Shop Cannot Be Closed Forever Merely For Keeping Banned Tobacco Products For Sale: Madras High Court

Justice GR Swaminathan highlighted that the Food Safety and Standard Rules 2011 provided for sealing shops only during the inability to adhere to procedures contemplated under Section 38 of the Food Safety and Standards Act 2006. The court thus noted that even if there was justification in initially sealing the premises, at some point it had to be de-sealed.

“Even if there is justification in initially sealing the premises, at some point of time or the other, they have to be de sealed. Merely for the reason that banned tobacco products were kept for sale, a shop cannot be closed forever. That is why, the Rules provide for sealing the premises only for one reason ie., inability to adhere to the procedure contemplated in Section 38(1)(c) of the Act or the proviso thereto,” the court observed.

The court added that the shop owners had a right to carry on business as guaranteed under the Constitution. Adding that the Constitution did not give a right to trade in banned items, the court opined that the shopkeepers could still sell other products in their shops and by sealing the shop, their right to livelihood was affected.

“The petitioners are small time shop keepers. Right to carry on business is guaranteed under Article 19(1)(g) of the Constitution of India. Of course, there is no right to trade in banned items. But the petitioners can sell other products in their shops. By sealing the shop, the petitioners' right to livelihood is affected. This will have a disproportionate impact on the petitioners' rights,” the court said.

The court was hearing pleas filed by two shopkeepers, whose shops were locked and sealed for keeping banned tobacco products for sale. They had approached the court seeking the removal of the seals.

The Additional Advocate General submitted that the Food Safety and Standards Act and the Rules empower the designated officer to lock and seal the premises where the contraband is kept. He added that the sale of gutka and other products had a serious bearing on public health and constituted a menace to society. Thus, he sought a summary dismissal of the plea.

The court after going through Section 38 of the Act which deals with the Powers of the Food Safety Officer noted that the Act did not empower the official concerned to seal the premises where the contraband was allegedly kept.

The court also noted that as per Rule 2.1.3.4 of the Food Safety and Standard Rules, the Food Safety Officer could seal the premises for investigation if he opines that it is not possible to comply with the provisions of the Act. The court however added that the Rules could never travel beyond the provisions of the Act. The court observed that the Rules have been framed only to carry out the provisions of the Act and thus sealing could be done only if the mode set out in the parent Act could not be fulfilled.

In the present case, the court noted that the sealing was unwarranted as there was nothing to show that the shopkeepers were unavailable or that the procedure of the Act could not be fulfilled. The court thus noted that the act of the authorities failed the test of proportionality.

Thus, noting that the continued sealing of the shops did not serve any purpose and would also not affect the investigation, the court allowed the petitions. The court also asked the shopkeepers to file affidavits undertaking not to trade in any banned items including banned tobacco products. The court also warned the shopkeepers that if the undertaking was to be breached, consequences would follow.

Counsel for the Petitioner: Mr.B.Jameel Arasu

Counsel for the Respondent: Mr.Veera Kathiravan, Additional Advocate General assisted by Mr.K.Balasubramani, Special Government Pleader

Citation: 2024 LiveLaw (Mad) 5

Case Title: Nagoorkani v The Commissioner and Others

Case No: WP(MD)Nos.30871 and 30873 of 2023

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