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Madhya Pradesh High Court · body

2021 DIGILAW 391 (MP)

GAHOI GRAH UDDHYOG v. STATE OF M. P.

2021-03-17

VISHAL MISHRA

body2021
ORDER/JUDGMENT – Shri Harshad Bahirani, learned counsel for the petitioner. Shri Jitesh Sharma, learned Govt. Advocate for the respondent/State. With the consent of learned counsel for the parties, the matter is finally heard. The present petition is being filed by the petitioner seeking following reliefs : “A. That the impugned action of the respondents whereby the petitioner premises has been locked may kindly be quashed and direction may kindly be issued to the respondent for unlocking the premises immediately. B. That further direction may kindly be given to the respondents that the FIR registered against the petitioner at Crime No. 99/2021 may kindly be quashed. C. That petitioner premises has been lock since long just because of arbitrary action of respondents so, from locking the premises and till unlocking the compensation rupees 25 lakhs rupees may kindly be awarded against the respondent authority. D. That other relief which is deems fit may kindly be awarded in favour of the petitioner.” 2. Learned counsel for the petitioner submits that the petitioner is running the floor mill in the name and style of Gahoi Grah Uddhyog in Transport Nagar, Gwalior and the petitioner has registered the firm under Rule 3 (3) of Shop and Establishment Act, 1958. It is submitted that the joint inspection has been carried out at the petitioner’s floor mill on 28-1-2021 and during inspection by respondent No. 5 and his colleague it is alleged that in the premises of the petitioner Chilli, Coriander and Turmeric Powder etc. were being flooring and packed and at the time of incident in the name of Khwaish Chili Powder, Coriander Powder were store and also inspecting authority found the colour and mustered oil and after taking over the possession of edible spices the sample were taken for the analysis and in this regard the Food Safety Officer prepared the form 5-A under Rule 2.4.1 (3) of FSSA 2011. The aforesaid samples of edible spices which were taken from the Floor Mill Plant of the petitioner sent to the Food Analyst State Food Testing Laboratory from where report is awaited, but without receiving any sample report on 29-1-2021 Designated Officer had written the letter to Superintendent of Police for registering the FIR against the petitioner. In pursuance to the aforesaid letter an FIR has been registered at Crime No. 99/2021 for the offence under section 420, 272, 273 of IPC. In pursuance to the aforesaid letter an FIR has been registered at Crime No. 99/2021 for the offence under section 420, 272, 273 of IPC. It is submitted that the respondent authority was having no jurisdiction to lock the premises of the petitioner under any law. Learned counsel for the petitioner submitted that the respondent authority has no right to lock the immovable property and at the most they can remove the objectionable food articles and in this regard the petitioner has placed reliance on the decision of this Court passed in the case of Rajkumar Rathor vs. State of M.P. and others, W.P.No. 19701/2019 in which this Court has clearly held that immovable property cannot be seized and sealed by inspecting authority in case of keeping any objectionable food material in the said premises at the most if the inspecting authority has apprehension food article substandard and adulterated then they may only remove the said article from the said premises as considered by Hon’ble Apex Court in the case of Nevada Properties Pvt. Ltd. vs. State of Maharashtra, 2019 (20) PN 19. It is argued by the learned counsel for the petitioner that the premises of the petitioner may kindly be unlocked and further the FIR registered against the petitioner at Crime No. 99/2021 may kindly be quashed. 3. Per contra, counsel for the State has opposed the petition and argued that the petitioner is involved in the manufacturing, storage and sale of adulterated food articles specially spices. It is further argued that on 28-1-2021 the Food Safety Officer, Gwalior along with team raided the house of Rajendra Shivhare from where the petitioner is running business by name and title of Gahoi Grah Uddyog (Floor Mill). During inspection of the premises the petitioner was present and various adulterated food articles along with packing material etc. of various forged names are being recovered and seized and on the report of the Food Safety Officer an FIR under sections 272, 273, 420 of IPC has been registered at Crime No. 99/2020 before Police Station Bahodapur on 29-1-2021 against the proprietor of the petitioner’s firm. It is further argued by State Counsel that as per the provisions of FSSA team lifted the samples from the petitioner’s premises which are prima facie reflected to be adulterated. It is further argued by State Counsel that as per the provisions of FSSA team lifted the samples from the petitioner’s premises which are prima facie reflected to be adulterated. It is further argued that after inspection and sampling of adulterated food articles as per the provision of