M/S. Lakshmi Traders vs. The Designated Officer (Thanjavur District)
Original PDF →Facts
M/s. Lakshmi Traders, a partnership firm dealing in tobacco products and registered under GST, filed a writ petition seeking to quash a seizure memo dated 27.08.2022 issued by the Food Safety Officer. The seizure was based on alleged contravention of Regulation 2.3.4 and Section 26 of the Food Safety and Standards Act, 2006. Subsequently, on 07.10.2022, the police registered an FIR under COTPA Act, 2003, and IPC, seizing raw tobacco, vehicles, and cash. The petitioner's partners were arrested and later released on bail. The petitioner contended that the seized products did not fall under the cited provisions. The petitioner had also filed an appeal before the Designated Authority under Section 46(4) of the Food Safety and Standards Act, 2006.
Held
The Court dismissed the writ petition. Regarding the petitioner's reliance on the Division Bench judgment, the Court noted that the Supreme Court had stayed that judgment on 25.04.2023, rendering it non-applicable. Concerning the Single Judge's order in W.P(MD)Nos.18115 of 2021 and batch, the Court found its reasoning to be per incuriam. The Court rejected the comparison of tobacco products with liquor sales, stating that each product affecting public health must be viewed independently. The Court emphasized that tobacco is injurious to health, and its sale cannot be justified by the State selling other products. The Court also highlighted that the Single Judge's order failed to refer to Section 38 of the Food Safety and Standards Act, 2006, which empowers the Food Safety Officer to seize articles of food appearing to be in contravention of the Act or regulations. The Court found that Section 38(1)(b) clearly grants the authority to seize based on the officer's 'appearance' of contravention, allowing for subsequent examination. Furthermore, the Court observed that the petitioner had already filed an appeal before the Designated Authority, and all grounds could be raised there. The Court held that it should not enter the jurisdiction of the statutory appellate authority under Article 226 when an alternative remedy exists. The seized items were identified as 800 kgs of chewable tobacco raw materials and 100 kgs of tobacco cutting pieces, clearly tobacco products.
Key Issues
1. Whether the seizure memo dated 27.08.2022, issued by the Food Safety Officer under Section 38 of the Food Safety and Standards Act, 2006, is illegal and liable to be quashed? Petitioner's arguments: The petitioner argued that the seized tobacco products do not fall under Regulation 2.3.4 or Section 26 of the Food Safety and Standards Act, 2006. They relied on a Division Bench judgment of the Madras High Court in W.A.No.2093 of 2018 and batch, which held that notifications issued by the Commissioner of Food Safety relying on Regulation 2.3.4 were beyond his powers. They also referred to a Single Judge's order in W.P(MD)Nos.18115 of 2021 and batch, which concluded that tobacco products are not covered under the definition of 'food' in Section 3(1)(j) and Regulation 2.3.4, and questioned the State's reliance on Article 47 of the Constitution while promoting liquor sales. Respondents' arguments: The respondents, through the Special Government Pleader, did not explicitly present arguments in the judgment text but filed a counter affidavit. The Court, however, addressed the petitioner's reliance on previous judgments.
Sections Cited
Section 38, Section 46(4), Regulation 2.3.4, Section 26, Section 3(1)(j), Article 47, COTPA Act, 2003, Section 328 of IPC
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Before: and
This Writ Petition had been filed in the nature of a Certiorai seeking records relating to a seizure memo, dated 27.08.2022 by the second respondent/Food Safety Officer, Thiruppanandhal Block & Thiruvidaimarudur Block, Tamil Nadu Food Safety and Drug Administration, Office of the Deputy Director of Health Services, Thanjavur, in the name of the petitioner company, M/s.Lakshmi Traders, Ammachatram, Thiruvidaimaruthur Taluk, Thanjavur District and to quash the same and to pass further directions. 2/11 https://www.mhc.tn.gov.in/judis
Heard Mr.P.M.Vishnuvarthanan, learned Counsel for the petitioner and Mr.N.Muthu Vijayan, learned Special Government Pleader for the respondents. The learned Special Government Pleader had also filed counter affidavit. 3.In the affidavit filed in support of this Writ Petition, it had been stated that the petitioner is running a tobacco manufacturing unit as a partnership firm and had obtained necessary licences and registration under the Goods and Services Tax Act. It had also been stated that the second respondent had inspected the processing unit at Ammachatram at Thiruvidaimaruthur Taluk in Thanjavur District and also the stock room- cum-godown on 27.08.2022 and had issued a seizure memo in Form No- II on 27.08.2022, which has been issued under Section 38 of the Food Safety and Standards Act, 2006. 4.The main premise under which the goods were seized was that they were contradictory to Regulation 2.3.4 and to Section 26 of the aforementioned Act. It is contended by the petitioner that the seized products do not fall under such Regulation 2.3.4 or under Section 26 of 3/11 https://www.mhc.tn.gov.in/judis
the Act. It had been stated that the third respondent on 07.10.2022 further seized 10 tons raw tobacco along with one Omni van and APE auto along with Rs.60,000/- cash and had registered an FIR in Cr.No.985 of 2022 under Sections 5, 20(1), 22(a) and 24(1) of COTPA Act, 2003, r/w Section 328 of IPC. It had been stated that the respondents are in possession of the seized items and the petitioner and his partner were also arrested and they have subsequently obtained bail. 5.The learned Counsel for the petitioner first placed reliance on the judgment of a Division Bench of this Court in W.A.No.2093 of 2018 and in W.P.Nos.3076 and 3084 of 2019, [The Designated Officer, The Food Tobacco Traders LLP], dated 20.01.2023, wherein, after quite an elaborate discussion, the Division Bench appears to have taken a view in favour of the respondent/Writ Petitioner therein and had stated that the various notifications issued by the Commissioner of Food Safety by relying on Regulation 2.3.4 are not within the powers of the Commissioner and that the Commissioner had exceeded his authority in issuing successive notifications. The notifications were struck down and 4/11 https://www.mhc.tn.gov.in/judis
