M/S Dharmpal Satyapal Ltd. v. State of Kerala and Commissioner of Food Safety, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **MONDAY, THE 8TH DAY OF JULY 2013/17TH ASHADHA, 1935** ## **WP(C).No. 14199 of 2013 (Y)** **----------------------------------------** ## **PETITIONER:** **-------------------** **M/S.DHARMAPAL SATYAPAL LTD., 6/163 B, C.D.E, K.B.A COMPLEX, KJODAPPILLY, PATHALAM, ERNAKULAM, 683 501, REPRESENTED BY ITS SENIOR MANAGER - MR.V.R.SHIVAKUMAR.** **BY ADVS.SRI.ANIL D. NAIR, SRI.J.R.PREM NAVAZ, SMT.NIVEDITA A.KAMATH, SRI.SREEJITH.R. NAIR.** ## **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.** ## **2. COMMISSIONER OF FOOD SAFETY, GOVERNMENT OF KERALA,TRIVANDRUM- 695 001.** **BY SR. GOVERNMENT PLEADER SRI. TOM.K.JOSE.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-07-2013, THE COURT ON 08-07-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.14199/2013-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1: TRUE COPY OF THE WRIT APPEAL BEARING NO 1685/2012 FILED BY THE PETITIONER.** - **EXHIBIT P2: TRUE COPY OF THE ORDER IN W.A NO 1685 OF 2012 DATED 03-10-2012.** - **EXHIBIT P3: TRUE COPY OF THE F I R DATED 28-04-2013.** - **EXHIBIT P4: TRUE COPY OF THE SEIZURE MAHAZAR DATED 28-04-2013.** - **EXHIBIT P5: TRUE COPIES OF THE LICENSES GRANTED TO THE PETITIONER BY THE COMPETENT AUTHORITIES AT CHENNAI TO SELL AND DISTRIBUTE THE SUBJECT PRODUCTS PANMASALA IN THE STATE OF KERALA.** - **EXHIBIT P6: TRUE COPIES OF THE ENLARGED LABELING AND THE CONTENTS ON EACH POUCH OF PANMASALA.** - **EXHIBIT P7: TRUE COPIES OF THE INVOICE, SUGAM E-FORM WAY BILL.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **V.K.MOHANAN, J.** **------------------------------W.P.(C) No.14199 of 2013 ------------------------------Dated this the 8[th] day of July, 2013.** ## **J U D G M E N T** The petitioner is a public limited company and claims that they are engaged in manufacturing and trading of various food items amongst others including, salts, spices, soda water, dry fruits, mouth freshener, mineral water, 'panmasala' without containing tobacco or nicotine as an ingredient, which are manufactured and sold under various brands including “Rajnigandha”. The petitioner claims that it has got requisite permission, sanctions, and licenses for manufacture and production as well as sale of the aforesaid items of food in the country. According to the petitioner, the cause of action for filing the present writ petition arose as the 1[st] respondent State has seized certain boxes containing 'panmasala' under the brand name 'Rajnigandha', which according to the petitioner is a non 2 ## **W.P.(C) No.14199 of 2013** tobacco based product, under serious misconception and error that the seized items contain tobacco which is a prohibited article in the State of Kerala and further aggrieved by the crime, which was registered as Crime No.524/13 in the Walayar police station. According to the petitioner, the above goods were seized when the same being transported by M/s. Royal Enterprises, which is one of the distributors of the petitioner company in the State of Kerala, from Bangalore depot to the State of Kerala, under the erroneous presumption that the panmasala, which was being transported, contains tobacco or nicotine and therefore the same are liable to be seized. 2. It is the further case of the petitioner company that the products manufactured by the petitioner and sold through its distributors, dealers, retailers among others are governed by the Food Safety and Standard Act 2006 and Food Safety and Standards (Food Product Standards and Food Additives) Regulations 2011 made therein and the 3 ## **W.P.(C) No.14199 of 2013** petitioner has all permissions, sanctions and licenses from the competent authority to manufacture the said goods, over this country including the State of Kerala. According to the petitioner, the Government of Kerala, which is the 1[st] respondent in the above writ petition, has passed an order prohibiting the manufacture, the stockage, the sale or the distribution of 'Gutka' and 'panmasala' containing tobacco or nicotine as ingredients, in whatever the name in which it is available in market in the State of Kerala, with the observation that 'panmasala' is an article of food in which Tobacco and nicotine are used as ingredients and therefore the State Government, being satisfied with the expediency to prohibit gutka and panmasala as the food products, in which tobacco and nicotine are widely used as ingredients, prohibited the same vide circular No.A-1327/12/CFS dated 25.5.2012. According to the petitioner, aggrieved by the above circular, initially they approached this Court by filing W.P.(C) No.12352/12 and connected cases. When the 4 ## **W.P.(C) No.14199 of 2013** above writ petition came up for consideration along with identical matters, a learned Judge of this Court issued a common order dated 2.8.2012, by which it is concluded that, “It appears that during the pendency of the writ petitions and during the hearing of the matter, various items have been confiscated and kept sealed. After the impugned notification was issued, a circular dated 29.5.2012 produced as Ext.R2(1) in W.P.