Karnataka High Court
Smt.Asifa Sultana And Ors vs The State & Anr on 11 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.201319 OF 2018
BETWEEN:-
1. SMT. ASIFA SULTANA
W/O ABDUL HAFEEZ
AGE: 46 YEARS
OCC: HOUSEHOLD & BUSINESS
R/O H.NO.4-1-68
NOOR KHAN TALEEM
BIDAR - 585 401
2. ABDUL MOIZ
S/O ABDUL HAFEEZ
AGE: 28 YEARS
OCC: BUSINESS
R/O H.NO.4-1-68
NOOR KHAN TALEEM
BIDAR - 585 401
3. ABDUL HAFEEZ
S/O ABDUL AZIZ SAITH
AGE: 49 YEARS
OCC: BUSINESS
R/O H.NO.4-1-68
NOOR KHAN TALEEM
BIDAR - 585 401
... PETITIONERS
(BY SRI RAVI B. PATIL, ADVOCATE)
2
AND:-
1. THE STATE THROUGH
NEW TOWN POLICE STATION
BIDAR - 585 401
2. DR. OMKAR PATIL
ASSISTANT DIRECTOR
ANIMAL HUSBANDARY DEPT.
BIDAR - 585 401
... RESPONDENTS
(BY SRI P.S. PATIL, HCGP)
THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C.,
PRAYING TO QUASH THE FIR IN CRIME NO.11/2018 DATED
25.01.2018 AS AT ANNEXURE-A AND ENTIRE PROCEEDINGS
THEREON PENDING ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC AT BIDAR AND TO QUASH THE ORDER
PASSED IN CRIMINAL REVISION PETITION NO.15/2018 BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AT BIDAR AND
CONSEQUENTLY TO ALLOW THE APPLICATION PREFERRED BY
THE PETITIONER SEEKING RELEASE OF SEIZED MATERIAL IN
CRIME NO.11/2018 FOR RELEASE OF THE MEAT SEIZED UNDER
PF NOS.6/2018 AND 7/2018.
THIS CRL.P HAVING BEEN HEARD AND RESEVED FOR
ORDES ON 05.12.2018, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The instant petition is preferred under Section 482 of Cr.P.C. for the following reliefs:-
"a) Quash the FIR in Crime No.11/2018, dated 25.01.2018 as at Annexure-A and entire 3 proceedings thereon pending on the file of II Addl. Senior Civil Judge & JMFC at Bidar in the interest of justice and equity.
b) Quash the Order passed in Criminal Revision Petition No.15/2018 by Principal District & Sessions Judge, at Bidar and consequentially to allow the application preferred by the Petitioner seeking release of seized material in Cr.No.11/2018 for release of the meat seized under PF Nos.6/2018 and 7/2018."
2. The grievance of the petitioners is that petitioner No.3 is arrayed as accused No.1 in Crime No.11/2018 registered by respondent No.1 based on the complaint lodged by respondent No.2 namely, Assistant Director, Animal Husbandary Department, Bidar on the allegation that without specific licence for packing, re-packing, processing, storage or trading, the petitioners were found packing cow meat by fixing the label "SUPER Fresh frozen boneless buffalo meat" and thereby were cheating the Government. The said allegations do not make out the ingredients of the offences under Sections 420 or 429 of IPC. 4
3. The contentions of the petitioners are that, respondent No.2 had approached the unit of the petitioners without registering the complaint with the jurisdictional police. Therefore, the registration of the case and the seizure of the meat from the storage of the petitioners is contrary to the procedure contemplated under law. Respondent No.2 had no jurisdiction either in law or under any provisions of the Act to hold a surprise visit to the unit of the petitioners and to conduct a panchanama. Therefore, the entire proceedings initiated against the petitioners are bad in law. The petitioners further contend that they have been carrying on the business under valid licence issued by the competent authority. The said licence is renewed from time to time. The seized meat belongs to various customers of the petitioners who have submitted certificates issued by the competent authorities and the same were produced before the Courts below to justify that the seized material was buffalo meat. Further, it is contended that, neither the provisions of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 (hereinafter referred to as 'the Act of 1964" for short), nor the provisions of Indian Penal Code are attracted against the petitioners. The person who collected the 5 samples was not a competent officer under the provisions of Food Safety and Standards Act, 2006. The Assistant Director of Animal Husbandary Department had no authority to certify or to seize the material from the premises of the petitioners. Respondent No.1-police have blindly registered the case against petitioner No.3. The application filed by the petitioners for release of the seized meat has been rejected by the Courts below erroneously without considering the illegalities in the seizure of the meat belonging to the petitioners and thus, the petitioners have sought for release of the meat seized under PF Nos.6/2018 and 7/2018 and to quash the entire proceedings initiated against the petitioners in Crime No.11/2018.