Writ Appeal was dismissed and the Writ Petitions were allowed. 6.It must be stated that though an impression was given that the order of the Division Bench is still in force, a little research showed that the Honourable Supreme Court had actually stayed the said Division Bench judgment very specifically, by order dated 25.04.2023. In view of that particular order of the Honourable Supreme Court, no reliance can be placed on the judgment of the Division Bench. 7.The learned Counsel for the petitioner then placed reliance on the common order of the learned Single Judge in W.P(MD)Nos.18115 of 2021 and batch [M.s,E.S.Mydeen and Company, Kumbakonam vs Designated Officer (Thanjavur District) Tamil Nadu Food Safety and Drug Administration, Thanjavur], wherein, tobacco products have been seized, but taking recourse an emergency prohibition order No. 513-5(Taj)/A1/FSSA/2021, dated 01.10.2021. The learned Single Judge first examined the definition of “Food” as given under Section 3(1)(j) of the Food Safety and Standards Act, 2006 and then examined Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on 5/11 https://www.mhc.tn.gov.in/judis
Dales), Regulations, 2011, and had come to conclusion that the definition of “food” is not covered under Regulation 2.3.4. 8.The learned Single Judge also referred to Article 47 of Constitution of India and wondered as to how the State can place reliance on the said Article, when the State promotes TASMAC shops and stated that on the one hand, the State is effectively, according to the learned Judge, promoting sales of liquor, while on the other hand, the State prohibits the sale of tobacco products, which an equally injurious to health. 9.Let me at the very outset, very clearly state that the said observations of the learned Single Judge are per incurium. I am of the firm view that every product affecting the health of the common public should be viewed independently not compared with any other product. If taking tobacco is injurious to health, it is injurious to health. The sale of that product cannot be justified, merely because, some other product is being sold by the State. Each product must be viewed independently and tobacco should be viewed independently and it is a fact that it is injurious 6/11 https://www.mhc.tn.gov.in/judis
to health. Arguments should be restrained and reasoning should be restricted only to that particular product and not to any other product. Therefore, I hold that this particular reasoning of the learned Single Judge is per incuriam and is rejected by me and I very specifically and categorically hold that it is not binding on this Court. This Court has to independently examine the materials on record so far this Writ Petition is concerned. 10.Nowhere in the order has the learned Single Judge referred to Section 38 of Food Safety and Standards Act, which facts gives me additional material to reject the reasonings given by the learned Single Judge. The products in this case have been seized under Section 38 of the said Act. There should have been atleast a cursory reference to Section 38 of the Act, which reads as follows:
Powers of Food Safety Officer. - 1. The Food Safety Officer may- a. take a sample- i. of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or b. seize any article of food which appears to the Food Safety Officer to be in contravention of this Act
or the regulations made thereunder; and ......” 7/11 https://www.mhc.tn.gov.in/judis
Section 38(1)(b) of the Act gives authority and a responsibility is as a matter of fact cast on the Food Safety Officer, to seize any article of food, which “appears” to the Food Safety Officer to be in contravention of the Act and the regulations made thereunder. The word used by the Legislature is very clear. It is “appears”. Therefore, in the first instance, seizure is permitted and thereafter, the items seized should be subjected to further examination and further testing. 12.It is also seen from the records that the petitioner had filed an appeal before the Designated Authority as provided under Section 46(4) of the Food Safety and Standards Act, 2006. In effect, the petitioner wants to ride two horses at the same time. He wants examination of the issue of seizure of the products by the Appellate Authority and also wants this Court to examine the validity of such seizure. All necessary points can be raised before the Appellate Authority and this Court while invoking Article 226 of Constitution need not and should not enter into the juri iction of that statutory authority. That respect must be borne in mind while examining any quasi judicial act taken by the officer. 8/11 https://www.mhc.tn.gov.in/judis
For the sake of completion of facts, it must be mentioned that the product seized in the instant case were 800 kgs chewable tobacco raw materials with printed label and 100 kgs of tobacco products cutting piece for peeking. One fact is clear, that they are tobacco products. So long as Regulation 2.3.4 and so long as Section 38 of Food Safety and Standards Act, 2006, are in force and are on the statute book, the Food Safety Officer has every right to seize the products. 14.All grounds can be raised before the Appellate Authority. The Writ Petition has been filed more out of misconception probably hoping that this Court would be swayed by the various orders referred. This Court is not swayed. The judgment of the Division Bench has been stayed and the judgment of the learned Single Judge is hold per incuriam. 15.The Writ Petition stands dismissed. No costs. Consequently, connected miscellaneous Petition is closed.
Index :Yes / No 05.06.2023 Internet :Yes NCC : Yes/No cmr 9/11 https://www.mhc.tn.gov.in/judis
To 1.The Designated Officer (Thanjavur District), Tamil Nadu Food Safety and Drug Administration, Office of the Deputy Director of Health Services, Gandhi Road, Thanjavur – 613 001. 2.Food Safety Officer, (Thiruppanandhal Block & Thiruvidaimarudur Block), FSO Code 217, Tamil Nadu Food Safety and Drug Administration, Office of the the Deputy Director of Health Services, Gandhi Road, Thanjavur – 613 001. 3.The Inspector of Police, Thiruvidaimaruthur Police Station, Thiruvidamaruthur, Thanjavur District. 10/11 https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN, J.
cmr Order made in W.P.(MD)No.8968 of 2023 05.06.2023 11/11 https://www.mhc.tn.gov.in/judis
Reproduced from the public record of the Madras High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.