section 38 the Food Safety Officer along with designated officer as defined in section 38 of the said Act kept such article in the custody of petitioner and after taking consent of petitioner’s firm proprietor and a bond as per the provisions of section 38 the premises was closed until petitioner’s firm obtain a valid licence and registration of business to operate its business from the raided premises i.e. Gahoi Grah Uddyog at Girraj Colony behind Sudarsan Petrol Pump Transport Nagar. Therefore, it is clear that in absence of Shop Registration Act and licence as per FSSA the premises was closed after taking consent only till petitioner obtain valid legal documents to run his business from Transport Nagar. Therefore, the judgment relied upon by the petitioner in the case of Nevada Properties (supra) is not applicable to the facts and circumstances of the present case and prays for dismissal of the writ petition. 4. Heard the learned counsel for the parties and perused the record. 5. From the perusal of the record, it is seen that the petitioner is running his business in the name and style of Gahoi Grah Uddhyog in Transport Nagar, Gwalior. As per the petitioner he is having the registration as well as license for carrying on the business. On sudden inspection being carried on 28-1-2021 the petitioner was found carrying on a business in some other premises then what has been provided by the licensing authority. Therefore, the articles were seized and premises of the petitioner was sealed. It is not disputed that the petitioner was earlier warned not to carry on business in the aforesaid premises in question for which the petitioner has already submitted a undertaking to the authorities, which is filed along with the reply filed by the authorities. The undertaking given by the petitioner reads as under : 6. From perusal of the license of the petitioner, it is seen that the same was given to carrying on the business at a place Gende Wali Sadak, Lashkar, Gwalior, but the petitioner was found carrying on his business behind Sudarsan Petrol Pump, Transport Nagar. The undertaking given by the petitioner reads as under : 6. From perusal of the license of the petitioner, it is seen that the same was given to carrying on the business at a place Gende Wali Sadak, Lashkar, Gwalior, but the petitioner was found carrying on his business behind Sudarsan Petrol Pump, Transport Nagar. It is clear that the petitioner was not having any valid registration or license to carry on the business at Transport Nagar, Gwalior. In such circumstances, during the inspection the petitioner was found running food business like manufacturing, packing, storage and sale of food products and the same was in-violation of the section 21 of the Food Safety and Standards Act, 2006 and in contravention of section 31(1) of the Food Safety Act, 2006. In such circumstances the action was taken against the petitioner. It is not a case that the petitioner was carrying on a business of adulteration, which is yet to be examined by the authorities, but the fact remains that without any having proper license to carry on the business at a particular place at the place where the inspection was taken, the petitioner was found doing the business, therefore, the premises sealed by the authorities. In such circumstances, the judgment relied upon by the petitioner in the case of Nevada Properties (supra) is not applicable to the facts and circumstances of the present case. 7. The Hon’ble Supreme Court in the case of Nevada Properties (supra) in reference to a judgment by the Bombay High Court has considered the provisions of section 102 of Cr.P.C. action to be taken by the police authorities and locking of premises and the reference was answered as under : “5. Sub-section (1) of section 102 empowers a police officer to seize any property which may be alleged or suspected to have been stolen. Theft can take place only of movable property and not of immovable property. In my view, the word ‘seized’ has been used in the sense of taking actual physical custody of the property. Sub-section (3) of section 102 provides that where it is difficult to conveniently transport the property to the Court or there is difficulty in securing proper accommodation for the custody of the property, then the property can be given to any person on his executing a bond. Sub-section (3) of section 102 provides that where it is difficult to conveniently transport the property to the Court or there is difficulty in securing proper accommodation for the custody of the property, then the property can be given to any person on his executing a bond. This per se indicates that the property must be capable of production in Court and also be capable of being kept inside some accommodation. This obviously cannot be done with immovable property. 6. Section 102 has been in the statute book for more than a century. Section 102 corresponds to section 550 of the Code of Criminal Procedure, 1898. For more than a century the Courts have read the words ‘any property’ to mean movable property 151617 AIR 1960 AII 405 WP(C) No. 12275 of 2012, Judgment dated 26-7-2012 (Ker HC) 2016(3) PLJR 464 Criminal Appeal arising out of and no decision to the contrary was brought to our notice. Reliance is only placed on the judgment of this Court in State of Maharashtra vs. Tapas D. Neogy. In that case, the question was totally different and this Court only decided that a bank account of an accused was property within the meaning of section 102. The Court did not go into the question of movable or immovable property and, therefore, this judgment would not be applicable. 7. I would also like to point out that in the Code of Criminal Procedure itself the Legislature has in various provisions specifically used the words ‘movable’ and ‘immovable’ property. Some of those have been dealt with by my learned brother. In this regard reference may be made to section 83 of the Cr.P.C. which relates to seizure of the property of a proclaimed absconder. Sub-section (1) of section 83 reads as follows : “(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:... (1999) 7 SCC 685 Criminal Appeal arising out of the Legislature in its wisdom uses the words order the attachment of any property, movable or immovable or both. This is in contradistinction to the words ‘any property’ used in section 102. 8. Chapter VIIA was introduced in Cr.P.C. vide Act 40 of 1993 w.e.f. 20th July, 1994. (1999) 7 SCC 685 Criminal Appeal arising out of the Legislature in its wisdom uses the words order the attachment of any property, movable or immovable or both. This is in contradistinction to the words ‘any property’ used in section 102. 8. Chapter VIIA was introduced in Cr.P.C. vide Act 40 of 1993 w.e.f. 20th July, 1994. This Chapter deals with reciprocal arrangements for assistance in certain matters and procedure for attachment and forfeiture of property. Property has been defined in section 105A(d) as follows : “‘Property’ means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime.” This would include property of all kinds, movable and immovable. The Legislature made it clear that property of all kinds can be attached and forfeited. Section 105C (1) reads as follows : “S.105C (1) Where a Court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of section 105D to 105J (both inclusive).” Reading all these provisions together, it is clear that when any Court in India has reasonable grounds to believe that any property has been obtained by any person directly or indirectly from the Criminal Appeal arising out of commission of an offence, the Court may make an order for attachment or forfeiture of such property. 9. This Court is not concerned with the procedure to be followed for attachment and forfeiture of the property but only the meaning of the word ‘property’. Thus, section 105C empowers the Court to order forfeiture of any property which it may feel is derived or obtained directly or indirectly by the commission of an offence. 10. If the argument of the appellant and the State of Maharashtra is accepted then there was no need for the legislature to have introduced Chapter VIIA. It would also be pertinent to mention that the power of attachment and forfeiture is given to Courts and not to police officer. 10. If the argument of the appellant and the State of Maharashtra is accepted then there was no need for the legislature to have introduced Chapter VIIA. It would also be pertinent to mention that the power of attachment and forfeiture is given to Courts and not to police officer. As pointed out in the judgment of my learned brother, if a police officer is given the power to seize immovable property it may lead to an absolutely chaotic situation. To give an example, if there is a physical fight between the landlord and the tenant over the rented premises and if the version of the appellant is to be accepted, the police official would be entitled to seize the tenanted property. This would make a mockery of rent laws. To give another example, if a person forges a will and thereby claims property on the basis of the forged will, can the police officer be Criminal Appeal arising out of given the power to seize the entire property, both movable and immovable, that may be mentioned in the will? The answer has to be in the negative. Otherwise it would lead to an absurd situation which could never have been envisaged by the Legislature. The power of seizure in section 102 has to be limited to movable property. 11. As far as the meaning of property in section 452 of the Cr.P.C. is concerned, that is not a question referred to the larger Bench and therefore, I would refrain from saying anything about that. 12. In view of the above, I would answer the reference by holding that the phrase ‘any property’ in section 102 will only cover moveable property and not immovable property.” 8. This Court in the case of Rajkumar Rathor (supra) has considered the aforesaid aspect and vide order dated 8-1-2020 has quashed the proceedings and has directed for unlocking the premises holding as under : “He has further relied upon the order passed by Hon. High Court in the case of Nisar Hussain vs. State of Chhattisgarh in W.P.No. (C) No. 1559 of 2018 on 6th July, 2018 wherein relying upon the Full Bench judgment of the Hon. High Court rendered in the case of Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood through its Power of Attorney Holder Mr. Rajesh Baxi Chetna Properties Pvt. Ltd. vs. State of Maharashtra, reported in 2016 JLJR (1) 443, reference was answered in the following terms : “86. To sum up, we answer the reference thus : Q.