4. The learned High Court Government Pleader has filed a statement of objections on behalf of respondent Nos.1 and 2 interalia contending that the Court below has properly exercised its jurisdiction. The material collected by the Investigating Agency indicates that the "petitioners were involved in mainiming the flush of she-buffaloes cutting into pieces and making small packets for the purpose of selling in the market, thereby segregating the meat from its bone, as such ingredients 6 of Sec. 429 of IPC is attracted" (Sic). It is further contended that the F.I.R in question was registered not only for the offences punishable under IPC, but also for other offences under the "said enactment" and hence, there is no illegality in the registration of the F.I.R against the petitioners. Petitioners are only custodians and not the true owners of the seized meat. Hence, they are not entitled for interim custody of the seized property. Court below has rightly dismissed the application filed under Section 457 of Cr.P.C. Further, contending that the petitioners have committed the acts punishable under Sections 420 and 429 of IPC, the learned High Court Government Pleader has sought for dismissal of the petition.
5. During the pendency of the petition, a third party intervener-Ms. Joshain Antony claiming to be a bonafide citizen selflessly working as a volunteer in the field of animal welfare has filed an application under Section 301(2) of Cr.P.C., seeking to intervene in the petition and has filed a statement of objection contending that the Intervener received information about 384 tons of illegal cow beef being procured from illegal slaughterhouses stored in the cold storage of the petitioners and 7 hence, she proceeded to complain the matter to New Town Police Station, Bidar. The police took her complaint and proceeded to take the complaint from Assistant Director, Animal Husbandry and Veterinary Services and registered the F.I.R in Crime No.11/2018 of New Town Police Station, Bidar and seized 384 tones of cow beef under PF Nos.6/2018 and 7/2018. According to the Intervener, Sections 4 and 9 of the Act of 1964 prohibits the slaughter of cows and makes the same a cognizable offence. The petitioners were the custodians of the beef obtained from illegal slaughterhouses. The petitioners therefore are facilitators and suppliers to the market in the entire process of illegal cow meat. In the objection statement, the Intervener has further contended that "the position of the petitioners with respect to the meat is till now uncertain- as to whether the petitioners are owners or custodians of the said meat". On their claim of being owners, the petitioners are directly involved in cow beef sale in violation of Section 9 of the Act of 1964. Thus, prima facie case is made out under Sections 420 and 429 of IPC. The Intervener has further contended that there is no bar for trial or conviction of an offender under two different enactments. The addition of Sections 4 and 9 of the Act of 1964 has been 8 carried out by the police on 04.04.2018 after confirmation of the nature and DNA of the beef as cow beef. The meat is sourced from illegal slaughterhouses in and around Bidar. The business carried on by the petitioners is wholly illegal. The licence issued by the Food Safety and Standards authority has expired on 02.06.2017. The petitioners have not established their ownership over the seized meat and therefore the Court below has rightly rejected their application for release of the said meat and hence, there is no reason either to quash the proceedings or to release the meat to the petitioners. Thus, the third party intervener has also sought for dismissal of the petition.
