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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD28 CRIMINAL APPLICATION NO.470 OF 2021Shaikh Musa s/o Shaikh Alimoddin,Age 43 yrs., Occ. Business,R/o Raza Nagar, Hadgaon,Tq. Hadgaon, Dist. Nanded. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Hadgaon,Tq. Hadgaon, Dist. Nanded. 2Santosh Vitthalrao Kankawad,Age 50 yrs., Occ. Service asFood Safety Officer,R/o Shrinagar, Nanded,Tq. & Dist. Nanded. … Respondents...Mr. N.N. Narlawar, Advocate h/f Mr. B.N. Gadegaonkar, Advocate forapplicantMr. V.K. Kotecha, APP for respondent Nos.1 and 2...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE:07th AUGUST, 2025 228_Cri.Appln_470_2021ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed under Section 482 of the Codeof Criminal Procedure, 1973 initially for quashment of First InformationReport vide Crime No.271/2020 dated 18.12.2020 registered with PoliceStation, Hadgaon, Tq. Hadgaon, Dist. Nanded for the offence punishableunder Sections 188, 272, 273, 328 of the Indian Penal Code, 1860 and underSections 26(i), 26(2)(iv), 27(3)(d)(e), 30(2)(a), 59 of the Food Safety andStandards Act, 2006 and later on by way of amendment for quashing theproceedings in Sessions Case No.154/2021 pending before learnedAdditional Sessions Judge, Nanded. 2Heard learned Advocate Mr. N.N. Narlawar holding for learnedAdvocate Mr. B.N. Gadegaonkar for applicant and learned APP Mr. V.K.Kotecha for respondent Nos.1 and 2. 3Learned Advocate appearing for applicant has taken us throughthe entire charge sheet and submits that First Information Report has beengiven by Food Safety Officer, however, the ingredients of the offences are notgetting attracted as there is no evidence collected to prove that the placefrom where the seizure has been effected was ever in possession of applicant.In First Information Report as well as statements of witnesses it can be seen 328_Cri.Appln_470_2021that when the seizure was conducted, the house as well as godown wereclosed. The owner of house Shaikh Gaus who was present had then statedthat he had given the said premises on rent to present applicant. However,rent agreement has not been seized. Though the copy of electricity bill hasbeen collected, it stands in the name of one Smt. Zeenat Sajeda ShaikhKhwaja. Learned Advocate also submitted that the offence under Section 328of the Indian Penal Code will not get attracted as the articles which wereseized were only stored. 4Learned APP strongly objects the application and submits that ifthe test report is seen, then it would give that there was magnesium contentand in some product there was nicotine and the opinion has been given thatall the 22 samples are in respect of articles prohibited as per OrderNo.FSSA/Notification-369/7 dated 15.07.2020 of Commissioner of FoodSafety, Food and Drugs Administration, Government of Maharashtra. Thestatement of Shaikh Gaus in the panchnama would reflect that he had giventhose premises to present applicant on rent. The seized articles were worthRs.35,49,764/-. As the charge sheet has been filed, let there be trial. 5We would like to firstly consider the facts as to whether primafacie it is shown that accused had possession or was in any way having 428_Cri.Appln_470_2021control over the seized articles. If the answer comes in ‘Yes’, then only whichoffence can be said to have been committed is required to be gone into.Perusal of First Information Report would show that upon the secretinformation the informant, who is a Food Safety Officer, went with panch andofficers from his office as well as Police Officers to the place. The said placeis Raza Nagar, Hadgaon. The information that was received was in respect ofthe house. It was found to be closed. No responsible person was also foundnearby, then inquiry was made in the vicinity and then it was revealed thatthe applicant is carrying confectionary business and has a godown in thehouse of one Shaikh Gaus Shaikh Khwaja. Therefore, all of them went there.It is stated that the house was broke open in presence of panch and articlesworth Rs.2,10,000/- was found, which is mainly the Gutkha and in thegodown when the search was made in presence of said Shaikh Gaus, articlesworth Rs.33,39,764/- were found. If we consider the panchnama, it can beseen that only one person has signed it in the capacity as panch and that toothere is eraser/correction in the date. It can be taken as 17 or 18 ofDecember, 2020. Learned APP submits that the said raid was conducted byFood Safety Officer under Section 38 of the Food Safety and Standards Act,2006. Here, important point to be noted is that though in First InformationReport it is stated that even Police Officers were along with informant; yetthe Police Officer has not conducted the panchnama, but it is by the Food 528_Cri.Appln_470_2021Safety Officer. Section 38 of the Food Safety and Standards Act, 2006provides for the powers of Food Safety Officer. Only the relevant provisionsare considered, which are - “38. Powers of Food Safety Officer. - (1)……………….(2)The Food Safety Officer may enter and inspect any place wherethe article of food is manufactured, or stored for sale, or stored forthe manufacture of any other article of food, or exposed or exhibitedfor sale and where any adulterant is manufactured or kept, and takesamples of such articles of food or adulterant for analysis.