(C) No.12352/2012 was issued, by which time was granted upto 15.6.2012 for removing the articles from the State. The apprehension of the petitioners is that the confiscated articles will be readily destroyed. In the light of the order refusing stay of the notification impugned, it is only proper that time is granted for removal of the articles, for which a fresh order/circular will be issued.” Aggrieved by the above order, the petitioner herein who is the petitioner in W.P.(C) No.12352 of 2012 and the connected ones, preferred an appeal before this Court ie., W.A.No.1685/12 and according to the petitioner, a Division Bench of this Court by order dated 3.10.2012 in the above writ appeal, had clarified that the intention behind the Government order is to prohibit or ban production, 5 ## **W.P.(C) No.14199 of 2013** distribution and sale of gutka and panmasala containing tobacco or nicotine as ingredients, by whatsoever name they are available in the market in the State of Kerala. Ext.P2 is the above order of the Division Bench of this Court. So according to the petitioner, the petitioner's company being the manufacturers of various food items and Rajnigandha flavoured panmasala is one among its products, it is a standardised food product as per the Food Safety and Standard Act, 2006 and the same does not come under the purview of the Notification/ Government Order issued by the State Government of Kerala as the said notification is for imposing ban only on panmasala containing tobacco/nicotine and according to the petitioner, the said fact is clarified by the Division Bench of this Court as per Ext.P2 order. 3. It is the further contention of the petitioner that the food items now seized do not contain tobacco and the products containing tobacco is called 'gutka' and the same 6 ## **W.P.(C) No.14199 of 2013** cannot be termed as Panmasala. It is the further case of the petitioner that, as I indicated earlier, the goods now seized do not contain tobacco or nicotine and it is not a 'gutka' product. But the respondents have seized the same without any proper authority and seized in gross violation of the guidelines and directions contained in the above referred Government order and ignoring the clarification issued by Division Bench of this Court as per Ext.P2 order. Therefore, the petitioner approached this Court by filing the above writ petition under Articles 226 and 227 of the Constitution of India, praying inter alia the following : “(a) Issue a writ, order or direction in the nature of a writ of Mandamus directing the respondents not to detain, confiscate, and seize 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 Exhibit P3 pending final disposal of the 7 ## **W.P.(C) No.14199 of 2013** writ petition (d) issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.” 4. Heard Adv.Sri.Deepak Dhingare learned senior counsel for the petitioner and Sri.Tom K.Thomas Special Government Pleader to A.G. 5. The learned senior counsel for the petitioner through his persuasive arguments, it is submitted, after having invited my attention to Ext.P1 order of the learned single Judge of this Court and Ext.P2 order of Division Bench of this Court, particularly the circular No.A1327/12/CFS dated 29.5.2012 issued from the office of the Commissioner of Food Safety, Government of Kerala, that 'Rajnigandha' **-** a branded panmasala product of the petitioner's company, contains no tobacco or nicotine as an ingredient, to attract legal or penal proceedings against the petitioner or its product 'Rajanigandha'. According to the learned counsel, the respondent State has no authority to 8 ## **W.P.(C) No.14199 of 2013** detain or confiscate or seize any goods which are not covered by the above circular and as clarified by Ext.P2 order of the Division Bench of this Court. According to the learned counsel, the product of panmasala is defined under the Food Safety and Standards (Food Product Standards and Food Additives) Regulations 2011, which describes 'Panmasala' under Regulation '2.11.5' and thus according to the learned counsel, the ingredient of Rajnigandha is only panmasala and the same contains no tobacco or nicotine and according to the learned counsel, if the 'panmasala' contains tobacco, then it is called 'Gutka' and therefore the same cannot be 'panmasala'. It is the further submission of the learned counsel that, the consignment of 'Rajnigandha' - the panmasala, a product of the petitioner company and which is the subject matter of invoice No.11/C013/000003 dated 24.4.2013 of the petitioner, was transported to M/s Royal Enterprises, Alappuzha, through ABT parcel service vide L.R.No.29076 dated 24.4.2013, was 9 ## **W.P.