IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.09.2008 CORAM: THE HON'BLE MR. JSUTICE P.JYOTHIMANI WRIT PETITION NO.18234 of 2008 and connected miscellaneous petitions. M/s.Hatsun Agro Product Ltd., rep. By its Authorised Signatory No.5A, Vijayaraghava Road T.Nagar, Chennai 600 017. .. Petitioner vs. 1.The State of Tamil Nadu rep. By Secretary to Government Animal Husbandry & Dairy Development St.George Fort, Chennai 600 009. 2.The Director of Health & Preventive Medicine, Department of Public Health & Preventive Medicine, D.M.S. Compound, Teynampet, Chennai 18. 3.The Deputy Director of Health Services Department of Public Health & Preventive Medicine Cheyyar, Tiruvannamalai District 604 407. 4.The Food Inspector Department of Public Health & Preventive Medicine Cheyyar, Tiruvannamalai District. . Respondents For petitioner : Mr.R.Krishnamoorthy,Sr.Counsel for Mr.V.Ayyadurai For respondents: Mr.A.Edwin Prabhakar,AGP .. https://hcservices.ecourts.gov.in/hcservices/ Prayer: This petition filed under Art.226 of the constitution of India to issue a writ of Certiorarified Mandamus calling for the records comprised in the impugned search and seizure memo drawn by the Food Inspector/R4 dated 22.7.2008 and taking sample from the petitioner's premises bearing door No.114, Tindivanam Road, Nadukuppam Village, Vandavasi Taluk,Tiruvannamalai District and to quash the same and consequently forbear the respondents from taking any action in respect of the manufacturing process of skimmed milk powder of cattle feed grade in purported exercise of power under the provisions of the Prevention of Food Adulteration Act and the Rules made thereunder. ORDER The proceedings under challenge in this writ petition has been issued by the Public Health Officer, Cheyyar, who, on direction from the Director of Health and Preventive Medicine, Chennai, after inspection made on 22.07.2008 in the chilling as well as manufacturing unit relating to milk allied products belonging to the petitioner along with the Deputy Director of Health, Department of Public Health and Preventive Medicine, Cheyyar, the third respondent and the Food Inspector, the fourth respondent, having found that in the manufacture of milk powder, edible lactose (expired) along with Hatsun skimmed milk powder was mixed and repacked in the form of a new milk powder has taken the following samples, viz., "1. MAISTINsP16 No.Cukrus Edible Lactose – 25 Kg Date of Production: 22 Feb 2006 Production No:21 - 1 Bag 2. Hatsun Skimmed Milk Powder Net Wt – 25 kg. Batch No.P2-176 D.M.7.7.08 Best Before 18 months from the date of manufacture - 1 Bag 3. Hatsun Skimmed Milk Powder Net Wt – 25 Kg, Batch No.VAN002 Production date – 12.07.2008 Date of expiry – No entry Hatsun Agro Products Ltd., 5A, Vijayaragahava Road, T.Nagar, Chennai 600 017. - 1 Bag https://hcservices.ecourts.gov.in/hcservices/ 4. ADM Cococa BU, Lot Type D-K-4,85,456, Net – 25 kg DM 29.3.2007, 29.03.2007.- 1 Bag 5. UN-Know Articles – 25 kg - 1 Bag" and obtained an undertaking from the persons in charge of the petitioner's Unit that till inspection report is received, they will not use the expired items in manufacturing the milk powder and till the third respondent passes any further order, the above said items will not be used. In effect, according to the petitioner, it is a search and seizure memo drawn by the 4th respondent and the said action has been taken by the respondents under the provisions of the Tamil Nadu Public Health Act read with the Prevention of Food Adulteration Act,1954. 2. The impugned proceeding is relating to the search and seizure made in the premises of the petitioner at No.114, Tindivanam Road, Nadukuppam Village, Vandavasi Taluk, Tiruvannamalai District. The present writ petition is filed to quash the said impugned proceedings and also to forbear the respondents from taking any action in respect of the manufacturing process of skimmed milk powder of cattle feed grade in the guise of exercising their powers under the provisions of the Prevention of Food Adulteration Act,1954. 3. The case of the petitioner as submitted by Mr.R.Krishnamoorthy, learned senior counsel for the petitioner is that the petitioner is a Company registered under the Indian Companies Act,1956, engaged in procuring, processing and marketing milk and milk products and the petitioner having six dairies, is the largest private one in the State. 3(a). For establishing six dairies, the Government of India has issued registration certificate to the petitioner Company in terms of Milk and Milk Products Order, 1992. The excess quantity of unsold procured milk has been used by the petitioner in converting into milk powder and in manufacturing of other items like, ice cream, ghee, butter oil, paneer, exporting skimmed milk powder for cattle feed and the petitioner is exporting its various products to more than 25 countries. 