6. I have heard the learned counsel for the petitioners, who has placed reliance on the provisions of the Food Safety and Standards Act, 2006 and the Act of 1964 and would contend that the petitioners have been lawfully carrying on the business of packing, re-packing, processing, storage and trading of cattle and buffalo meat. The petitioners had obtained valid licence from the Food Safety and Standards Authority of India. The said licence has been renewed. There was no illegality whatsoever in the business run by the petitioners. The facts alleged in the 9 F.I.R do not attract the provisions of Sections 420 or 429 of IPC. Even though subsequently an application was filed by respondent No.2 to incorporate the provisions of the Act of 1964, as per the provisions of the said Act, the prosecution could have been launched only by the competent authority appointed under Section 3 of the said Act. As per the notification No.LMA 47(4) GGL 66, Bangalore, dated 21st February, 1967, Veterinary Assistant Surgeon, Veterinary Hospital, Bidar, Extension Officer, Animal Husbandary, Bidar and Veterinary Assistant Surgeon, K.V.S, Bidar were appointed as the competent authority under the said Act for the local areas falling within Bidar Taluk. Respondent No.2 therefore, had no authority either to search or to seize the meat, even if it was a cow meat. The learned counsel has pointed out that the stand taken up by the third party intervener and the learned High Court Government Pleader itself makes it evident that the seized meat is "buffalo meat"
and not cow meat and therefore, the provisions of the Act of 1964 are not applicable to the facts of this case.
7. In support of his argument, the learned counsel has placed reliance on two decisions of this Court in 10 W.P.No.102694/2018 C/W W.P.No.102695/2018 dated 28.06.2018 in the case of M/S Barafwala Cold Storage And Agro Processor and Criminal Petition No.100702/2018 dated 17.04.2018 in the case of Shrusthi Agro & Cold Storage.
8. The learned High Court Government Pleader however has conceded that petitioner No.3 was the custodian of the seized meat and since the said meat was seized from the possession of petitioner No.3, the prosecution has no objection to release the said meat to petitioner No.3.
9. Sri Sachin M. Mahajan, learned counsel appearing for the third party intervener however, has opposed the prayer contending that the action initiated against the petitioners is justified and the facts alleged in the F.I.R and the contents of the seizure mahazar clearly make out the offences under Sections 420 and 429 of IPC as well as Sections 9 and 12 of the Act of 1964.
10. In the light of the above contentions, the pivotal issues that emerge for consideration are:-
11
1) Whether the provisions of Sections 420 and 429 of IPC are attracted to the facts of the case?
2) Whether the petitioners are entitled for release of the meat seized under PF Nos.6/2018 and 7/2018?
11. In order to answer the above questions, it is necessary to refer to Section 420 and 429 of IPC. Sections 420 and 429 of IPC read as under:-
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees.-Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other 12 animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
12. Cheating can be committed in either of the two ways described in Section 415 of IPC. (i) By deception practiced upon a person, the accused dishonestly or fraudulently induces that person to deliver the property to any person, or to consent that any person shall retain any property; ii) By practicing deception, the accused intentionally induces the person to do or omit to do anything, which is likely to cause damage or harm to that person in body, mind, reputation or property.
13. The offence under Section 429 of IPC essentially consists of mischief whereby the offender intends to cause loss or damage to the owner of the animal by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox.
14. In the instant case, the gravamen of the accusations against the petitioners are that, the petitioners were indulging in 13 processing cow meat from unknown sources and the said meat was being packed in small packets and was offered for sale or export by affixing the label "Super Fresh frozen boneless buffalo meat". The further allegation is that the said business was carried on without any licence, which amount to cheating and mischief within the meaning of Sections 420 and 429 of IPC.
15. The above allegations, even if accepted as true, in my view, do not attract either Section 420 or Section 429 of IPC. It is not the case of the respondents or the intervener that the petitioners were involved in killing or maiming any animals. There is no allegation from any quarters that the petitioners were cheating the general public by passing off cow meat under the label of buffalo meat. The allegation is that they had no licence to run the business. Even though in the complaint and the F.I.R it is alleged that cow meat was being packed in the cold storage of the petitioners, yet in the course of hearing, the learned High Court Government Pleader has conceded that what was seized from the cold storage of the petitioners was buffalo meat and not cow meat. The intervener in her objection statement has contended that the petitioners were involved in 14 the sale of "cow beef" in violation of Section 9 of the Act of 1964. It is not known how the respondents could come to the conclusion that the meat found in the cold storage of the petitioners was "cow meat" just by its appearance. In the panchanama prepared by respondent No.2, all throughout it is stated that cow meat was being packed in the said cold storage. Even in PF No.6/2018, it is mentioned that the seized property contained 30 tons of cow meat. As against this, the stand taken up by the intervener in her objection statement at page No.7 reads thus:-
"Further, the possession of the petitioners with respect to the meat is till now uncertain- as to whether the petitioners are owners or custodians of the said meat. On their claim of being owners, the petitioners are directly involved in cow beef sale in violation of Section 9 of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 and on for causing slaughter of cows under Section 4 of the same Act."
