Madras High Court
The Commissioner vs S.Subramaniyan on 25 August, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A(MD) No.900 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 08.08.2025
Pronounced on : 25.08.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A(MD) No.900 of 2025
and
C.M.P.(MD)No.5852 of 2025
1.The Commissioner,
Tamil Nadu Food Safety
and Drug Administration
Department,
DMS Campus, Teynampet,
Chennai – 600 006.
2.The Designated Officer,
Tamil Nadu Food Safety and
Drug Administration
Department, Food Safety Wing,
Sivagangai District. ... Appellants
Vs.
1.S.Subramaniyan
2.The Inspector of Police,
Nerkuppai, Police Station,
Nerkuppai, Sivagangai District. ... Respondents
1/24
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W.A(MD) No.900 of 2025
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying
this Court to set aside the order dated 31.01.2023 made in WP(MD)No.
1040 of 2023.
For Appellant : Mr.A.Kannan,
Additional Government Pleader
For Respondents : Mr.S.Ramanathan for R1
Mr.T.Senthilkumar,
Additional Public Prosecutor for R2
JUDGMENT
(By G.R.SWAMINATHAN, J.)
This appeal is directed against the order dated 28.02.2025 made in
WP(MD)No.5378 of 2025 filed by the first respondent herein. The first
respondent has been running a petty shop in the petition-mentioned
premises. On 07.12.2024, the Inspector of Police, Nerkuppai Police
Station, Sivagangai District inspected the shop premises and found that
the shop keeper (R1 herein) had kept concealed certain banned tobacco
products for sale. He thereupon registered Crime No.75 of 2024 under
Section 24(1) of the Cigarette and Other Tobacco Products Act, 2003.
This was forwarded to the Designated Officer, Tamil Nadu Food Safety
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and Drug Administration Department, Food Safety Wing, Sivagangai
District on 01.02.2025 for taking further action. Thereafter, the said
officer inspected the first respondent's shop and passed the impugned
order dated 06.02.2025 whereby the shop keeper was fined Rs.25,000/-
and the shop was also sealed. Challenging the said order, WP(MD)No.
5378 of 2025 was filed. The learned Single Judge directed de-sealing of
the premises vide order dated 28.02.2025. The prosecution was allowed
to go on. Assailing the said order, this writ appeal has been filed.
2.The learned Additional Government Pleader reiterated all the
contentions set out in the grounds of appeal. He pointed out that certain
tobacco products such as gutkha have been banned but the writ petitioner
was keeping them for sale. He pointed out that the Designated Officer
under the Food Safety and Standards Act, 2006 is having the power to
seal the unlicensed premises/shops. He added that the Commissioner of
Food Safety had issued order bearing R.No.8491/2019/S1/FSSA dated
04.01.2024 providing for levy of compounding penalty for selling
banned food items. The quantum of fine would vary whether the penalty
was being levied for first time offence, second time offence or third time
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offence. He also submitted that considering the larger social
implications, this Court may set aside the order of the learned Single
Judge.
3.Per contra, the learned counsel appearing for the writ petitioner
submitted that the shop in question has been under lock and seal for more
than six months and that the writ petitioner's livelihood has been
seriously affected.
4.We carefully considered the rival contentions. Even while we
acknowledge that sale of banned tobacco products has a deleterious
impact on public health, the issues raised in this writ appeal have to be
answered through the prism of legality. We keep aside our moral
sentiments. The first question is whether the Food Safety Officer has the
power to seal any business premises ? The answer is in the affirmative.
But it is hedged with certain conditions. Rule 2.1.3(4) of the Food Safety
and Standards Rules, 2011 sets them out. It reads as follows :
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“2.1.3: Food Safety Officer
4. Powers and Duties:
(i) Without prejudice to the powers conferred on him under
section 38 of the Act, where the Food Safety Officer is of
the opinion or he has reason(s) to be recorded in writing that
in the given situation it is not possible to comply with the
provision of section 38 (1) (c) or the proviso to section
38(1) for reasons like non availability of the Food Business
Operator, the Food Safety Officer may seize the adulterant
or food which is unsafe or sub-standard or mis-branded or
containing extraneous matter, may seal the premises for
investigation after taking a sample of such adulterant or
food for analysis...”
The above Rule refers to Section 38 of the Food Safety and Standards
Act, 2006 which deals with the powers of Food Safety Officer. It reads
as follows :
“38.Powers of Food Safety Officer. (1) The Food Safety
Officer may –
(a) take a sample –
(i) of any food, or any substance, which appears to him to be
intended for sale, or to have been sold for human
consumption; or
(ii) of any article of food or substance which is found by him
on or in any such premises; which he has reason to believe
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that it may be required as evidence in proceedings under any
of the provisions of this Act or of the regulations or orders
made thereunder; or
(b) seize any article of food which appears to the Food Safety
Officer to be in contravention of this Act or the regulations
made thereunder; and
(c) keep it in the safe custody of the food business operator
such article of food after taking a sample; and in both cases
send the same for analysis to a Food Analyst for the local area
within which such sample has been taken:
Provided that where the Food Safety Officer keeps such article
in the safe custody of the food business operator, he may
require the food business operator to execute a bond for a sum
of money equal to the value of such article with one or more
sureties as the Food Safety Officer deems fit and the food
business operator shall execute the bond accordingly.
(2) The Food Safety Officer may enter and inspect any place
where the article of food is manufactured, or stored for sale, or
stored for the manufacture of any other article of food, or
exposed or exhibited for sale and where any adulterant is
manufactured or kept, and take samples of such articles of
food or adulterant for analysis.
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(3) Where any sample is taken, its cost calculated at the rate at
which the article is usually sold to the public shall be paid to
the person from whom it is taken.
(4) Where any article of food seized under clause (b) of
subsection (1) is of a perishable nature and the Food Safety
Officer is satisfied that such article of food is so deteriorated
that it is unfit for human consumption, the Food Safety Officer
may, after giving notice in writing to the food business
operator, cause the same to be destroyed.
(5) The Food Safety Officer shall, in exercising the powers of
entry upon, and inspection of any place under this section,
follow, as far as may be, the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) relating to the search or
inspection of a place by a police officer executing a search
warrant issued under that Code.
(6) Any adulterant found in the possession of a manufacturer
or distributor of, or dealer in, any article of food or in any of
the premises occupied by him as such and for the possession
of which he is unable to account to the satisfaction of the
Food Safety Officer and any books of account or other
documents found in his possession or control and which
would be useful for, or relevant to, any investigation or
proceeding under this Act, may be seized by the Food Safety
Officer and a sample of such adulterant submitted for analysis
to a Food Analyst: Provided that no such books of account or
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other documents shall be seized by the Food Safety Officer
except with the previous approval of the authority to which he
is subordinate.
(7) Where the Food Safety Officer takes any action under
clause (a) of sub-section (1), or sub-section (2), or sub-section
(4) or sub-section (6), he shall, call one or more persons to be
present at the time when such action is taken and take his or
their signatures.
(8) Where any books of account or other documents are seized
under sub-section (6), the Food Safety Officer shall, within a
period not exceeding thirty days from the date of seizure,
return the same to the person from whom they were seized
after copies thereof or extracts there from as certified by that
person in such manner as may be prescribed by the Central
Government have been taken: Provided that where such
person refuses to so certify and a prosecution has been
instituted against him under this Act, such books of account or
other documents shall be returned to him only after copies
thereof and extracts there from as certified by the court have
been taken.
(9) When any adulterant is seized under sub-section (6), the
burden of proving that such adulterant is not meant for
purposes of adulteration shall be on the person from whose
possession such adulterant was seized.
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(10) The Commissioner of Food Safety may from time to time
issue guidelines with regard to exercise of powers of the Food
Safety Officer, which shall be binding:
Provided that the powers of such Food Safety Officer may
also be revoked for a specified period by the Commissioner of
Food Safety.”
Section 38 of the Act empowers the Food Safety Officer to take sample,
seize any article of food that appears to be in contravention of the statute,
enter and inspect any place, and direct destruction of food that is unfit
for human consumption. Nowhere, this provision has conferred any
power to seal the premises. This power is traceable only to Rule 2.1.3(4)
(i) of the 2011 Rules. The Rule itself reads that the premises may be
sealed for investigation after the Food Safety Officer is of the opinion
that in the given situation, it is not possible to comply with the provision
of Section 38(1)(c) or the proviso to Section 38(1) for reasons like non-
availability of the food business operator. Section 38(1)(c) of the Act
envisages keeping the seized food article in the custody of the food
business operator. The proviso to Section 38(1) empowers the Food
Safety Officer in such cases to call upon the food business operator to
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execute a bond with sureties. If the food business operator is not
available, the Food Safety Officer will have no option but to seal the
premises. The sealing of premises is for the purpose of investigation.
5.It is well settled that the power to seal is a drastic power. The Act
and the Rules framed thereunder are both regulatory as well as penal in
character. Therefore, the Rule cannot be expansively or liberally
construed. On the other hand, it has to be strictly interpreted. The
application of the Rule will have to be within the four corners of the
statute.
6.Right to property has ceased to be a fundamental right but it still
retains its constitutional status under Article 300-A. When the property
is used for business purposes, any action to seal the premises would have
a direct bearing and effect on legal rights of the person to use and occupy
the premises. The action of sealing would amount to suspension or
taking away of such legal right, which cannot be resorted unless the
procedure in law is adopted (vide 2023 SCC OnLine Bom 1499,
Narayan Power Solutions vs UOI). The right to carry on business is a
fundamental right guaranteed under Article 19(1)(g) of the Constitution
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of India. Though it is not an absolute right, any interference with a
fundamental right has to meet the standard of proportionality. A measure
restricting a right must have a legitimate goal. It must be a suitable
means of furthering this goal. There must not be any less restrictive but
equally effective alternative. The measure must not have a
disproportionate impact on the right holder. This four-pronged approach
laid down in Aadhar case was approvingly cited in Akshay N.Patel v.
RBI (2022) 3 SCC 694. If on inspection, the officer finds a statutory
violation, he is entitled to seize the food article. But the food business
operator must be present so that the other formalities can be complied
with. If the food business operator is not available in the spot, the officer
has no option but to keep the seized article in the premises itself and seal
the same. If in the absence of the food business operator, the seizure
takes place and the officer takes the sample for testing, the food business
operator can plead later that the seizure was not from his premises. Thus,
this measure has a legitimate goal. It is also an appropriate method of
effectuating the goal.
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7.Let us take a look at the sequence of events. The local police
had conducted an inspection of the shop in question and registered a case
on 07.12.2024. The Designated Officer visited the shop full two months
later and proceeded to seal the premises. The impugned action of the
authority fails at the very threshold stage itself. There was no legitimate
goal to be fulfilled. Secondly, the sealing has to be for the purpose of
investigation. Here, the local police had already registered a case. The
second appellant herein had not taken any sample or seized the banned
food items. Hence, there was no scope for any investigation to be done
by the second appellant. The statutory condition set out in the Rule is
not met. Unless the twin conditions laid down in the Rule (A. The
authority must be of the opinion that it is not possible to comply with the
provision of Section 38(1)(c) or the proviso to Section 38(1) B. Sealing
is necessary for the purpose of investigation) are satisfied, any act of
sealing will be without jurisdiction. The expression “for” found in the
Rule cannot be ignored. P.Ramanatha Aiyar's Advanced Law Lexicon
states that the word “for” is sometimes used as importing a condition
precedent, or as a word of limitation. It can also mean “in the interest” or
“to the benefit of”. In the present context, it can only mean that sealing
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must facilitate investigation. The authority is obliged to show that if
sealing is not done, investigation will be hampered. The investigation
referred to is not investigation by police. Since the Act contemplates
further steps by the Food Safety Officer, the expression “investigation”
would refer only to those steps to be taken by the Food Safety Officer
and nothing else. Further, the sealing of the premises cannot be for
eternity. The investigation has to be concluded within a reasonable time
and once investigation is over, the premises must be de-sealed.
8.In the case on hand, such a situation did not even arise. The
second appellant had sealed the premises by citing the mere registration
of FIR. The impugned action of the authority can only be characterised
as shockingly arbitrary.
9.More than six months have elapsed. The only reason for not de-
sealing the premises is because the writ petitioner did not pay the fine
amount of Rs.25,000/-. The second appellant levied the said penalty
based on the order dated 04.01.2024 issued by the first appellant. It
reads as follows : .
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We have already clarified as to when the authority can resort to sealing
of the premises. It cannot be linked to payment of compounding penalty.
When one is accused of having acted illegally, it is open to the accused to
defend himself in the manner known to law. One can either plead guilty
or contest the charges. Right to defend oneself against an accusation is a
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fundamental right. The person accused cannot be compelled to admit
that he or she committed the offence. If the offender pays the
compounding penalty, he can avoid prosecution. If he does not, he has to
face adjudication under Section 68 of the Food Safety and Standards Act,
2006 or face trial in the criminal court. The choice is left to the
individual. Section 69 of the Act empowers the authority to compound
offences. It reads as follows :
69. Power to compound offences.–The Commissioner of
Food Safety may, by order, empower the Designated
Officer, to accept from petty manufacturers who himself
manufacture and sell any article of food, retailers, hawkers,
itinerant vendors, temporary stall holders against whom a
reasonable belief exists that he has committed an offence or
contravention against this Act, payment of a sum of money
by way of composition of the offence which such person is
suspected to have committed.
(2) On the payment of such sum of money to such officer,
the suspected person, if in custody, shall be discharged and
no further proceedings in respect of the offence shall be
taken against such person.
(3) The sum of money accepted or agreed to be accepted as
composition under sub section (1), shall not be more than
one lakh rupees and due regard shall be made to the
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guidelines specified in section 49: Provided that no offence,
for which punishment of imprisonment has been prescribed
under this Act, shall be compounded.
A proceeding issued in terms of the aforesaid provision cannot be
invoked to validate an act of sealing. The authority cannot insist that
unless the compounding penalty is paid, the shop will be sealed or not
de-sealed. That would amount to rank coercion. Compounding is a
consensual affair. If the offender comes forward to compound the offence
by paying the penalty, the official may accept the payment and close the
prosecution. It cannot be imposed on the accused.
10.An FIR has been registered against the writ petitioner. He
wants to contest the proceedings. He cannot be pressurised into pleading
guilty by paying the compounding penalty. Once penalty is paid, it may
legally amount to an acquittal but nevertheless it is an admission of guilt.
11.We have already held that the twin conditions mentioned above
are absent in this case. The sealing is illegal and the shop shall be de-
sealed immediately. The learned Single Judge had made it clear that the
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writ petitioner has to face the prosecution. We go one step further. The
writ petitioner has to avail the appeal remedy as regards the cancellation
of his business license. The relief granted to him is two fold : a) De-
sealing of the business premises and b) quashing the levy of
compounding penalty.
12.With the aforesaid clarification, we sustain the order of the
learned Single Judge and dismiss this writ appeal. No costs.
Consequently, connected miscellaneous petitions are closed.
(G.R.S., J.) (K.R.S., J.)
25.08.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
SKM
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To
1.The Commissioner,
Tamil Nadu Food Safety
and Drug Administration
Department,
DMS Campus, Teynampet,
Chennai – 600 006.
2.The Designated Officer,
Tamil Nadu Food Safety and
Drug Administration
Department,
Food Safety Wing,
Sivagangai District.
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G.R.SWAMINATHAN, J.
AND
K.RAJASEKAR, J.
SKM
and
25.08.2025
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