M/S. Chenguang Biotechp Ltd vs The State Of Telangana
2021 Latest Caselaw 1486 Tel

      THE HONOURABLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.4588 OF 2020

ORDER:

This Criminal Petition is filed under Section 482 Cr.P.C. to

quash the order dated 05.03.2020 in Crl.M.P.No.71 of 2020 in

C.C.No.639 of 2019 passed by the II Additional Judicial

Magistrate of First Class, Khammam and confirmation order

dated 26.06.2020 passed by the Principal Sessions Judge,

Khammam in Crl.R.P.No.29 of 2020.

2. The petitioner herein is Accused No.4 in C.C.No.639

of 2019. The offences alleged against the petitioner herein are

under Sections 3(1)(z)(iii) 21(1), 26(2)(i) and 59(i) of the Food

Safety and Standards Act, 2006 (for short 'the Act').

3. The petitioner herein claiming to be owner of the

seized property i.e., 99,629 bags of red chilli seeds (as per the

seizure report, 78,857 bags are available physically, each bag

containing 40 kgs) filed a petition under Section 451 Cr.P.C vide

Crl.M.P.No.71 of 2020 in C.C.No.639 of 2019 seeking release of

the seized stock and the II Additional Judicial Magistrate of

First Class, Khammam vide order dated 05.03.2020 dismissed

the said petition. Aggrieved by the said order, the petitioner

herein filed Revision petition vide Crl.R.P.No.29 of 2020 and the

Principal Sessions Judge, Khammam vide order dated

26.06.2020 also dismissed the said Revision petition.

Therefore, the petitioner herein filed the present petition under

Section 482 Cr.P.C.

4. The petitioner herein/A-4 filed the petition under

Section 451 of Cr.P.C seeking release of the subject stock on the

ground that it is the owner of the said stock and that the

respondent did not follow the procedure laid down under the

Act while conducting search, drawing samples and while seizing

the subject stock. The subject stock was kept in Swarna

Bharathi Cold Storage Private Limited, Pallipadu Village,

Konijerla Mandal, Khammam District. It is also contended by

the petitioner that the 1st respondent did not follow the rules

and regulations contemplated under the Act. It has paid

substantial amount towards rent to Accused No.2/cold storage.

Therefore, on the said ground, the petitioner sought release of

the seized stock.

5. The 1st respondent has opposed the said petition on

the ground that it has followed the procedure laid down under

law while conducting search, drawing samples and while seizing

the stock and there is no procedure irregularity committed by it.

He further submits that the said aspect has to be looked into in

the very calendar case itself, but not in the petition filed by the

petitioner seeking release of the seized stock under Section 451

of Cr.P.C. The learned Magistrate has dismissed the said

petition vide order dated 05.03.2020 on the ground that the

seized stock i.e., chilli seeds are not safe for human

consumption as it contains toxins and it is a preserved product.

It also observed that if the seized stock is released, the

petitioner is intending to sell the same for human consumption,

which is unsafe and releasing the stock at this stage is nothing

but playing with the public health. It is further observed by the

learned Magistrate that the petitioner itself admitted that it has

lifted some of the bags from the cold storage after the alleged

seizure. As per the seizure report, though 99,629 bags were

seized, there are only 78,857 bags available in the cold storage.

Learned Magistrate also observed that though the respondents

have admitted the same, this is not the stage to decide the

count of the bags in the absence of the material on record.

6. Learned Principal Sessions Judge, Khammam vide

order dated 26.06.2020 dismissed the Revision petition filed by

the petitioner herein vide Crl.R.P.No.29 of 2020 observing that

the pleadings before the trial Court show that the life of the

seized stock is only 48 months and that there is no material on

record to show when the stock was harvested and processed

before it was kept in the cold storage. It also observed that with

the said admission of the petitioner that after 48 months, the

chilly seeds become unsafe, the 48 months has to be

commenced from the date of harvest and their separation from

the processing method and that when the records are silent

with regard to the date of harvest and process before they were

stored, this Court cannot determine such stock is still safe for

release. Learned Principal Sessions Judge has also referred to

the procedure to be followed for the purpose of conducting

search, drawing samples and seizing of the stock. With the said

discussions and observations, the learned Revision Court held

that in the absence of material with regard to shelf life of the

seized stock, the release of the seized stock results in great

danger to the public health. It has further observed that though

the inspection and seizure of the Food Safety Officer was widely

published in the news papers in the year 2016 and though the

Revision petitioner has good source of information about the

inspection and seizure, it has filed the present petition after a

lapse of four years. Thus, there are lapses on the part of Food

Business Operator in not asking for release of the stock. With

the said findings, learned Revisional Court dismissed the

Revision Petition filed by the petitioner.