16. Undeniably, the F.I.R is registered only for the offences punishable under Sections 420 and 429 of IPC. When it is the case of respondent No.2 as well as respondent No.1 that 15 the seized property was "cow meat" and that the said meat was being packed in violation of the Act of 1964, one fails to understand as to why at the earliest instance the respondents had not taken recourse either to the provisions of the Act of 1964 or the Food Safety and Standards Act, 2006? It is only in the midst of the investigation, an application appears to have submitted to the Court to incorporate the provisions of the Act of 1964 and Food Safety and Standards Act, 2006. This itself indicates that at the time of conducting the search by respondent No.2 and at the time of registration of the F.I.R., the respondents were very well aware that the meat stored in the cold storage of the petitioners was not cow meat and having realised that the provisions of the IPC were not attracted to the alleged acts, an application appears to have been made to incorporate the provisions of the Act of 1964 and the Food Safety and Standards Act, 2006.
17. Be that as it may, assuming for the sake of argument that the meat found in the cold storage of the petitioners was procured by killing and maiming cows and by affixing a fake label the said meat was offered for sale to the 16 general public, indubitably respondent No.1 or respondent No.2 had no authority or jurisdiction either to enter the premises of the petitioners or to seize the aforesaid commodities.
18. Section 4 of the Act of 1964 prohibits slaughter of cow or calf of she-buffalo. Section 8 restricts the transport or offer for transport any animal or cow from any place within the State to any place outside the State. There are no allegations attracting any of these offences.
19. Section 10 of the Act of 1964, which is relevant for our discussion reads thus:
"10. Power to enter and inspect.--(1) For the purposes of this Act, the competent authority or any person authorised in this behalf by the competent authority (hereinafter referred to as the "authorised person") shall have power to enter and inspect any premises where the competent authority or the authorised person has reason to believe that an offence under this Act has been or is likely to be committed.
(2) Every person in occupation of any
such premises shall allow the competent
authority or the authorised person such access to the premises as may be necessary for the aforesaid 17 purpose and shall answer to the best of his knowledge and belief any questions put to him by the competent authority or by the authorised person."
20. From the above provision, it is clear that only the "competent authority" or the "authorised person" is empowered to search and seize the properties in respect of which an offence has been committed under the said Act.
21. By virtue of notification issued by the Government in exercise of the powers conferred under Section 3 of the said Act, vide notification No.LMA 47(4) GGL 66, Bangalore, dated 21st February, 1967, the Veterinary Assistant Surgeon, Veterinary Hospital, Bidar, Extension Officer, Animal Husbandary, Bidar and Veterinary Assistant Surgeon, K.V.S, Bidar are appointed as "competent authority" under the said Act for the aforesaid local areas. Respondent No.2 undisputedly was not an authorised officer or the competent authority under the provisions of the said Act. He did not have any powers of police officer under the provisions of the code of Criminal Procedure. Therefore, on the face of it, respondent No.2 had no jurisdiction either to enter the premises of the petitioners or to search and seize any of the 18 objectionable articles found therein, even if it was cow meat. Consequently, it has to be held that the search and seizure conducted by respondent No.2 is manifestly illegal, without authority of law and therefore void ab-initio.
22. Another equally atrocious and obnoxious act which adds to the illegalities and exposes the oblique motive and the malafides of the respondents is that, respondent No.2 has conducted the aforesaid search and seized a huge quantity of meat in the presence of P.S.I, New Town Police Station and the whole contingent of New Town Police Station much before the registration of the F.I.R. In this context, it is relevant to note that according to the intervener, she had lodged a complaint before the New Town Police Station, Bidar. She is specific in her assertion that the police took the said complaint from her. If so, there is no explanation by the respondents as to why the said complaint is suppressed and as to why the intervener participated in the seizure panchanama conducted by respondent No.2 without registering the complaint. The narration in the panchanama indicates that even the intervener, who claims to be the complainant before the police was very much present 19 during the preparation of the panchanama by accused No.2. When she had lodged the complaint before the New Town Police Station, there was no reason for her to participate in the investigation conducted by respondent No.2, that too without any notice.
23. From the stand taken by the intervener, it is clear that respondent No.1 namely, New Town Police Station had the information of the alleged offence much before they received the complaint from respondent No.2. Therefore, it was incumbent on respondent No.1 to register the F.I.R based on the complaint lodged by the intervener, if infact it disclosed a cognizable offence. Section 154 of Cr.P.C. in unambiguous terms requires the police officers to register the F.I.R and then proceed to investigate the case.
24. It is really shocking to note that inspite of receiving a complaint from the intervener, respondent No.1 allowed respondent No.2 to conduct a search in their presence and the jurisdictional police officers even participated in the seizure mahazar and thereafter made a show of receiving a complaint from respondent No.2 and lodged the F.I.R. All these 20 circumstances point out that the respondents including the interevener were acting hand in glove and with malafide intention to create evidence against the petitioners, took the law into their own hands and highhandedly searched the premises of the petitioners and kept it under their custody and only thereafter proceeded to register the F.I.R. Since the very initiation of the proceedings and registration of the F.I.R is contrary to Section 154 of Cr.P.C. and the law laid down by the Hon'ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and Others [(2014) 2 SCC 1], I do not have any hesitation to hold that the search and seizure conducted by respondent No.2 is void, illegal and bad in law.
25. Even though the learned High Court Government Pleader and learned counsel appearing for the intervener were repeatedly asked to explain the power and the authority of respondent No.2 to conduct the search and seizure, no satisfactory explanation has been offered justifying the acts of respondent No.2. In my view, having regard to the specific provisions contained in the Act of 1964, seizure of alleged meat by respondent No.2 and drawing up of panchanma is wholly 21 illegal, without authority of law and a total abuse of the process of Court and therefore, solely on this ground, the seizure effected by respondent No.2 is liable to be set at naught.
26. Another illegality which stares on the face of the record is that, the alleged seizure has been effected in utter violation of the procedures contemplated under the Code of Criminal Procedure. Assuming that the alleged objectionable articles were found in the premises of the petitioners as contended by the respondents, Section 94 of the Cr.P.C. required the respondents to obtain search warrant from jurisdictional Magistrate to enter and search the premises of the petitioners. In this context, it may also be apposite to refer to Section 100 of Cr.P.C., which lays down the procedure as to search and seizure.
27. Sections 100(4) and 100(5) of Cr.P.C. which are relevant for our purpose are extracted hereinbelow:-
"100. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the 22 place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it."
28. The above requirements are not an empty formality. When the intended search has the effect of depriving the petitioner of his right to the possession over valuable properties, failure of the respondents to adhere to these mandatory requirements also renders the alleged search and seizure illegal in the eye of law.
29. It is really shocking to note that a huge quantity of meat is seized by respondent No.2 and subsequently by the Investigating Officer under two separate panchanamas in the absence of the petitioners, without preparing a list of articles and 23 without preparing an inventory. The panchanama prepared by respondent No.2 indicate that the articles were not weighed. But, surprisingly, in the seizure memo as well as in the panchanama, it is noted that 30 tons of meat was seized. This itself creates doubt about the genuineness and the authenticity of the seizure panchanama, which is made the basis for launching the prosecution against the petitioners. The manner in which respondent No.2 has deprived the petitioners of their right to the properties in utter disregard of the procedure contemplated under the Code is highly deprecatory and deserves to be condemned in strongest terms.
30. Another illegality noticed in the proceedings conducted by the respondents is that the property seized by respondent No.2 was taken into custody by the SHO of New Town Police Station and the very same officer received the complaint from respondent No.2 as if it was the first information When in fact the entire contingent of New Town Police Station had accompanied respondent No.2 to facilitate the illegal seizure; These circumstances lead to the inevitable conclusion that it was a predesigned raid calculated to create evidence 24 behind the back of the petitioners. Equally it is shocking to note that within four hours after receiving the property from respondent No.2, once again the P.S.I of the very same Police Station conducted a second panchanama and seized another quantity of 3,54,200 Kgs of meat by drawing a continuation panchanama. This property was subjected to PF No.7/2018, whereas the property received from respondent No.2 was subjected to PF No.6/2018. Thus, a total quantity of 30 tons plus 3,54,200 Kgs of meat is said to have been seized by respondent Nos.1 and 2.
31. In the earlier panchanama prepared by respondent No.2, he has specifically noted that after collecting the sample, he seized the remaining meat found in the cold storage and it weighed 30 tons. When the objectionable property was already seized by respondent No.2, it is surprising to note that within four hours therefrom the PSI of the very same police station could find another quantity of 3,54,200/- Kgs in the very same premises. Interestingly, this property is also described as cow meat, though in the continuous panchanama the PSI of the Town Police Station has unequivocally stated that he did not collect 25 any sample therefrom. Therefore, it is clear that the respondents have proceeded on the assumption that the entire lot of meat found in the cold storage of the petitioners was cow meat.
32. No doubt, in the course of the investigation a DNA report appears to have been obtained by the respondents, wherein it is certified that the sample examined by the FSL was a cow meat. The said report does not even refer to the date when the said samples were received and were subjected to examination by the FSL authorities. It does not contain the grounds and reasons for justification of the opinion given in the said certificate. According to the Investigating Officer, who seized 3,54,200 Kgs of meat, he had not collected any samples therefrom. Therefore, the contention of the respondents that the entire seized meat was cow meat is baseless and cannot be accepted. All these circumstances therefore indicate that without there being any prima facie material in proof of the allegations, the petitioners are sought to be prosecuted on the assumption that the petitioners were dealing in cow meat.
33. It is not in dispute that the petitioners were running the cold storage under the licence issued by the competent 26 authorities constituted under the provisions of Food Safety and Standards Act, 2006. Though it is contended that the said licence had expired as on the date of the alleged seizure, yet the petitioners have produced the subsequent renewal which indicates that the competent authorities under the Food Safety and Standards Act, 2006 did not find any illegality committed by the petitioners as sought to be contended by the respondents. On the other hand, by collecting the necessary fees, the licence of the petitioners has been renewed and the same is in operation till date. Even assuming that the petitioners were found indulging in the storage of meat without proper licence, even then, Section 29 of the Food Safety and Standards Act, 2006 invested the powers to enforce the violation of the said act only on the authorities constituted under the said Act and not on the respondents. In this score also, the action initiated by the respondents has to be held as illegal and without authority of law.
34. Section 41 of the Food Safety and Standards Act, 2006 deals with the power of search, seizure, investigation and prosecution. The said section reads as under : - 27
"41. Power of search, seizure, investigation, prosecution and proce dure thereof.-(1)Notwithstanding anything contained in sub-section (2) of section 31, the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food and shall thereafter inform the Designated Officer of the actions taken by him in writing:
Provided that no search shall be deemed to be irregular by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated."
35. Section 42 of the Food Safety and Standards Act, 2006 deals with the procedure for launching of prosecution. This Section provides that :-
"(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the
sample from the Food Safety Officer shall
analyse the sample and send the analysis report
mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.
28(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,-
(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a Court of ordinary jurisdiction.
(5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to 29 the purchaser if the sample was taken under section 40."
36. The procedure of taking samples and the manner of sending it for analysis are dealt in Para No.2.4(i). The respondents in the instant case therefore had no authority either to draw the samples or to launch the prosecution even if it is assumed that the business was being run by the petitioners in violation of the terms and conditions of the licence or without any licence as contended by the respondents. Therefore, viewed from any angle, the action initiated by the respondents is indefensible. The respondents had no authority or jurisdiction whatsoever either to register the case against the petitioners for the alleged violations of the provisions of the Act of 1964 and Food Safety and Standards Act, 2006 or to seize the objectionable articles from the premises of the petitioners. As a result, I hold that the entire process initiated against the petitioners being illegal and violative of the provisions of law referred above cannot be sustained.
37. Ordinarily, the powers under Section 482 of Cr.P.C. would not be exercised at the F.I.R stage where all the facts are 30 incomplete and hazy; but when on the admitted facts, the registration of the case and seizure of the properties are found to be manifestly illegal and without authority of law and owing to non-compliance of the mandatory requirements prescribed under law, the entire proceedings are vitiated and the legal rights of the petitioners/accused are trampled with impunity, the inherent jurisdiction of the Court must necessarily to be exercised to prevent abuse of the process of Court and to secure the ends of justice. In this context, an useful reference could be made to the observations made by the Hon'ble Apex Court in the case of State of Karnataka v. Muniswamy & Others (1977 (2) Kar.L.J. 483), wherein dealing with the scope and amplitude of Sections 227 and 482 of Cr.P.C., the Apex Court has observed thus:-
"In the exercise of this whole some power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding 31 ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent power of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
38. Thus, on consideration of all the above facts and circumstances, I hold that the proceedings initiated against the petitioners being illegal, without authority of law, malafide, high handed and abuse of the procees of law cannot be permitted to degenerate into a weapon of harassment and persecution of the petitioners. For the reasons discussed above, the entire proceedings initiated against the petitioners and the consequent 32 seizure are vitiated and therefore, liable to be quashed in entirety.
39. Having come to the above conclusion, the question with regard to the return or release of the seized properties are concerned, may not detain us any longer. As the seizure of the property and the consequent registration of the case against the petitioners in Crime No.11/2018 is held to be illegal and invalid, for the reasons discussed above, it necessarily follows that the seized properties shall be released to the petitioners, who are legally entitled to the possession thereof. It is conceded by the respondents that the petitioners were the custodians of the meat found in the cold storage. Learned High Court Government Pleader has fairly conceded that since the properties were seized from the possession of petitioner No.3, the State has no objection to return the same to petitioner No.3.
40. It is borne on record that after the seizure of the properties, the same was reported to the jurisdictional Magistrate. Though there is unexplained delay of two days in reporting the seizure, yet the learned Magistrate has permitted the SHO of the New Town Police Station to retain the subject 33 matter of PF No.6/2018 and the ASI - Sri Ashok Kumar of the said police station is permitted to retain the subject matter of PF No.7/2018. In view of this order, the legal custody of the properties remains with the Court. Therefore, only the Magistrate is required to release the said properties. As there is no dispute with regard to the entitlement of the petitioners to take release of the properties covered under PF Nos.6/2018 and 7/2018, the jurisdictional Magistrate is directed to return all the properties covered under PF No.6/2018 and 7/2018 to the custody of petitioner No.3. Though in view of quashing of the entire proceedings no bond is required to be taken from petitioner No.3 while taking release of the said properties, yet the order passed by this Court being amenable for challenge before the Apex Court, it is appropriate in the interest of justice to direct petitioner No.3 to execute proper bond while taking release of the properties from the Magistrate. Accordingly, answering the above points, I proceed to pass the following order:-
i) The petition is allowed. The F.I.R in Crime No.11/2018 dated 25.01.2018 - Annexure-A and the 34 entire proceedings thereon pending on the file of II Additional Senior Civil Judge and JMFC Court, Bidar are quashed.
ii) The jurisdictional Magistrate is directed to return all the properties covered under PF Nos.6/2018 and 7/2018 to the custody of Petitioner No.3 - Sri Abdul Hafeez on execution of proper bond for the value as found appropriate by the leaned Magistrate.
iii) Liberty is reserved to the petitioners to claim damages from the respondents for the wrongful loss and damage caused to the petitioners on account of unlawful seizure of the meat belonging to the petitioners.
iv) It is made clear that this order shall not come in the way of the competent authority or the authorised person constituted under the provisions of the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 and the Food Safety and Standards Act, 2006 to take appropriate action 35 against the petitioners, if any violation of the provisions of the said Acts are found to have been committed by the petitioners.
In view of the above order, I.A.1/2018 does not survive for consideration and the same is dismissed; I.A.2/2018 filed by the petitioners under Section 457 of Cr.P.C. and I.A.3/2018 filed by the third party intervener under Section 301(2) of Cr.P.C. are allowed.
Sd/-
JUDGE LG