(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge in W.P.No.18234 of 2008, dated 30.09.2008.)
(Judgment of the Court was delivered by ELIPE DHARMA RAO, J)
1. Aggrieved by the order passed by the learned single Judge dated 30.9.2008 in W.P.No.18234 of 2008, the State and its subordinate officials have come forward with the present appeal.
2. The respondent has filed the writ petition for issuing Writ of Certiorarified Mandamus to quash the search and seizure memo issued by the Food Inspector, namely, the fourth appellant, dated 22.7.2008, and consequently to forbear the appellants from taking any action in respect of the manufacturing process of skimmed milk powder of cattle feed grade under the provisions of the Prevention of Food Adulteration Act and the Rules made thereunder.
3. The facts leading to filing of the writ petition and the writ appeal in brief are as follows: -
The respondent is a company registered under the Indian Companies Act, 1956, engaged in procuring, processing and marketing milk and milk products. The respondent Company is having two blending processing units at Kancheepuram and Salem dairies apart from one Chilling centre at Nadukuppam village at Vandasvasi Taluk. The respondent has been carrying on packaging process of skimmed milk powder meant for human consumption in their dairy at Kanchipuram. The respondent has imported the ingredients of lactose, which is one of the forms of sugar, for manufacture of skimmed milk powder for human consumption and also for cattle feed grade. The respondent received purchase order dated 30.6.2008 from Philippines for supply of skimmed milk powder cattle feed grade. Based on such purchase order, necessary blending process was carried on in the chilling centre at Nadukuppam by utilizing the lactose which shelf life period was prescribed as 2 years in February, 2008. While so, on 22.7.2008, a team of officials headed by the Food Inspector, namely, the fourth appellant, inspected the Chilling Centre of the respondent at Nadukuppam village and took sample of skimmed milk powder and lactose and sent them for analysis. After making inspection, it was found out that in the process of preparing Milk Powder, date expired edible lactose was mixed with Hatsun Skimmed Milk powder, then it was repacked with new fresh milk powder. On the aforesaid facts, search and seizure memo was issued by the fourth appellant on 22.7.2009. The said search and seizure memo was under challenge before the learned single Judge.
4. The main contention of the respondent before the learned single Judge was that the Provisions of the Prevention of Food Adulteration Act, 1954 would not apply to the present case and the Food Inspector has no jurisdiction to take samples of cattle feed grade of skimmed milk powder as it was not a food article. It was also contended that no notice of intention to enter upon the premises as mandated in Rule 12 of the Prevention of Food Adulteration Rules was not issued, thereby violated 10(3) of the aforesaid Act.
5. The learned single Judge after hearing both sides and going through the materials on record by a detailed order came to a conclusion that the appellants have not taken steps in the manner known to law and they had in casual manner entered into the place of the respondent and seized the materials, which can only be treated as an emotional outburst and not as per law. On arriving at the aforesaid conclusion, the learned single Judge quashed the impugned seizure memo dated 22.7.2008 and allowed the writ petition giving liberty to the appellants to take appropriate action as per the Food Safety and Standards Act, 2006. Aggrieved by the said order, the present appeal has been filed.
6. Learned Special Government Pleader appearing for the appellants contended that Sections 112, 112-A of the Public Health Act provide that the Health Officer or any person duly authorized by him may without notice enter any place at any time where any article of food is being manufactured and inspect such article and sent the samples for analysis and, on such examination, he finds any such article of food to be unwholesome, he may condemn it and forbid its sale, and, therefore, the learned single Judge was wrong in holding that no action could taken under the Public Health Act or the Prevention of Food Adulteration Act. Learned counsel for the appellant has further contended that the powers exercised by the third and fourth appellants are legally valid and are in accordance with law.
7. Learned counsel for the respondent supported the decision of the learned singe Judge and reiterated the contentions raised in the writ petition. He would mainly contend that the appellants has no jurisdiction to take action under the provisions of the Prevention of Food Adulteration Act.