3(b). The petitioner Company is having two blending processing units at Kancheepuram and Salem dairies apart from one chilling centre at Nadukuppam village at Vandavasi Taluk, having obtained necessary licence and permission from various authorities. In fact, the third respondent, by his proceedings dated 10.11.2005, has granted permission for construction and installation of certain machinaries at Nadukuppam for the use of the petitioner and the https://hcservices.ecourts.gov.in/hcservices/ petitioner has also obtained necessary clearance from the Tamil Nadu Pollution Control Board under Air (Prevention and Control) Act,1994, duly renewed. 3(c). It is also the case of the petitioner that the chilling centre at Nadukuppam Village is used for blending process for its excisable goods to be exported as "Cattle Feed Grade" as per the provisions of Central Excise Act and Rules and registration number has also been assigned by the authorities under the said Act. Therefore, according to the petitioner, what is stored in the blending unit and chilling centre at Nadukuppam is to produce exported item of goods, viz., Cattle Feed Grade, skimmed milk powder, which is not meant for human consumption and the petitioner has been in fact exporting cattle feed grade, skimmed milk powder to Philippines and other countries from 2006, therefore, it does not attract the provisions of the Prevention of Food Adulteration Act,1954. 3(d). It is also the case of the petitioner that the petitioner is carrying on packaging process of skimmed milk powder in the dairy at Kanchipuram and therefore, according to the petitioner, it is only the Kancheepuram Unit, where the packaging is done for human consumption which is liable for inspection under the provisions of the Prevention of Food Adulteration Act,1954. Even the skimmed milk powder meant for human consumption is manufactured as per the requirement of the foreign customers apart from the skimmed milk powder manufactured for the purpose of export for cattle feed. 3(e). It is the case of the petitioner that they have imported ingredient in the form of lactose, which is a form of sugar and the shelf life period of lactose is a period of two years for manufacturing the skimmed milk powder for human consumption and for manufacturing of cattle feed grade, etc., the period is five years. Therefore, the use of the skimmed milk powder for the purpose of manufacturing the cattle feed grade to be exported to foreign countries is not injurious. 3(f). According to the petitioner, the Prevention of Food Adulteration Act,1954 applies only in respect of the food which is to be used for human consumption and as per the said Act, the Food Inspector, has duty bound to take samples and initiate appropriate action if it is found that there is adulteration in the manufacturing of food products. It is the case of the petitioner that even under the Prevention of Food Adulteration Act,1954, the Food Inspector has no jurisdiction to take samples of cattle feed grade of skimmed milk powder, which is not a food article. 3(g). It is the case of the petitioner that based on the https://hcservices.ecourts.gov.in/hcservices/ purchase order dated 30.06.2008 received from Philippines for supply of skimmed milk powder for cattle feed grade, necessary blending process was carried on in the chilling centre at Nadukuppam by using the lactose with shelf life period of two years, in February,2008, though, the required export quality being the cattle feed grade, the period is five years. A team of officials headed by the Food Inspector inspected the chilling centre of the petitioner on 22.07.2008 at Nadukuppam and took samples of skimmed milk powder and lactose which were used in the process of manufacturing cattle feed grade skimmed milk powder at the relevant point of time, without following the provisions of the Prevention of Food Adulteration Act,1954 as well as the Rules, especially Rule 12 of the Prevention of Food Adulteration Rules,1955. 3(h). The team of the inspecting officials have also refused to look into the relevant documents including the documents issued by the Central Excise authorities, etc., and therefore, according to the petitioner the search and seizure made on 22.07.2008 by the respondents is highhanded and without jurisdiction. It is also stated that immediately on the next day, i.e., on 23.07.2008, the third and fourth respondents came to the chilling centre at Nadukuppam and sealed the entire blending process unit without any reason. 