A. NO. 1186 OF 2013 -17- legally unsustainable as no one needs to file an affidavit that he can be prosecuted in the event of detection of an offence. Hence that condition is set aside.
14. Other directions in the impugned judgment also have become infructuous. Therefore, we find that with the above-mentioned observations, the writ appeal can be disposed of. Hence, we do so.
However, a copy of this judgment shall be forwarded to the Magistrate having jurisdiction for compliance of directions in paragraph 12 above.
Sd/-
(K.M.JOSEPH) JUDGE.
Sd/-
( A.HARIPRASAD)
ks JUDGE.
TRUE COPY
P.S.To Judge
W.A. NO. 1186 OF 2013
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