8. We have heard the learned Special Government Pleader for the appellants and the learned counsel for the respondent and perused the materials on record.
9. Since heavy reliance has been placed on Sections 112 and 112-A of the Public Health Act by the Special Government Pleader to submit that those provisions had enabled the authorities to inspect and take action on the respondent, the said provisions are extracted hereunder: -
"112. Power of Health Officer to enter premises used for food trade. - (1) The Health Officer or any person duly authorized by him may, without notice, enter any place at any time, by day or by night, where any article of food is being manufactured, prepared, exposed or stored for sale, and inspect such article and any utensil or vessel used for manufacturing, preparing or containing the same.
(2) Samples of any article of food or any vessel or utensil, in which such articles of food are kept may be taken and examined by the Health Officer or any person duly authorized by him as often as may be necessary for the detection of unwholesomeness. If on such examination he finds any such article of food to be unwholesome, he may condemn it and forbid its sale.
(3) Whoever obstructs the Health Officer or person duly authorized by him in the discharge of his duties under this section shall be punishable with fine which may extend to one hundred rupees."
"112-A. Power of the Health Officer in regard to unwholesome food.- (1) If any article intended for food appears to the Health Officer or to a person duly authorized by him to be unfit for human consumption or is unwholesome or the utensil or vessel used in manufacturing, preparing or keeping such article appears to be of such kind or in such state as to render the articles unwholesome or noxious, he may seize or take away or secure such article or utensil or vessel in order that the same may be dealt with as hereinafter provided."
10. According to the learned Special Govt. Pleader the aforesaid provisions of the Tamil Nadu Public Health Act, 1939 empowers the Health Officer to enter any premises used for food trade for purposes of inspection. It is not in dispute that the aforesaid provisions gives a right to the Health Officer to enter, inspect and examine various places and things used for food trade. The contention of the respondent is that the use of the skimmed milk powder was for the purpose of manufacturing the cattle feed grade and, therefore, it is not a food article and the provisions of the Public Health Act or the Prevention of Food Adulteration Act would not apply.
11. Whether the seized article is a food article or a cattle feed grade of skimmed milk powder could only be determined from the Analysis Report, which would be prepared on the basis of the samples sent for laboratory. In the present case, the alleged food article, namely, the skimmed milk powder, was seized and sent for chemical analysis report. The respondent has not even waited for the analysis report. Even before identifying the seized product, whether it was a food article or cattle feed as contended by the respondent, he had challenged the search and seizure memo before the learned single Judge. Even assuming that the seized article was a cattle feed, it could be confirmed and seen only from the Analysis report and not before that. The decision of the Health Officer under the Act is not final. Section 136 of the Public Health Act provides for appeal against the decision of the Health Officer.
12. The learned single Judge has gone into the aspect whether the Food Adulteration Act would apply to the present case or not and what would be the Statute applicable to the facts of the present case, even at the initial stage of search and seizure. After seizure, the Act provides for passing an order on the basis of the analysis report and thereafter an appeal and after which, if the circumstances so warrant, filing of the writ petition. The learned single Judge has gone into the merits of the case when the facts of the case does not so warrant. From a reading of the impugned order we are o
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f the considered opinion that the respondent has approached this Court at the premature stage and the contentions raised were considered and upheld by the learned single Judge in a lengthy order at a premature stage. The respondent could have waited for the result of the analysis report and thereafter for a decision to be taken by the appropriate authorities and, thereafter, after exhausting appeal remedy, he could have approached this Court. We are of the opinion that the matter has to be gone into and should have been decided by the authorities on the basis of the analysis report, since they would be the experts in the matter than this Court. 13. For the aforesaid reasons, we are not inclined to uphold the order of the learned single Judge as the respondent has approached this Court by exercising writ jurisdiction at a premature stage and, accordingly, the writ appeal is allowed. It goes without saying that the authorities are at liberty to proceed against the respondents in accordance with law.