4. The legal grounds on which the conduct of the respondents is challenged are that the Food Inspector has no jurisdiction or power to seal the premises without taking samples with valid prohibitory order; that under the Prevention of Food Adulteration Act,1954 and the Rules made thereunder, the authority is entitled only to break open the premises where misbranded foods are kept for sale under Section 10(v) read with Rule 10(4) of the Rules and therefore, the seizure and search memo dated 22.07.2008 is not valid; that no notice of intention to enter upon the premises as mandated in Rule 12 has been given and there is violation of sub- section (3) of Section 10 of the Prevention of Food Adulteration Act; that the shelf life period of lactose for manufacturing skimmed milk products for human consumption is two years and in respect of cattle feed grade, etc. it is five years, and in the instant case the life time expired in February,2008 at the time of inspection on 22.07.2008 and the said lactose was used for the purpose of manufacturing skimmed milk products, cattle feed grade to be exported to Philippines; that the petitioner has obtained necessary permission from the Central Excise authority and local authority under the Milk and Milk Product Order etc., and hence, the impugned proceedings is vitiated. 5. In the course of hearing it is made clear by the learned Additional Government Pleader appearing for the respondents that https://hcservices.ecourts.gov.in/hcservices/ the chilling unit belonging to the petitioner at Nadukuppam was not sealed and it was the blending unit wherein the manufacturing process was done with lactose which has expired, in respect of which alone seizure and closure order has been effected and there is no much dispute about the chilling unit of the petitioner at Nedukuppam. 6. A reference to the impugned proceedings issued by the 4th respondent based on the inspection conducted on 22.07.2008 shows that the products have been taken in the presence of the Deputy Director of Health Services, Cheyyar, third respondent herein. According to the learned senior counsel appearing for the petitioner Mr.R.Krishnamoorthy, neither the Prevention of Food Adulteration Act,1954 nor the Public Health Act is applicable on the facts of the present case and the petitioner is governed by the Milk and Milk Products Order,1992 issued by the Government of India with effect from 09.06.1992 as per Section 3 of the Essential Commodities Act. 6(a). It is the said Statutory Order which defines Milk and Milk Products and the provision for registering the manufacturing Units and inasmuch as separate registration certificate has been issued to the petitioner as per the Order, which is a self- contained Code, it is the registering authority, who has got power to enter, inspect and seize under Para 15 as per the procedure contemplated therein and the said registering authority is defined under Para 2(l) of the Order as an authority appointed or designated by the Central Government and therefore, the learned senior counsel would submit that the entire act of the respondents in the present case is not sustainable in law, and the same has to be set aside for want of jurisdiction. 6(b). The learned senior counsel would also rely upon Para 32 of the Order, which supersedes any other order passed under Section 3 of the Essential Commodities Act,1955 in so far as it relates to milk or milk products and therefore, even an order passed under the Essential Commodities Act cannot take away the power of the authorities under the Milk and Milk Products Order,1992 and therefore, the said Order having become a self- contained Code, governs the entire field since the registration certificate has been issued by the authorities contemplated under the Order after following the due procedure. 6(c). His further submission is that in the Unit at Nadukuppam, no trading activities are conducted by the petitioner and it is carrying on chilling process as per the registration certificate issued by the Government of India dated 14.05.2003. He would also submit that inasmuch as the said Order is passed under the Essential Commodities Act, by virtue of Section 6 of the https://hcservices.ecourts.gov.in/hcservices/ Essential Commodities Act, the Order being the self-contained Code, it will have overriding effect. 6(d). It is also his submission that the provisions of Tamil Nadu Public Health Act,1939 cannot be enforced in respect of Milk and Dairy Products and even otherwise, the authorities under the said Act, viz., the Health Inspector/Public Health Officer can only impose a fine and there is no power for seizure and closure. Therefore, when on record it is clear that the skimmed milk powder was retained in the Unit only for the purpose of manufacturing cattle feed grade to be exported to Philippines, the question of applicability of Tamil Nadu Public Health Act,1939 or the Prevention of Food Adulteration Act,1954 does not arise, and accordingly, the entire procedure is vitiated. 7. Mr.V.Ayyadurai, learned counsel appearing for the petitioner in addition to the submission made by the learned senior counsel would also submit that inasmuch as the field in respect of the manufacture of milk and dairy products is covered by the Milk and Milk Products Order,1992, framed as per Section 3 of the Essential Commodities Act, is occupied by the Central Government to be operated by the registering authority contemplated under the Act, who is empowered even for seizure etc., and on the factual situation, when the petitioner was manufacturing cattle feed grade not for sale in India, the activity of the respondents in the petitioner's unit at Nadukuppam is illegal. 7(a). He would also submit that the dairy manufacturing Units for human consumption situated in other places like, Kancheepuram have not been inspected by the authorities,and therefore, according to him, the food not only to be used for human consumption, but also intended for such sale, can only be inspected by the authorities under any other Act. 7(b). He further submits that after coming into force of the Prevention of Food Adulteration Act,1954, the provisions of the Tamil Nadu Public Health Act,1939 in so far as it relates to adulteration stand repealed. He would also submit that as per the records, the impugned actions are not taken by the respondents under the Prevention of Food Adulteration Act,1954. He would also refer to the proceedings of the first respondent dated 04.09.2008, by which the first respondent has appointed one Mr.K.Srinivasan, Health Inspector (Food Inspector), Primary Health Centre, Thatchur, deputing him to inspect in connection with the prevention of food adulteration work and for seizure of milk products at Hatsun Agro Products Ltd., at Nadukuppam village, Cheyyar with immediate effect. 7(c). While the impugned order does not contain any signature https://hcservices.ecourts.gov.in/hcservices/ of the authority under the Prevention of Food Adulteration Act,1954, the impugned order has been signed only by the Primary Health Officer under the Tamil Nadu Public Health Act,1939, who has no jurisdiction to issue such order even if it is under the Prevention of Food Adulteration Act,1954 and therefore, according to him, either under the Prevention of Food Adulteration Act,1954 or under the Tamil Nadu Public Health Act,1939 there is no power to seal the premises. 7(d). It is also his contention that the respondents have not even given any reason for sealing, and therefore, it cannot be held to be a reasonable restriction under Article 19(1)(g) of the Constitution of India. It is further stated that when the petitioner has specifically averred in the affidavit filed in support of the writ petition that the milk products are not meant for local use and for export for cattle feed and the same has not been denied by the respondents in their counter affidavit, it should be taken as an admitted fact. He would also rely upon the judgement of the Supreme Court in the following cases: (a) National Institute of Technology vs. Niraj Kumar Singh (2007 (2) SCC 481); (b) Karnataka State Financial Corporation vs. N.Narasimahaiah (2008 (5) SCC 176); and (c) Deewan Singh and others vs. Rajendra PD.Ardevi and others (2007 (10) SCC 528), to substantiate his contention that the statutory authorities must act within the jurisdiction. 8. On the other hand, the respondents, especially respondents 3 and 4 have filed a counter affidavit dated 05.08.2008, wherein it is stated that the second respondent Director of Health and Preventive Medicine has issued an order dated 03.07.2008, by which he has stated that the milk is a vital food product and rampant adulteration is reported and the adulteration has to be checked since it is a vital food for children and sick people and directed a Milk Raid to be conducted and it was based on the said direction milk raid was conducted on 22.07.2008. It is the case of the said respondents that in the said raid it was found that there has been violation of Tamil Nadu Public Health Act, particularly Sections 107, 112, and 112(a); violation of Prevention of Food Adulteration Act,1954 and Panchayat Act,1994 in the conduct of the petitioner in the manufacture of skimmed milk powder and also in blending expired milk powder with fresh skimmed milk powder and packing the same in new 25 Kgs. packs to be sold in the market and for export. 8(a). It is also stated that the licence for the said blending process was not obtained and there was no evidence to show that the petitioner was manufacturing cattle feed grade milk powder. On the other hand, it is found that the ingredients stored are edible for https://hcservices.ecourts.gov.in/hcservices/ human consumption and it was in those circumstances, the team took samples of 5 types of milk powder and sent the same for analysis to the food testing centre – King Institute, Guindy, Chennai and seized 61 packs of 25 Kgs. each of expired milk powder and sealed the same in the said premises. 8(b). It is also stated that the petitioner has no valid licence issued under Section 107 of the Tamil Nadu Public Health Act,1939 or under the Panchayat Act. It is further stated that under the Tamil Nadu Public Health Act,1939 and Prevention of Food Adulteration Act,1954, the Health Authorities are entitled to check the premises. It is also stated that subsequent to the seizure on 22.07.2008, the third respondent was informed by the Joint Director (Prevention of Food Adulteration) that the sealed items were being removed from the site, and the respondents sealed the manufacturing unit and the sealing was within the powers. 