(a) Whether the words “any property” used in sub-section (1) of section 102 of the Code of Criminal Procedure, 1973 would mean to include “immovable property”? Ans. We, therefore, hold that the expression “any property” used in sub-section (1) of section 102 of the Code does not include immovable property. Question (a), is, therefore, answered in the negative. Q.(b) Whether a police officer can take control of any immovable property which may be found under circumstances which create suspicion of the commission of any offence? Ans. No.” Considering the aforesaid order, the High Court of Chhattisgarh has allowed the writ petition directing the police officers to remove the seal on the immovable property of the petitioner and vacate the premises of the petitioner after making inventory of the articles which are lying on the shop. Counsel for the petitioner prayed for similar relief to the petitioner also. Per contra, counsel for the State could not dispute the factum of passing of the orders aforesaid by Hon. Apex Court as well as by the High Court of Chhattisgarh and submits that the representation submitted by the petitioner shall be considered expeditiously. He further submits that he is having no objection if a direction is issued for unlocking of premises. However, he submits that they be granted liberty to seize all the objectionable food articles lying in the premises. Considering the facts and circumstances of the case and the law laid down by the High Court of Chhattisgarh and by Hon. Apex Court, this Court deems it proper to direct respondent authorities to consider and decide the representation of the petitioner within a period of fifteen days from the date of receipt of certified copy of this order and unlock the premises of the petitioner. They are at liberty to seize all the objectionable articles from the premises of the petitioner. The petitioner is further directed to cooperate with the police authorities in the investigation of the criminal case registered at Crime No. 380 of 2019 for the offences punishable under sections 420, 272, 273, 120B of IPC read with section 51 and 59 of Food Safety Act 2006.” 9. The petitioner is further directed to cooperate with the police authorities in the investigation of the criminal case registered at Crime No. 380 of 2019 for the offences punishable under sections 420, 272, 273, 120B of IPC read with section 51 and 59 of Food Safety Act 2006.” 9. In such circumstances the law is well settled with respect to locking of the premises by the Police Authorities in the case of Nevada Properties (supra). Thus, the action taken by the authorities in locking the premises of the petitioner is unjustified. The petitioner has already submitted a detailed representation to the aforesaid effect to the respondents authorities, as far as the same be considered and decided expeditiously. 10. As far as the registration of the FIR against the petitioner is concerned, the investigation is pending in the matter and it is not a simple case of adulteration being carried out by the petitioner, but it is a case where the petitioner without having any valid license and registration with respect to carrying on the business at a particular place i.e. Transport Nagar, Gwalior was found doing the business of manufacturing, packing, sale and purchase of the food grains. In such circumstances, the FIR has rightly been registered against the petitioner. It is settled proposition of law that pending investigation FIR should not generally be quashed. From the facts available on record, the FIR was registered against the petitioner, which clearly discloses the commission of offence by the petitioner. In such circumstances, this Court refrains from interfering with respect to the FIR in the case. The prayer made by the petitioner for quashment of FIR is accordingly declined. 11. Considering the overall facts and circumstances of the case and the law laid down by the Hon’ble Supreme Court in the case of Nevada Properties (supra), this Court deems it appropriate to direct the authorities to consider and decide the representation of the petitioner with respect to unlocking the premises in question. The petitioner is also directed to submit a detailed undertaking to the effect that the authorities may be free to seize all the movable articles from the premises in question. The undertaking be submitted by the petitioner within a period of seven days from the date of receipt of certified copy of the order and the representation be decided within a period of 15 days. 12. The undertaking be submitted by the petitioner within a period of seven days from the date of receipt of certified copy of the order and the representation be decided within a period of 15 days. 12. With the aforesaid terms, the petition is partly allowed and disposed of. 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