(C) No.14199 of 2013** seized by the Commercial Tax Officer, Walayar check post, without any authority and sanction of law. According to the learned counsel, the Commercial Tax Officer, Walayar check post, has seized the product of the petitioner company erroneously and under serious misconception that the seized items are tobacco products. After showing me the container of 'Rajnigandha', it is the submission of the learned counsel that the ingredients shown on the cover are only permissible ingredients and therefore there is no violation of any statutory mandate or procedure and no penal liability is attracted. Learned counsel strenuously submitted that if the officers or the agents of the State are permitted to make such illegal seizure, it will affect the right of the petitioner and the same will amounts to interference with the commerce and trade being conducted by the petitioner company. Therefore, according to the learned counsel, the petitioner company is entitled to get released the seized article, which is the subject matter of 10 ## **W.P.(C) No.14199 of 2013** Crime No.524/13 of Walayar police station. 6. As directed by this Court, the 2[nd] respondent herein had filed a statement on 28.6.2013 and another statement by the Sub Inspector of police, Walayar police station. Sticking upon the above statement, the learned Government Pleader submitted that as per the provisions of the Food Safety and Standard Act 2006, the authorities constituted under the above Act are empowered to search, seize, investigate and prosecute any offence relating to food. The learned Government Pleader submitted that the food which was seized and which is the subject matter of the crime, comes within the definition of 'Food' as contemplated under the above Act. According to the learned Government Pleader, the question whether the food products transported by the petitioner were adulterated or contain nicotine or tobacco or whether the petitioner has violated any provisions of the Food Safety and Standard Act, or the Regulation thereunder can be decided only on 11 ## **W.P.(C) No.14199 of 2013** the basis of chemical analysis report upon the samples drawn from the seized article. However, in paragraph 3 of the statement dated 1.7.2013 it is stated that “In the above circumstances, this Honourable Court may be pleased to direct the Magistrate Court to release the seized articles to the District Food Safety Officer, Palakkad, for further action as contemplated under the Food Safety and Standards Act, 2006.” Whereas, in the statement dated 28.6.2013, filed by the Sub Inspector of Walayar police station, in paragraph 3 it is stated that, “In the above circumstances, it is most humbly submitted that this Honourable Court may be pleased to direct the Food Safety Authorities to take over the confiscated goods and deal with the same under the provisions of the Food Safety and Standards Act, 2006.” 7. I have carefully considered the arguments advanced by Adv.Sri.Deepak Dhingare, the learned senior counsel for the petitioner and Adv.Sri.Tom K.Thomas 12 ## **W.P.(C) No.14199 of 2013** Special Government Pleader to A.G. and I have perused the materials on record. 8. Having regard to the facts and circumstances involved in the case and in the light of the arguments advanced and in the light of the statements referred to above, I am of the view that, at this stage, this Court need not go into the merits or demerits of the contentions advanced by the petitioner or the allegations or claim of the respondents connected with the seizure said to have effected in Crime No.524/13 of Walayar police station. The fact which is beyond controversy is that the products of the petitioner company, namely 'Rajnigandha' covered by Invoice No.11/C013/000003 dated 24.4.2013 of the petitioner company, which was transported to M/s Royal Enterprises, Alappuzha, through ABT parcel service vide L.R.No.29076 dated 24.4.2013, was seized by the Commercial Tax Officer, Walayar check post. The 2[nd] respondent Commissioner of Food Safety, Government of 13 ## **W.P.(C) No.14199 of 2013** Kerala, Thiruvananthapuram, has no claim that the Commercial Tax Officer, Walayar, was authorised to effect any seizure connected with any contravention of any provision of the Food Safety and Standards Act, 2006. In the above two statements filed by the 2[nd] respondent as well as the Sub Inspector of police, Walayar police station, they have no claim that the seizure was effected at the spot through preparing any mahazar or the person who was carrying the article seized was arrested. It is also relevant to note that the alleged seizure was effected on 24.4.2013 and the above writ petition was filed on 4.6.2013 which was initially posted for admission on 5.6.2013. After the so called seizure on 24.4.2013, at least till the filing of the writ petition, the Sub Inspector of police, Walayar police station, has no case that he had informed the seizure to the 2[nd] respondent or the 2[nd] respondent has got a case that they were informed or they initiated any action in terms of the act. 14 ## **W.P.(C) No.14199 of 2013** 9. It is pertinent to note that as per the versions of the respondents 1 and 2, whether the food article seized is produced in violation of the Food Safety and Standards Act and the Regulation thereunder can be decided only on the basis of the outcome of the chemical analysis report of the samples drawn from such food items. But the learned senior counsel for the petitioner in his arguments asserted that 'Rajnigandha' - the products of the petitioner's company, do not contain tobacco or nicotine and therefore the respondents have no authority to seize such products of the petitioner's company. In view of the circular referred to above and in view of the clarification issued by the Division Bench of this Court, it can be seen that it is the interest of the State of Kerala to see that the sale of 'Gutka' and 'panmasala', containing tobacco or nicotine as the ingredients, are not manufactured, distributed or sold in the State of Kerala, as a welfare measure for the people of the State of Kerala and therefore the authority of the 15 ## **W.P.(C) No.14199 of 2013** agency or officials deputed to detect such violation cannot be questioned. However, the question whether the products of the petitioner's company, namely 'Rajnigandha' contain tobacco or nicotine, is a question of fact which can be dealt with and answered, especially in the present case, only on the basis of the chemical analysis report of the samples drawn from the seized contraband article. Therefore, no relief as sought for under prayer (a) can be granted unless a scientific report, namely, chemical analysis report is received, as indicated above. Therefore, the first prayer in the above writ petition is rejected for the time being. 10. Further, the second prayer, according to me, can be considered in favour of the petitioner, but subject to terms and conditions, so as to protect the interests of the petitioner as well as the respondents in the above writ petition. As I indicated earlier, it can be seen that till the filing of the present writ petition, neither the 2[nd] 16 ## **W.P.(C) No.14199 of 2013** respondent nor the Sub Inspector of police, Walayar police station, had approached the court below having jurisdiction over Walayar police station with the prayer as putforward before this Court in their statements. I am also not satisfied with the loss of parity contained in the above referred two statements, especially when both the statements are filed on behalf of the State. It is also not clear from the above two statements filed by respondents as to whether the so called seizure was effected on suspicion, that the seized article contains tobacco or nicotine. It is also a fact that the seizure is not effected by the 2[nd] respondent or by the Sub Inspector of Walayar police station from the Walayar check post. The above officials have no claim that any seizure mahazar was prepared then and there, or any person responsible for transporting the goods was arrested with the seized items. So, the alleged seizure is under shadow of serious doubt and about the pate of prosecution, if any, on the basis of 17 ## **W.P.(C) No.14199 of 2013** such seizure, under peril. The above referred statements never disclose any positive version as to whether the seized article produced before the court or whether the factum of seizure was intimated to the court concerned. Nobody brought to my notice that any person has approached the police or the court below for the release of the goods seized. Therefore, according to me, under the above facts and circumstances, the second prayer of the petitioner can be considered positively and the goods can be ordered to be released in its favour but subject to certain conditions. In the result, this writ petition is disposed of rejecting the first prayer but allowing the second prayer subject to the following directions and conditions :- 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 18 **W.P.(C) No.14199 of 2013** 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, 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 **3 weeks** 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 turn can approach the court 19 ## **W.P.(C) No.14199 of 2013** 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. 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 20 ## **W.P.(C) No.14199 of 2013** 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 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. It is made clear that the disposal of this writ petition by allowing the 2[nd] prayer, will not stand in the way of the 21 ## **W.P.(C) No.14199 of 2013** respondents or any competent authority under them, in initiating any proceedings against the contravention of any of the provisions of the Food Safety and Standard Act 2006 and Food Safety and Standards (Food Product Standards and Food Additives) Regulations 2011 in accordance with the circular No.A-1327/12/CFS dated 25.5.2012 and in terms of Ext.P2 order of the Division Bench of this Court, with respect to the food products of any manufacturer including the petitioner's company. Subject to the above clarifications, observations, terms and conditions, this writ petition is disposed of accordingly. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge