1. These two original petitions have been filed by Pepsico India Holding Ltd., a company under the Company's Act having its branch at No.6, Mamandur Village, Maduranthakam Taluk, rep. by its Authorised Signatory, Mr. Vikas Saxena, to call for the records in R.C.26278/99/85 in the file of the District Officer Additional District Magistrate, Kanchipuram and to quash the same.
2. Short facts are :- On 19.4.99, the Secretary, Kanchipuram Consumer Welfare Protection Association sent a complaint to the first respondent District Revenue, Officer Kanchipuram, that on 9.4.1999, one of its Members C.V. Chandrasekaran, when purchased a cool drink by name Lehar 7UP from the shop Kamakshi Xerox inside the Taluk Office Premises and when he saw the bottle before pending it, it was dusty and full of dirt. Thereafter he purchased the cool drink along with the bottle and made a complaint to the Consumer Welfare Protection Association and that even for the naked eye, the cool drink gave a horrible look as it was full of dirt. It was further stated therein that if the said cool drink is consumed, it will be injurious for human health and they are unable to assess the number of bottles released for sale contained such dirt and if the inhabitants of the Kanchipuram Town consumed the same, there will be a health hazard. It is also requested in that complaint that immediate steps may be taken to stop the sale of Pepsico Cool Drinks in Kanchipuram Town. A reminder was sent on 17.4.99 to the first respondent to expedite action in the matter. On 20.4.99, the first respondent District Revenue Officer by his proceedings Rc.26278/99/M(1) passed an order under Section 133(1) (b)(ii) of the Criminal Procedure Code directed the dealer of Pepsi Cool Drinks namely, Sargunam of Susee Corporation, Kanchipuram to offer his explanation within seven days from the date of receipt of notice as to why the sale of 7UP items of soft drink should not be prohibited in Kanchipuram town, by closing the godown maintained at No.1-A, Susee Corporation, Vallal Pachaippan St. Kanchipuram and also directed him to appear before him on 26.4.1999 by 10.AM to present his case for passing final orders. On 20.4.99 the first respondent passed an order of interim injunction under section 142(1) of the Criminal Procedure Code and ordered closure of the godown of Susee Corporation pending enquiry on 26.4.1999. On 4.10.99, the first respondent issued notice directing the parties to appear before him on 12.10.99 at 5 P.M. with the documents in support of their case. Such a notice was issued to the plant Manager, Pepsi Corporation, Mamandur Village. On 12.10.99, the counsel for the petitioner wrote a letter to the first respondent requesting copies of certain documents. By an order dated 24.11.99 in RC.26278/99 S-5, the first respondent District Revenue Officer passed an order, apparently, under Section 142(1), Cr.P.C, directing the immediate closure of production unit at Mamandur of Pepsico unit until satisfactory analysis reports are obtained from Food Analysis Laboratory, King Institute Campus, Chennai-2, Central Food Laboratory, Mysore-3, Central Food Laboratory, Gaziabad UP, until a decision is taken in the enquiry to be conducted on 30.11.99 by 10.am. by the first respondent under section 133(1) (B)(2) Cr.P.C.
3. It is contended on behalf of the petitioner that the order passed on 20.4.99 is wholly incompetent and has been passed without evidence and without conducting any enquiry and was passed on wholly extraneous and irrelevant consideration, of conjectures and surmises. It is also stated that the said order has been made on alleged apprehensions without any basis that the consumption of soft drink is likely to cause imminent and serious health hazard and injury to the members of the public. It is also submitted that the first respondent has directed closure of the production unit of the petitioner, at Mamandur in respect of the soft drink beverage being manufactured and supplied by the petitioner under the brand names, Pepsi, Miranda, Lehar 7UP etc. and they are being supplied in various Districts in the State of Tamil Nadu as well as adjoining states, on an alleged complaint of discovery of foreign particles in a spurious bottle of 7 UP which did not even pertain to the petitioner and therefore, the same is arbitrary and illegal and made without any basis. The impugned order has been passed without drawing up a preliminary order which is sine qua non for initiating proceedings under section 133 Cr.P.C., as held by Supreme Court in C.A. Avarachan v. C.V. Srinivasan and another, 1996 (7) SCC 71 and therefore, it is liable to be quashed.
4. It is argued that on 12.10.99 when the petitioner appeared before the first respondent and informed him that the petitioner was not aware of the nature of the proceedings, the petitioner was told that an enquiry is being conducted against one M/s. Susee Corporation Kanchipuram, Distributor of Soft Drink Beverage in the District of Kanchipuram and that the presence of the petitioner was required for the proceedings. Then the petitioner requested for copies of complaint, documents and statements. It is submitted that a perusal of the complaint and documents made available by the first respondent to the petitioner revealed that the first respondent purported to initiate enquiry on a complaint preferred by the second respondent that one bottle of 7up was alleged to contain foreign particles and it was injurious to public health. The impugned order to stop the production and sale of the product of the petitioner has been made on a total non-application of mind and is wholly without jurisdiction besides being contrary to the mandate of section 133 and 142 Cr.P.C.
5. According to the learned counsel for the petitioner,no notice was issued to the petitioner at the first instance. On 20.4.1999, the first respondent visited Shimla Cool Drinks in Kanchipuram town and seized a 7 UP bottle. He was aware that a Soda Maker was there in the shop. Thereafter, he went to the distributor namely the Susee Corporation namely, the premises of the third respondent and seized another 7 UP bottle from a crate mentioned damaged goods. Thereafter he sealed the godown and issued notice under Section 142, Cr.P.C. ordered closure of the shop. On 26.4.99, the third respondent filed petitions under section 482, Cr.P.C. in Criminal O.P.Nos.7189 and 7190 of 1999 and the High Court granted stay of other proceedings and also gave permission to break open the seal in Crl.M.P.Nos.3521, 3522 of 1999. Only on 4.10.99, summons to 9 persons, including the petitioner were issued to appear for hearing. On 12.10.99, the petitioner appeared before the first respondent and requested for documents and three weeks time to file his statement. However, no date was given. On 13.10.99, the petitioner wrote a letter through his counsel confirming what was said on 12.10.99. On 30.10.99, documents were given to the petitioner at Mamandur in the evening and he was called for an enquiry on 2.11.99. On 1.11.99, telegrams was sent by the petitioner's counsel seeking time. On 2.11.99, the petitioner appeared and submitted a letter and requested for time to file his statement, but no further date was given. On 5.11.99, notice of enquiry was given and the petitioner was asked to produce details at 5P.M. and on 8.11.99, the petitioner appeared for the enquiry and sought time to given reply and requested for a specific date of hearing , but no date was given. On 9.11.99, the first respondent made a surprise visit to the petitioner's factory and on 23.11.99, notice was received in the petitioner's factory stating that no reply was received and that he to be presumed there is no explanation for the petitioner. On 24.11.99, a reply was sent by the counsel for the petitioner and on 24.11.99, two notices were received by the petitioner directing him (1) to close the factory under section 142 and (2) notice of enquiry under section 133, Cr.P.C. on 24.11.99, at 6 P.M., the premises of the petitioner was sealed. According to the learned counsel for the petitioner, the loss of income to the company per day is about 40 lakhs and 320 workers have been thrown out of work and loss of transporters per day is about 1.20 lakhs.
6. The main argument which has been put forward by the learned counsel for the petitioner in the two petitions is the requirement of the Section 133(1)(b)(ii) and Section 142, Cr.P.C. have not been complied with which are extracted below for the purpose of better appreciation.
133. Conditional Order For Removal of Nuisance:
(1) Whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State
Government, on receiving the report of a Police Officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(b) that the conduct of any trade or occupation, or the keeping of any goods or mechandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or mechandise should be removed or the keeping thereof regulated; or
(ii) to desist from carrying one or to remove or regulate in such manner as may be directed, such trade or occupation , or to remove such goods or mechandise, or to regulate the keeping thereof in such manner as may be directed;
142. Injunctions Pending Injury- (i) If a Magistrate making an order under Section 133 considers that immediate measures should be taken to prevent imminent danger or injury of serious kind to the public, he may issue such an injunction to the person, against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.
(2) in default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this Section.
7. It is contended on behalf of the petitioner in both the petitions that an Executive Magistrate shall draw a preliminary order which is sine qua non for initiating proceedings under Section 133, Cr.P.C. and shall also follow the procedure provided for, in Section 138, Cr.P.C. The omission on the part of the Executive Magistrate to draw a preliminary order and directing the petitioner to close his operations at once is unsustainble in law. It is argued that though as per section 133, at the time of drawing up the preliminary order, an Executive Magistrate has power to prescribe order, an Executive Magistrate has power to prescribe or regulate such products which are injurious to the health or physical comfort of the community at the first instance he has to direct the person dealing with such trade or occupation to desist from carrying on or remove or regulate in such a manner as may be directed. Likewise, an Executive Magistrate while passing an order under Section 133, Cr.P.C. Considers that immediate measures should be taken to prevent imminent danger or injury of serious kind to the public, he may issue such an injunction to the person against whom the order was made to obviate prevent such danger or injury, pending determination of the matter and in default of such person forthwith obeying such injunction, the Executive Magistrate himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. In support of the above argument, reliance is placed on C.A. Avarachan v. C.V. Srinivasan and another, 1996 (7) SCC 71, where, in Paragraph 4, it is held by the Supreme Court as under :-
" In our opinion the omission on the part of the Sub Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138, Cr.P.C. the order made by the Sub Divisional Magistrate on 13.1.1988 is unsustainble and is vitiated. The High Court in error in not properly appreciating the effect of non compliance with the mandatory requirements of drawing up a p reliminary order before proceedings under section 133, Cr.P.C. Neither the order of the High Court nor that of the sub Divisional Magistrate can therefore be sustained.?Other decisions relied on are:
(1) V. Sethuraman v. K.K. Natarajan and others, 1991 L.W. (Crl) 225; (2) Mangal and others v. State of U.P. and others, 1977 Crl.L.J. 1036 (3) Chand and another v. State and others, 1993 (1) Crimes 907 (4) Balwant Singh v. Mandir Lakshminarain, ILR 1970 (2) Del. 488 (5) T.K. Kelappan v. The Revenue Inspector and another, 1983 (3) Crimes 468 (6) Donnington Tea Factory and 5 others v. Sub Divisional Magistrate and Sub Collector, Coonoor, The Nilgiris and another, 1999 CCR 267, (7) Thiruvalluvar Transport Corporation v. Consumer Protection Council, 1995 (2) SCC 479.
8. A careful reading of the above decisions show that the principal of law insisted is that for issuing an order of injunction under Section 142, Cr.P.C. a conditional order under Section 133 is a must and that an order under Section 133, Cr.P.C. itself will not give the power for passing order under Section 142, Cr.P.C. and that the Executive Magistrate must satisfy himself that imminent and serious injury may be caused to the public. If there is no indication of such satisfaction in the order under Section 142 or somewhere in the file of the case, the order is liable to be quashed. It is also laid down that the preliminary order under Section 133 shall be issued in Form No.20 and the order of injunction under Section 142 has to be issued as per Form No.22 of the Criminal Procedure Code. It is pointed out by the learned counsel for the petitioner in both the applications the first respondent Executive Magistrate without issuing a show cause notice or directing or giving a reasonable time to the petitioner to desist him from producing the soft drinks and also not satisfying himself that there is imminent danger to the Public Health, directed the petitioner to offer explanation within seven days from the date of the receipt of notice as to why production and sale of Pepsico items of soft drinks should not be prohibited in Kanchipuram Town by closing the production unit of Mamandur as per Section 133(1)(b)(ii) and also issued an order of injunction without following the procedure and ordered immediate closure of the production unit located at Mamandur and stopped the production and sale of the Pepsico items until satisfactory analysis reports are obtained from the Food Analysis Laboratory. The King Institute, Chennai-2, Central Food Laboratory, Mysore-3, Central Food Laboratory, Gaziabad UP. If the petitioner has not complied with the order of injunction within the tine prescribed or desisted from the same, then only the Executive Magistrate ought to have ordered closure of the production unit of the petitioner. Further the orders have not been issued as per Form 20 and 22 respectively and therefore, the order of the Executive Magistrate passed under Section 133(1)(b)(ii) and Section 142 are liable to be quashed.
9. The Government Advocate appearing for the respondents, 1,4,5, and 6 and the learned counsel appearing for respondents 2 and 3 submitted that by releasing the cool drink with dust and full of dist and allowing it to be sold through distributor, the petitioner has created a great health hazard to the public of Kancheepuram town and also the members of the surrounding villages, where the soft drink manufactured by them are sold, as the some is highly injurious for human consumption.
10. According to the learned counsel for the petitioner the cool drink bottles seized by the first respondent are spurious cool drink bottles not manufactured and released for sale by them and they are not aware of it. However, it is noticed that the petitioner had at no point of time made a complaint what spurious cool drink bottles under their brand name are available in the market and the concerned authorities should take immediate and necessary action to stop such bottles being sold, creating a health hazard and that they are not responsible for the release of those bottles. In the above circumstances, I find it difficult to accept the submissions of the learned counsel for the petitioner in both the petitions that cool drink bottles seized are spurious and they have not been manufactured in their unit and released for sale though their distributor. It is seen, notice has been issued to the petitioner even though it was not a party at the initial stage and copy of the documents have been furnished to it and after giving opportunity, the first respondent has passed the impugned order.
11. In my opinion, the defect with the impugned order is that the first respondent has not followed the procedure for passing a preliminary order under Section 133(1)(b)(ii) and also for passing order of injunction, till the disposal of the main application, as laid down in the decisions mentioned above. Even though the order passed under Section 133(1)(b)(ii) can be stated to be a preliminary order as no final order has not been passed it has not been passed as par the procedure laid down under law and prescribed in Form No.20. Likewise, the order of injunction passed under Section 142 has not been passed under Form No.22. The first respondent has ordered immediate closure of the manufacturing unit of the petitioner which is erroneous. He should have given reasonable time to the petitioner to desist from manufacturing the cool drink bottles, and if he has failed to comply with the order, only then he should have taken steps to close the manufacturing unit of the petitioner which is not legally correct. Further as already mentioned, the order under Section 133 and under Section 142, Cr.P.C. have not been passed by the first respondent under the prescribed form Nos.20 and 22 respectively. Even though there is reason to hold that the petitioner has
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manufactured the bottles seized by the first respondent from the susee Corporation premises and in another shop, have been manufactured by the petitioner and he has created a health hazard to the members of the Public, I find great difficulty to uphold the order of the first respondent, as he has not followed the correct procedure prescribed under law. 12. It is a matter of great concern to this Court that a large number of orders passed by the Executive Magistrate get quashed by the High Court as elementary mandate of observance of the procedure laid down under the law is not followed with the result, the proceedings taken under Section 133 and 142, Cr.P.C. become an unfruitful exercise for the authorities who are in charge of maintenance of law and order and especially in a case where great injury to the Public Heath is caused which will have disastrous consequences. Therefore, it is considered necessary that the Government of Tamil Nadu shall issue a special circular to the Executive Magistrates to draw their attention to the correct procedure that has to be followed when they pass orders under Sections 133 and 142, Cr.P.C. 13. In view of the above, I find it unnecessary to deal with the other contentions raised by the learned counsel for the petitioner on both the petitions, as the foundation namely the correct procedure as laid down under the law and pointed out in the various decisions cited above has not been followed by the first respondent and the impugned order of the first respondent has to be quashed on that ground. 14. In the result, both the petitions are allowed and the impugned order passed by the first respondent in RC.26278/99/85 shall stand quashed. However, it is open to the first respondent to initiate proceedings afresh against the petitioner and proceed with the enquiry following the correct procedure if the situation warranted it and the health hazard has not been abated still and continues in presenti also. Both the petitions are ordered in the above terms.