High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.01.2009CORAM:THE HONOURABLE MR. JUSTICE S. MANIKUMARW.P.No.6808 of 2004WPMP.No.8024 & 8025 of 2004M.M.T.Hussain ... Petitioner Vs1. The Commissioner, Coimbatore Municipal Corporation, Coimbatore.2. The Deputy Commissioner of Police, Coimbatore Municipal Corporation, Coimbatore.3. The City Health Officer, Coimbatore Municipal Corporation, Coimbatore.4. The Health Inspector, Karunanidhi Nagar, Coimbatore. ... RespondentsThis writ petition has been filed under Article 226 of theConstitution of India to issue a Writ of Mandamus, forbearing therespondents from exceeding their jurisdiction i.e., conductinginvestigation raid, seizure without jurisdiction.For Petitioner : Mr.C.DeivasigamaniFor Respondents : Mr.R.Sivakumar ***** O R D E RThe petitioner has sought for a Mandamus, forbearing therespondents from exceeding their jurisdiction i.e., conductinginvestigation, raid, seizure without jurisdiction, in the premises. https://hcservices.ecourts.gov.in/hcservices/

2.Facts leading to the Writ Petition are as follows:It is a case of the petitioner that he is one of the dealersof pharmaceutical product called 'NU LIFE' supplied by M/s.Ceejayhealth Care Pvt. Ltd. 15-A, Willington Estate II Floor, 53,Commander-in-chief Road, Egmore, Chennai 8. According to him, theproduct is a pharmaceutical product containing "Nicotine PolaerilexUSP 26" and approved by the Government of India, the Ministry ofHealth and Family Welfare (Department of Health) by Gazettenotification No.F10/45(H)(1) dated 21.12.1945 and last amendedvide O.S.R.528(E) dated 8.7.2003. The product is under the Drugsand Cosmetics Act, 1940 and not under the Food and AdulterationAct, 1954. Though the manufacturer had already informed the DrugController, Tamilnadu in respect of the product 'NU LIFE' launchedin the market, the respondents 2 and 3 along with their officialscame to his residence, when the inmates had gone out, and brokenthe locks of the doors and forcibly entered into his house. Thewrit petitioner has further contended that almirahs and cup boardswere broken and they seized many boxes containing product 'NU LIFE'worth Rs.20,000/- and other household articles.3. The petitioner has further submitted that he has lodged acriminal complaint against the respondents 2 to 4 before the policeand no action has been taken in this regard. The manufacturer hasalso met the respondents on 30.9.2003 and clarified that theproduct sold was duly approved by the Ministry of Health,Government of India. The petitioner has further submitted that itis the exclusive domain and jurisdiction of the Drugs departmentand the respondents have no jurisdiction to enter into the premisesof the petitioner. It is further submitted that the respondentshave indulged in unleashing false propaganda against the petitionerin print and cellular media, stating that the product sold in themarket was banned and it has affected his business. In thesecircumstances, the writ petitioner has sought for direction to therespondents to pay compensation of Rs.10 lakhs for the illegal raidand seizure of the product.4. The first respondent in his counter affidavit has submittedthat NU LIFE Goodkha Chewetts and NU LIFE Eucomint Chewetts were onsale all over city in Coimbatore and these two products were madeavailable in medical and petty shops. These products were brandedas food articles, as prescribed under the provisions of thePrevention of Food Adulteration Act 1954. As per the Rule 42(ZZZ)(17) of the Prevention of Food Adulteration Rules 1955, a symbolwas printed on every pack so as to indicate that these products arevegetarian food. Therefore, it is submitted that the respondentshave every jurisdiction and authority to take samples and send theproducts for analysis and also for further action, if necessary as https://hcservices.ecourts.gov.in/hcservices/ provided under the said Act. According to respondents, the name ofthe product by itself suggests the presence of "Nicotine" which isdeclared to be injurious to health. Further, the Government ofTamilnadu by G.O.Ms.No.301 (Health) department dated 19.11.2001 hadprohibited sale of tobacco in any form. The first respondent hasfurther submitted that by exercising power under Sec.10(1)(c) ofthe Prevention of Food Adulteration Act 1954, the local Healthauthority, the third respondent herein, by order dated 14.09.2003granted approval for prohibition of sale and storage of the abovesaid products within the local area. In exercise of the powersconferred under Sec.10(4) of the Prevention of Food AdulterationAct 1954, the 4th respondent along with a team of Health Inspectorsseized the above products from various shops. On enquiry, it cameto the knowledge of the respondents that the petitioner was alsoone of the dealers for the said products and was carrying onbusiness from his residence. It is further submitted that oncoming to know about the seizure in various parts of the city, thepetitioner deliberately locked the front door of his businesspremises and fled away from the place and the servant-maidavailable in the premises had refused to say anything about thewhereabouts of the petitioner. The officers requested her to openthe front door for which she refused.5. The first respondent has further submitted that oneMr.Semalaiyappan, neighbour of the said premises and Mr.Shanmugam,Village Administrative Officer were present in the spot and thefact regarding refusal of the servantmaid to open the door wasrecorded in their presence. Thereafter, by exercising the powersunder Sec.10(5) of the Prevention of Food Adulteration Act 1954, anapplication was made before the Judicial Magistrate No.VI,Coimbatore and search warrant was obtained. With the help of thelocal police, the front door of the premises was opened. 17 boxesof Nulife Eucomint Chewettes and 80 pockets of Nulife GoodkhaChewettes were seized.6. The first respondent has further submitted that as per Rule11, Form-V was prepared and signatures of the two independentwitnesses viz., Thiru Semalaiyappan and R.Shanmugam, V.A.O. wereobtained and when it was served on the servant-maid, she refused toreceive the same. Therefore, Form 5 was served upon ThiruSemalaiyappan, the independent witness. Immediately, as per Sec.10(4) of the Act, samples were also taken from the seized goods. Outof 17 boxes, 6 boxes were taken in three parts. Out of which, onepart containing two boxes was sent to Food Analysis Laboratory,Salem on 15.09.2003. The remaining 2 parts were handed over to thesecond respondent/Local health authority. The respondent hasfurther submitted that the Public Analyst by his report dated10.10.2003, was of the opinion that the said samples contained"Nicotine", which is not permitted in any food as per Prevention of https://hcservices.ecourts.gov.in/hcservices/ Food Adulteration Rules 1955. Hence, the samples were foundadulterated and on receipt of the report, confirming that theseized articles were adulterated, as per Sec.11(4) of the Act, theseized articles were produced before the learned JudicialMagistrate No.VI, Coimbatore, on 17.10.2003 and as per hisdirections, they were kept in safe custody. Thereafter, as perSec.20 of the Act, proposal was sent to the Joint Director PublicHealth and preventive Medicine, Chennai seeking for his consent tolaunch prosecution. The respondent has denied the allegation thatthey have spread rumours. Therefore, the respondent has submittedthat the entire action to seize the products was done only inaccordance with the procedure set out in the Act. Since theproducts were marketed as vegetarian food, as prescribed under thePrevention of Food Adulteration Rule 1955, the respondents haveauthority to deal with the products.7. The respondent has further submitted that under the similarcircumstances, the manufacturer viz., M/s.Ceejay Health CarePrivate Ltd. had filed writ petition in W.P.No.30104 of 2003alleging similar facts and sought for similar reliefs. A detailedcounter affidavit was filed. At the time of hearing, thepetitioner therein restricted the relief to the limited extent of adirection to the Director of Public Health and Preventive Medicineto pass orders on their representation dated 3.10.2003. Asdirections have already been issued to consider the representationon set of facts, the present writ petition by a dealer on the samefacts is not maintainable. For all these reasons, the respondentshave prayed for dismissal of writ petition.8. Heard the learned counsel for the parties and perused thematerials available on record.9. Pleadings disclose that the product 'NU LIFE' GoodkhaChewetts and 'NU LIFE' Eucomint Chewetts were branded as foodarticles under the provisions of Prevention of Food AdulterationAct with specific symbol. As per Sec.10(1)(a) of the Prevention ofFood Adulteration Act 1954, the local authority viz., HealthOfficer, Coimbatore Municipal Corporation, Coimbatore had grantedapproval for prohibition of sale and storage of the above saidproducts. Admittedly, the prohibition order issued by the thirdrespondent has not been challenged by the writ petitioner or by themanufacturer viz., M/s.Ceejay Healthcare Private Ltd., Chennai.Pleadings further disclose that pursuant to the prohibitory orderdated 14.9.2003, the Health Inspector and other officials haveseized the products from various shops. On coming to know that thepetitioner was one of the dealers, of the above said products andsince he had left the business premises, the officers haverequested the servant-maid to open the front door of the businesspremises. Finding no other alternative, they have approached the https://hcservices.ecourts.gov.in/hcservices/ Learned Judicial Magistrate No.6, Coimbatore and obtained searchwarrant and with the help of the local police, they have broken thelock and seized the products prohibited to be sold, under theprovisions of Prevention of Food Adulteration Act. After takingsamples, the articles seized were also produced before the LearnedJudicial Magistrate No.6, Coimbatore and kept in safe custody.Though the petitioner has stated in his affidavit that he hadpreferred a criminal complaint before the Inspector of Police, B7Police station, Coimbatore, he has not chosen to prosecute thesame. If the action of the respondents in forcibly entering intothe premises and removing the articles, has affected his right totrade and contrary to law, he could have prosecuted his complaintwith the police or preferred a criminal complaintto the court ofcompetent jurisdiction and established the facts, placed in thiswrit petition, which he has not chosen to do so. The allegationthat the respondents have entered into the business premiseswithout jurisdiction has been disproved by the respondents and itis evident that only after getting a search warrant from theJudicial Magistrate No.6, Coimbatore, the respondents have enteredinto the business premises of the writ petitioner and seized thearticles which were prohibited.10. If the petitioner is interested in taking back his goods,it is open to him to prefer an application before the competentcriminal court, under the provisions of the Act. The petitionerhas not taken any steps in this regard.11. In these circumstances, the relief sought for by thepetitioner is totally misconceived. I do not find that therespondents have committed any gross illegality or acted withoutjurisdiction in entering into the business premises of thepetitioner. Even in the case of alleged damage, the petitioner hasto move the competent Civil Court and he cannot seek for anydirection from this court.12. In view of the above, I do not find any merit in the writpetition and accordingly, the writ petition is dismissed as devoidof merits. No costs. Consequently, connected miscellaneouspetitions are also dismissed.VaanSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Commissioner, Coimbatore Municipal Corporation, Coimbatore.2. The Deputy Commissioner of Police, Coimbatore Municipal Corporation, Coimbatore.3. The City Health Officer, Coimbatore Municipal Corporation, Coimbatore.4. The Health Inspector, Karunanidhi Nagar, Coimbatore.+ 1 cc to Mr. R. Sivakumar, Advocate SR No.512W.P.No.6808 of 2004 and W.P.M.P.Nos.8024 & 8025 of 2004VS(CO)SR/21.1.2009