Sikkim High Court
Birendra Shahi vs State Of Sikkim And Ors. on 25 July, 2000
Equivalent citations: 2002CRILJ169
Author: Anup Deb
Bench: Anup Deb
JUDGMENT Ripusudan Dayal, C.J.
1. By this Writ Petition the petitioner has challenged Notification No. 16/H/PFA dated 25-8-98 issued by the Government of Sikkim, Department of Health and Family Welfare, Local Health Authority (P.F.A.) prohibiting the petitioner to "manufacture, sale, store or distribution of ice candy within the State of Sikkim in the interest of public health hygine with immediate effect till further orders." By letter No. 3755/UD and HD dated 19-10-98 issued by the Urban Development and Housing Department, Government of Sikkim, the petitioner was informed:--
I am directed to inform you that in view of the Notification No. 16/H/PFA dated 25-8-98 issued by the Health and Family Welfare Department, Local Health Authority (PFA), Government of Sikkim, prohibiting you to manufacture, sale, store and distribution of Ice Candy within the State of Sikkim in the interest of public health and hygine, the Department of Urban Dev. and Housing Department is unable to renew your trade licence since clearance of Health and Family Welfare Department, Local Health Authority (PFA) is one of the pre-requisites for considering renewal of trade licence pertaining to food articles.
2. It is evident that the trade licence was not issued by the Urban Development and Housing Department because of the Notification issued by the Department of Health and Family Welfare, Local Health Authority (PFA) dated 25-8-98. Earlier to that Notification, the office of the Food (Health) Authority (P.F.A.) Department of Health and Family Welfare, Gangtok had issued memo No. 303/H and FW/PFA dated 7-8-98 to the petitioner in the following terms :--
In receipt of the Public Analysis Report being report No. PF/SK/7/1998 dated 18-7-98 and the forwarding letter No. XVI-95/ A21 dated 18-7-98 of 'Ice Candy" of our product, it is found that you are manufacturing, selling sub-standard and adulterated Ice Candy.
You are required to show cause as to why there should not be complete ban on manufacture and sale of Ice Candy under the provision of Section 7 of the Prevention of Food Adulteration Act, 1954 and Rule 1955 read with Clause (a) of Sub-rule (1) of Rule 3 of the Sikkim Prevention of Food Adulteration Rule 1991 immediately from the date of receipt of this show cause failing which your manufacture and sale of Ice Candy shall be banned without any further notice. This step is being taken in the interest of public health.
It is an admitted case of the parties that no reply to the show cause notice was submitted by the petitioner.
3. Case of the petitioner as stated in paragraph 31 is as under :--
31. That a collusive show cause notice dated 7-8-1998 was issued by the Food Health Authority stating therein that the Ice Candy was found sub-standard and adulterated. This finding was biased and not based on real fact. Every report was bias and prepared under the influence of the private respondents. In fact the sample collected in the name of ice cream was not the ice cream prepared by the petitioner rather it was ice used in the termos boxes to preserve ice cream in it. This act itself proves that the entire action is mala fide.
4. Dr. T. R. Gyatso, Principal Director, Food (Health) Authority, Department of Health and Family Welfare, Respondent No. 5 stated in his counter affidavit in reply to paragraph 31 in paragraph 15 as under :--
15. That with reference to the statement contained in paragraph 31 of the writ petition, it is submitted that show cause notice dated 7-8-1998 was issued in accordance with and in pursuance of the powers conferred under the law after the respondent received Annexure R-2 from the Public Analysts. The show cause notice dated 7-8-1998 was rightly issued. The allegation that the show cause notice dated 7-8-1998 was rightly issued. The allegation that the show cause notice dated 7-8-1998 is collusive and the report i.e. Annexure R-2 is biased and not based on real facts is highly defamatory based on conjectures and surmises. The respondent submits that the report comes from Guwahati and Dr. K. L. Chakravarty is the Analyst for the Government of Assam and also the Government of Sikkim, as such the petitioner cannot say that the report i.e. Annexure R-2 is a biased document. It is denied that every report is biased and prepared under the influence of private respondent and that the sample collected in the name of ice cream was not the ice used in thermos to preserve the ice cream as alleged. Entire statement made therein are made in order to ruin the reputation of the Department as a whole. The respondent and the staff of respondent No. 5 have not acted mala fide against the petitioner and on the other hand the petitioner has been making all sorts of false, baseless and frivolous allegations against the respondent No. 5 and other State respondents. The petitioner has also raised disputed questions of facts which cannot be adjudicated upon in the present proceedings.
5. We have heard Mr. Binod Kumar Singh, learned Counsel for the petitioner and Mr. S. P. Wangdi, learned Advocate General for the respondents.
6. Legal position is very well settled. If action of the State Authority is actuated by malice, the action need be interfered with by the High Court in exercise of powers in writ jurisdiction. But. allegations of mala fide must be specific, to the point and relevant to the questions involved is whether the Public Analyst's reports mentioned in the show cause notice dated 7-8-1998 to the effect that the petitioner was found to have been manufacturing and selling sub-standard and adulterated Ice Candy was factually untrue or was based on some extraneous reasons. The learned Counsel for the petitioner has fairly conceded that this Court may not enter into the question by recording evidence as to whether the sample collected was of ice candy. It was for the petitioner to submit reply to the show cause notice and submit whatever stand he was to submit before the authority concerned. Then it was for the authority concerned to take decision on the matter after giving due opportunity of hearing to the petitioner. But here the petitioner exercised the option of not approaching the authority to submit and prove his case. In this situation, we are not impressed with the argument that the show cause notice is based on mala fides merely because the petitioner had to approach the Court in respect of the action of some other departments with respect to the grant of licence and other matters earlier and also because his landlord was interested in getting him evicted, as submitted before us. We find no merit in the petition.
7. Accordingly, the writ petition is dismissed. In the circumstances, there shall be no order as to costs.