(3)………………. (4)………………. (5) The Food Safety Officer shall, in exercising the powers of entryupon, and inspection of any place under this section, follow, as far asmay be, the provisions of the Code of Criminal Procedure, 1973 (2 of1974) relating to the search or inspection of a place by a police officerexecuting a search warrant issued under that Code.(10)……………….”5.1He also points Section 41 of the Food Safety and Standards Act,which runs thus - “41.Power of search, seizure, investigation, prosecution andprocedure thereof. - (1) Notwithstanding anything contained in sub- 628_Cri.Appln_470_2021section (2) of section 31, the Food Safety Officer may search anyplace, seize any article of food or adulterant, if there is a reasonabledoubt about them being involved in commission of any offencerelating to food, and shall thereafter inform the Designated Officer ofthe actions taken by him in writing :Provided that no search shall be deemed to be irregular by reasononly of the fact that witnesses for the search are not inhabitants of thelocality in which the place searched is situated. (2) Save as in this Act otherwise expressly provided, provisions of theCode of Criminal Procedure, 1973 (2 of 1974) relating to search,seizure, summon, investigation and prosecution, shall apply, as far asmay be, to all action taken by the Food Safety Officer under this Act.”6The conjoint reading would basically give that when the case isfiled for the offences or violation of the Food Safety and Standards Act, anyirregularity in the panchnama while conducting search and seizure by FoodSafety Officer cannot be questioned. However, here, it is a First InformationReport that has been lodged and offences under Section 188, 272, 273, 328of the Indian Penal Code are also invoked and, therefore, Sections 38(5) andSection 41(2) of the Food Safety and Standards Act should be followed.Section 42 of the Food Safety and Standards Act, 2006 deals with procedurefor launching prosecution. We rely upon the decision in Ram Nath vs. TheState of Uttar Pradesh and others [ (2024) AIR SC 1652]. 728_Cri.Appln_470_20217As aforesaid, in view of conjoint reading the panchnama oughtto have been within the parameters of Section 100 of the Code of CriminalProcedure. There ought to have been two panchas of the inhabitant, but herethere was only one panch, that too, from a different place, that is, not evenfrom the same town. 8After the registration of offence, statement of said Shaikh Gaushas not been taken under Section 161 of the Code of Criminal Procedure northe rent agreement has been collected. Therefore, except the allegedstatement in the panchnama, First Information Report and statements ofwitnesses there is nothing to show that, that godown was taken on rent. SaidGaus had no connection with the house of applicant, which was allegedlybroke open and contraband of Rs.2,10,000/- were seized. There are nodocuments seized by police which would show that any such house stands inthe name of applicant. When he was admittedly not present, he cannot besaid to be possessing or having control over the alleged articles seized. 9Even if we take that the seized articles were in violation of theprohibitory order dated 15.07.2020; yet when the possession or control hasnot been proved, the offences will not get attracted. The case cannot evenstand for the sections under Food Safety and Standards Act as First 828_Cri.Appln_470_2021Information Report has been lodged and in Ramnath (supra) it is held thatwhen there is a specific offence that is made out the prosecution for theoffences under Sections 272, 273 of the Indian Penal Code will not stand andfor the offences under the Food Safety and standards Act there has to be acomplaint by the concerned officer, as defined under Section 2(d) of the Codeof Criminal Procedure. 10Though the learned Judicial Magistrate First Class before whomthe proceedings is pending will have a jurisdiction to pass order in respect ofdisposal of property, many times such orders are not passed and, therefore,we direct learned Judicial Magistrate First Class / Additional Sessions Judgeto pass the order in respect of disposal of property upon receipt of writ. 11In view of all these facts, it would be an abuse of process of lawif the applicant is asked to face the trial. This is a fit case where we shouldexercise our powers under Section 482 of the Code of Criminal Procedure.Hence, following order. ORDERi)Criminal Application stands allowed. ii)The proceedings in Sessions Case No.154/2021 pending before 928_Cri.Appln_470_2021learned Additional Sessions Judge, Nanded arising out of First InformationReport vide Crime No.271/2020 dated 18.12.2020 registered with PoliceStation, Hadgaon, Tq. Hadgaon, Dist. Nanded, for the offence punishableunder Sections 188, 272, 273, 328 of the Indian Penal Code, 1860 and underSections 26(i), 26(2)(iv), 27(3)(d)(e), 30(2)(a), 59 of the Food Safety andStandards Act, 2006, stands quashed and set aside as against applicant viz.Shaikh Musa s/o Shaikh Alimoddin.iii)Learned Judicial Magistrate First Class / Additional SessionsJudge to pass the order in respect of disposal of property, upon receipt ofwrit. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd