IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.01.2009 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.6808 of 2004 WPMP.No.8024 & 8025 of 2004 M.M.T.Hussain ... Petitioner Vs 1. 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. ... Respondents This writ petition has been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, forbearing the respondents from exceeding their jurisdiction i.e., conducting investigation raid, seizure without jurisdiction. For Petitioner : Mr.C.Deivasigamani For Respondents : Mr.R.Sivakumar ***** O R D E R The petitioner has sought for a Mandamus, forbearing the respondents from exceeding their jurisdiction i.e., conducting investigation, 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 dealers of pharmaceutical product called 'NU LIFE' supplied by M/s.Ceejay health Care Pvt. Ltd. 15-A, Willington Estate II Floor, 53, Commander-in-chief Road, Egmore, Chennai 8. According to him, the product is a pharmaceutical product containing "Nicotine Polaerilex USP 26" and approved by the Government of India, the Ministry of Health and Family Welfare (Department of Health) by Gazette notification No.F10/45(H)(1) dated 21.12.1945 and last amended vide O.S.R.528(E) dated 8.7.2003. The product is under the Drugs and Cosmetics Act, 1940 and not under the Food and Adulteration Act, 1954. Though the manufacturer had already informed the Drug Controller, Tamilnadu in respect of the product 'NU LIFE' launched in the market, the respondents 2 and 3 along with their officials came to his residence, when the inmates had gone out, and broken the locks of the doors and forcibly entered into his house. The writ petitioner has further contended that almirahs and cup boards were 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 a criminal complaint against the respondents 2 to 4 before the police and no action has been taken in this regard. The manufacturer has also met the respondents on 30.9.2003 and clarified that the product sold was duly approved by the Ministry of Health, Government of India. The petitioner has further submitted that it is the exclusive domain and jurisdiction of the Drugs department and the respondents have no jurisdiction to enter into the premises of the petitioner. It is further submitted that the respondents have indulged in unleashing false propaganda against the petitioner in print and cellular media, stating that the product sold in the market was banned and it has affected his business. In these circumstances, the writ petitioner has sought for direction to the respondents to pay compensation of Rs.10 lakhs for the illegal raid and seizure of the product. 4. The first respondent in his counter affidavit has submitted that NU LIFE Goodkha Chewetts and NU LIFE Eucomint Chewetts were on sale all over city in Coimbatore and these two products were made available in medical and petty shops. These products were branded as food articles, as prescribed under the provisions of the Prevention of Food Adulteration Act 1954. As per the Rule 42(ZZZ) (17) of the Prevention of Food Adulteration Rules 1955, a symbol was printed on every pack so as to indicate that these products are vegetarian food. Therefore, it is submitted that the respondents have every jurisdiction and authority to take samples and send the products 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 of the product by itself suggests the presence of "Nicotine" which is declared to be injurious to health. Further, the Government of Tamilnadu by G.O.Ms.No.301 (Health) department dated 19.11.2001 had prohibited sale of tobacco in any form. The first respondent has further submitted that by exercising power under Sec.10(1)(c) of the Prevention of Food Adulteration Act 1954, the local Health authority, the third respondent herein, by order dated 14.09.2003 granted approval for prohibition of sale and storage of the above said products within the local area. In exercise of the powers conferred under Sec.10(4) of the Prevention of Food Adulteration Act 1954, the 4th respondent along with a team of Health Inspectors seized the above products from various shops. On enquiry, it came to the knowledge of the respondents that the petitioner was also one of the dealers for the said products and was carrying on business from his residence. It is further submitted that on coming to know about the seizure in various parts of the city, the petitioner deliberately locked the front door of his business premises and fled away from the place and the servant-maid available in the premises had refused to say anything about the whereabouts of the petitioner. The officers requested her to open the front door for which she refused. 5. The first respondent has further submitted that one Mr.Semalaiyappan, neighbour of the said premises and Mr.Shanmugam, Village Administrative Officer were present in the spot and the fact regarding refusal of the servantmaid to open the door was recorded in their presence. Thereafter, by exercising the powers under Sec.10(5) of the Prevention of Food Adulteration Act 1954, an application was made before the Judicial Magistrate No.VI, Coimbatore and search warrant was obtained. With the help of the local police, the front door of the premises was opened. 17 boxes of Nulife Eucomint Chewettes and 80 pockets of Nulife Goodkha Chewettes were seized. 6. The first respondent has further submitted that as per Rule 11, Form-V was prepared and signatures of the two independent witnesses viz., Thiru Semalaiyappan and R.Shanmugam, V.A.O. were obtained and when it was served on the servant-maid, she refused to receive the same. Therefore, Form 5 was served upon Thiru Semalaiyappan, the independent witness. Immediately, as per Sec.10 (4) of the Act, samples were also taken from the seized goods. Out of 17 boxes, 6 boxes were taken in three parts. Out of which, one part containing two boxes was sent to Food Analysis Laboratory, Salem on 15.09.2003. The remaining 2 parts were handed over to the second respondent/Local health authority. The respondent has further submitted that the Public Analyst by his report dated 10.10.2003, 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 found adulterated and on receipt of the report, confirming that the seized articles were adulterated, as per Sec.11(4) of the Act, the seized articles were produced before the learned Judicial Magistrate No.VI, Coimbatore, on 17.10.2003 and as per his directions, they were kept in safe custody. Thereafter, as per Sec.20 of the Act, proposal was sent to the Joint Director Public Health and preventive Medicine, Chennai seeking for his consent to launch prosecution. The respondent has denied the allegation that they have spread rumours. Therefore, the respondent has submitted that the entire action to seize the products was done only in accordance with the procedure set out in the Act. Since the products were marketed as vegetarian food, as prescribed under the Prevention of Food Adulteration Rule 1955, the respondents have authority to deal with the products. 7. The respondent has further submitted that under the similar circumstances, the manufacturer viz., M/s.Ceejay Health Care Private Ltd. had filed writ petition in W.P.No.30104 of 2003 alleging similar facts and sought for similar reliefs. A detailed counter affidavit was filed. At the time of hearing, the petitioner therein restricted the relief to the limited extent of a direction to the Director of Public Health and Preventive Medicine to pass orders on their representation dated 3.10.2003. As directions have already been issued to consider the representation on set of facts, the present writ petition by a dealer on the same facts is not maintainable. For all these reasons, the respondents have prayed for dismissal of writ petition. 8. Heard the learned counsel for the parties and perused the materials available on record. 9. Pleadings disclose that the product 'NU LIFE' Goodkha Chewetts and 'NU LIFE' Eucomint Chewetts were branded as food articles under the provisions of Prevention of Food Adulteration Act with specific symbol. As per Sec.10(1)(a) of the Prevention of Food Adulteration Act 1954, the local authority viz., Health Officer, Coimbatore Municipal Corporation, Coimbatore had granted approval for prohibition of sale and storage of the above said products. Admittedly, the prohibition order issued by the third respondent has not been challenged by the writ petitioner or by the manufacturer viz., M/s.Ceejay Healthcare Private Ltd., Chennai. Pleadings further disclose that pursuant to the prohibitory order dated 14.9.2003, the Health Inspector and other officials have seized the products from various shops. On coming to know that the petitioner was one of the dealers, of the above said products and since he had left the business premises, the officers have requested the servant-maid to open the front door of the business premises. Finding no other alternative, they have approached the https://hcservices.ecourts.gov.in/hcservices/ Learned Judicial Magistrate No.6, Coimbatore and obtained search warrant and with the help of the local police, they have broken the lock and seized the products prohibited to be sold, under the provisions of Prevention of Food Adulteration Act. After taking samples, the articles seized were also produced before the Learned Judicial Magistrate No.6, Coimbatore and kept in safe custody. Though the petitioner has stated in his affidavit that he had preferred a criminal complaint before the Inspector of Police, B7 Police station, Coimbatore, he has not chosen to prosecute the same. If the action of the respondents in forcibly entering into the premises and removing the articles, has affected his right to trade and contrary to law, he could have prosecuted his complaint with the police or preferred a criminal complaintto the court of competent jurisdiction and established the facts, placed in this writ petition, which he has not chosen to do so. The allegation that the respondents have entered into the business premises without jurisdiction has been disproved by the respondents and it is evident that only after getting a search warrant from the Judicial Magistrate No.6, Coimbatore, the respondents have entered into the business premises of the writ petitioner and seized the articles 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 competent criminal court, under the provisions of the Act. The petitioner has not taken any steps in this regard. 11. In these circumstances, the relief sought for by the petitioner is totally misconceived. I do not find that the respondents have committed any gross illegality or acted without jurisdiction in entering into the business premises of the petitioner. Even in the case of alleged damage, the petitioner has to move the competent Civil Court and he cannot seek for any direction from this court. 12. In view of the above, I do not find any merit in the writ petition and accordingly, the writ petition is dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petitions are also dismissed. Vaan Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. 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.512 W.P.No.6808 of 2004 and W.P.M.P.Nos.8024 & 8025 of 2004 VS(CO) SR/21.1.2009 https://hcservices.ecourts.gov.in/hcservices/