8(c). It is further stated in the counter affidavit dated 01.09.2008 that the chilling unit has never been sealed by the respondents and a false representation has been made as if the chilling unit was sealed in order to obtain an interim order. It was only the godown along with unauthorised blending unit which was sealed due to the reason that the imported expired lactose were being used in the production of skimmed milk powder, which was manufactured at Chennai unit and re-packed at Chennai without valid licence from local Panchayat and it was sealed only to prevent tampering or destroying the evidence awaiting the results from the King Institute, Guindy, Chennai. 8(d). It is also stated that the third respondent is empowered to act under the Tamil Nadu Public Health Act,1939 as per Sections 108(1)(b) and 112-A(1), to take action under Section 108(b) if any person sells, exposes or hawks about for sale or keeps, stores, manufactures or prepares for sale any food or drug intended for human consumption which is unfit for such purpose. It is also stated that under Section 112-A(1), the Health Officer is empowered to seize and take away or secure such article or utensil, if the food article appears to the Health Officer or to a person duly authorised by him to be unfit for human consumption and as per 112- A(2), no person has any right over such article seized as per Section 112-A(1). Therefore, according to the said respondents, the sealing was done in the public interest and to prevent the petitioner from tampering with the evidence and it is also again reiterated that the milk chilling centre of the petitioner in Nadukuppam village has never been obstructed. 9. It is the contention of the learned Additional Government Pleader Mr.A.Edwin Prabakar that under the Tamil Nadu Public Health Act,1939 inasmuch as the term "Food" should include milk also, https://hcservices.ecourts.gov.in/hcservices/ which is consumable by human being, the Health Officers appointed under the said Act are entitled to inspect and make seizure. It is also his case that even in respect of conducting of dairies, the registration stated to have been obtained from the Central Government under the Milk and Milk Products Order,1992 is only in respect of six dairies, which does not include Nadukuppam unit and therefore, the petitioner cannot take advantage of such licence issued in respect of some other premises to protect the unlawful activities which are found by the authorities under the Tamil Nadu Public Health Act,1939 in the unit at Nadukuppam. 9(a). He would fairly concede that after Prevention of Food Adulteration Act,1954, came into existence, the Tamil Nadu Public Health Act,1939 to the extent it relates to adulteration is not applicable, but he would submit that under the Prevention of Food Adulteration Act,1954 the authorities are entitled to inspect. It is also his submission that in the certificate produced by the petitioner, nowhere it is mentioned as to whether the manufacturing of the products is for export or cattle feed or for human consumption. He would also submit that the King Institute in its report has clearly held that the conduct of the petitioner is adulteration, since the petitioner has used the expired lactose. He would also rely upon the judgement of the Supreme court in Municipal Corporation of Delhi vs. Shiv Shanker (AIR 1971 SC 815) to substantiate his contention that the respondents have authority to inspect and make search and seizure. 9(b). That apart, even in respect of milk and milk products, he would rely upon the judgements of the Supreme Court in Birbal vs. State of Haryana (2002 (1) JT 289) and Laskari Ram vs. State of Himachal Pradesh (2000 (9) SCC 256) apart from Mahendrakumar G.Patel vs. State of Gujarat (AIR 2003 SC 4058) to substantiate his contention that even in respect of milk products the Prevention of Food Adulteration Act,1954 is applicable and as such the applicability of such Act is upheld by the Supreme Court. He would also submit that when admittedly the chilling unit has not been closed by the respondents, the petitioner has come forward with the false case as if the chilling unit was closed only to obtain interim order. It is also his case that the King Institute, has in fact submitted its report dated 26.08.2008 and as and when the report is communicated to the petitioner, it is always open to the petitioner to take appropriate action especially in the circumstances that the analytical report says that the samples are adulterated ones as per the Prevention of Food Adulteration Act,1954. 10. I have heard the learned senior counsel and other counsel appearing for the petitioner and the learned Additional