Only A Food Inspector Can Investigate A Commission Of Offence Related To Food Items As Per The FSS Act: Gauhati High Court

The petitioner in this case was a company which has been granted license by the competent authority under the FSS Acr to manufacture pan-masala, which is classified as a food product under Food Safety and Standard Regulation. An FIR was registered against one Md. Imran Mohammed Hanif under Section 188/272/273/328 IPC, read with Section 26(2)(i)—(iv)(e) and Section 59 of the FSS Act, for possession of Rajanigandha pan-masala and Scented Tobacco and Baba Nabaratan pan-masala, etc. which are prohibited items of food, in view of the notification issued by the Commissioner of FSS and Drug Administration, Maharashtra.

In course of investigation, the stock of pan-masala, tobacco, recovered from the accused was seized and he was arrested. Various notices were served upon the petitioner Company at New Delhi, for production of certain documents under Section 91 of the CrPC and the petitioner immediately responded to the same. However, the investigating officer of the case, visited the factory of the petitioner and entered into the premises along with police officials without any document/search warrant from the Court of Law and forcibly seized the entire machinery and articles from the factory and also sealed the gate of the petitioner company's factory. The seized/finished pan-masala was worth more than one crore and was lying in the production hall, to be sent for packaging. Such pan-masala contains highly hygroscopic substance like katha, which attract moisture and exposure to such moisture has caused huge loss to the articles. Challenging the aforesaid search and seizure, a writ petition was preferred contending that the Maharashtra Police had no jurisdiction and power to seize as the petitioner had not contravened any law in Solapur, Maharashtra and had due license to produce pan-masala given by the appropriate authority. Further, the company was not named as accused in the FIR either.

The petitioner argued that such search and seizure had been made in utter disregard to the prescribed procedure under Section 102 CrPC and police authority has no power to seize such property in view of the provision of Section 30(2) of the FSS Act, which is a special Act. Further, it has been submitted that even if Rajanigandha pan-masala, if found in possession of someone in Solapur at Maharashtra, manufactured lawfully in the factory of the petitioner at Guwahati, could not be stopped and sealed by the investigating officer of Solapur Police Station, as such production was not made in Maharashtra.

Reliance was placed on the Supreme Court judgement of Nevada Properties (P) Ltd. vs. State of Maharashtra, (2019) 20 SCC 119, wherein it was held that the expression property appearing in Section 102 CrPC would not include moveable property and immovable property could not be seized. Here, the court stated that the language of Section 102 of the CrPC did not give police officers the power to dispossess a person in occupation and take possession of immovable property in order to seize it.

The petitioner also contended that seizure of factory was not required for investigation of an offence arising out of contravention of provision of the FSS Act, as the factory and the machinery at Guwahati were not concerned with distribution, sale or storage of pan-masala in Maharashtra. Thus, the petitioner submitted that it was entitled to compensation.

Per contra, the respondent relied upon an affidavit they had filed to submit that there had been no illegality while conducting search and seizure as there was nothing to reflect that the petitioner company was manufacturing its product strictly in accordance with the provisions of the Act and Regulations. It was further contended that the product manufactured by the petitioner company was found to be sold and stored in Maharashtra, which was prohibited under the notification issued under Section 30(2)(a) of the FSS Act.

The petitioner stated that a notification/order of prohibition issued at Maharashtra could not lead to any reasonable adverse inference against the lawful manufacturing of Rajanigandha pan-masala in Guwahati. The petitioner further contended that it cannot exercise any control over sales and purchase after it is sold to the purchaser.

The court found the licence issued to the petitioner company valid and stated that they were authorized to manufacture and sell pan-masala. Further, it also found that there was no standing prohibition for manufacturing of pan-masala in the State of Assam under the competent authority.

The court then opined upon the FIR lodged in the case. It stated that–

"The FIR has been registered on the basis of the prohibition issued by the Commissioner of Food and Safety, in Maharashtra. It transpires that such a notification that was issued under Section 30(2) by the Commissioner (FSS) for a period of one year and that being so, the validity of which has already been expired in July, 2020 but the FIR has been registered on 06.12.2021. Validity of such FIR itself is a questionable, whereas on the basis of such FIR the I/O has continued his investigation…The police officials who lodged the FIR, has not indicated the involvement of any other person in the business of said accused person (not even the present petitioner)."

The lack of any order of the court for the search and seizure caused the court to come to the conclusion that the respondent had acted without any authorization. Respondent also failed to bring on record as to how jurisdiction was assumed or how the FIR named accused has direct dealings with the present petitioner. Further, nothing was brought on record regarding the compliance of Section 102. At the same time, the court recognised that dealing of articles such as pan-masala were covered under the special law of FSS Act, which, due to being a special law, as per Section 4(2) of the CrPC, had an overriding effect on the provisions of the CrPC. The court quoted the judgement of Christy Fried Gram Industry v. State of Karnataka, 2016 Crl. LJ 482 to establish the same.

Section 41 of the FSS Act prescribes the Food and Safety Officer the power to search and seizure of food articles. Section 42 prescribes that the Food and Safety Officer is responsible for inspection of food business, drawing samples and sending the same to the food analyst for analysis and thereafter can launch the prosecution in appropriate case. The court stated that these provisions indicate that only the Food Inspector can carry out such investigation.

In view of the same, the court held that the I/O did not have the jurisdiction to investigate the matter. The court held that–

"The fundamental rights of the petitioner to carry out the lawful business has been hampered for such illegal conduct on the part of the investigating officer…Impugned seizure list prepared is hereby quashed and set aside with a direction to release all the seized article to the petitioner forthwith, if not released yet…Petition is allowed with cost of Rs.2 lakhs to be paid by the respondent no.2 to the petitioner company, with a liberty to the petitioner to prefer claim damages before the appropriate forum."

Case Title : DHARAMPAL SATYAPAL LTD. V THE STATE OF MAHARASHTRA AND 3 ORS.

Citation: 2022 LiveLaw (Gau) 42

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