7. Learned counsel for the petitioner would submit that

both the learned II Additional Judicial Magistrate of First Class

and learned Principal Sessions Judge, Khammam erred in

dismissing the petition filed by the petitioner seeking release of

the stock. By referring to the notification issued by the Ministry

of Health and Family Welfare (Food Safety and Standards

Authority of India) vide F.No.2-15015/30/2010 he would

submit that there is no 'shelf life' for the red chilli seeds. He

would further submit that since the red chilli seeds are by-

products, there is no 'shelf life' prescribed in the said

regulations. Seized stock was kept in the Swarna Bharathi Cold

Storage Ware House Private Limited, Pallipadu Village, Konijerla

Mandal, Khammam District and the petitioner has paid

Rs.2,50,00,000/- as rent on half yearly basis to Accused No.2

from four years. The petitioner has to pay balance amount of

nearly 25 lakhs towards rent for the year, 2020 by December.

He further submits that if the stock is released subject to any

surety, the losses can be reduced in pandemic period as there is

some demand in the market as of now. According to the

petitioner, the value of the seized stock is about Rs.5 crores.

With the said submissions, learned counsel for the petitioner

sought to release the seized stock by quashing the above said

order passed by the learned Magistrate, confirmed by the

learned Principal Sessions Judge, Khammam.

8. Learned Public Prosecutor representing the 1st

respondent, on instructions, would submit that the products

seized are red chilli seeds which will be used after processing.

Referring to regulation 2.9.3 of the above said Regulations,

learned Public Prosecutor would submit that Chilies and

Capsicum (Lal Mirchi) whole -means the dried ripe fruits or

pods of the Capsicum annum L & Capsicum frutescent L. The

pods shall be free from mould, living and dead insects, insect

fragments, rodent contamination. The product shall be free

from extraneous colouring matter, coating of mineral oil and

other harmful substances. Chilies and Capsicum (Lal Mirchi)

powder means the powder obtained by grinding clean ripe fruits

or pods of Capsicum annum L & Capsicum frutescens L. It

shall be free from mould, living and dead insects, insect

fragments, rodent contamination. The product shall be free

from dirt, extraneous colouring matter, flavouring matter,

mineral oil and other harmful substances. He would further

submit that though in the said regulation, 'shelf life' of the

seized stock is not mentioned, but as per the food analyst, the

sample drawn from the stock contains moulds and salmonella

and salmonella is a pathogen which is injurious to health.

Hence, it is unsafe. By referring to the same, he also submits

that in the event of release of the stock, there is every possibility

of the petitioner selling the said stock which is unsafe for public

health. He further submits that the petitioner is a Chinese

company and admittedly it is Accused No.4 in C.C.No.639 of

2019. With the said submissions, learned Public Prosecutor

sought for dismissal of the present petition.

9. The above said facts would reveal that the stocks

were seized by the 1st respondent, samples were sent to the food

analyst and food analyst submitted his report dated 14.12.2016

opining that the samples contain moulds and salmonella and

salmonella contains pathogen which is injurious to human

health. Hence it is unsafe. Where as the learned counsel for

the petitioner would submit that the stock is kept in the cold

storage in order to extend the life of the stock and the period of

48 months does not apply to the stock stored in the cold

storage. If stored well, the Chill seeds remain viable for years.

With the said submissions, learned counsel for the petitioner

contends that the contentions of the 1st respondent and the

findings of the learned Magistrate and Revision Court that the

shelf life of the seized stock is 48 months is erroneous. The

petitioner in paragraph 10 of the grounds of the criminal

petition has stated that the report of the Food Safety Officer

discloses that the sample do not contain any moulds and

salmonella as was made out in the report furnished by the Food

Analyst. The said contention would reveal that the report of the

Food Safety Officer is contrary to the report submitted by the

Food Analyst, Nacharam, Hyderabad vide report No.621/2016 &

2017 dt.14.12.2016.

10. Whether the 1st respondent-Food Safety Officer has

followed the procedure laid down under the Act and the Rules

and Regulations made therein while conducting search, drawing

samples and seizing stocks are the aspects to be considered by

the trial Court during the trial in the said CC.No.639 of 2019.

They are triable issues. Liberty will be given to the petitioner/A-

4 to take such defence during the trial in the said CC. Neither

the petitioner nor the 1st respondent can take such contentions

in a petition filed by the petitioner under Section 451 Cr.P.C

seeking release of the stocks. But unfortunately, learned

Principal Sessions Judge, Khammam has referred to the

Regulations and provisions of the Act and gave certain findings

in paragraph nos.26, 27, 28, 29, 30 and 31 of the order dated

26.06.2020 in Crl.R.P. No.29 of 2020, holding that notice has

not been issued to petitioner/A-4 and samples were drawn in

the presence of an employee of the cold storage when the

inspection was made. The notice facilitate the owner of the

stock to avail the remedies contemplated to him. It also held

that the report of the Food Analyst was not placed on record. It

further held that it is not possible for the Food Safety Officer to

draw samples from each of the bag when multiple number of

bags were intended to be inspected, the random collection of

samples would suffice the compliance of procedure of collection

of samples. The Revisional Court also observed that the

pleadings before the trial Court show that the life of the stock

was only 48 months. There is no material on record when the

stock is harvested, processed and stored in the cold storage.

While making such observations and findings, the Revisional

Court failed to appreciate that the said findings would certainly

influence the trial Court/II Additional Judicial Magistrate of

First Class, Khammam who is an inferior Officer to Revisional

Court in C.C.No.639 of 2019. Thus, the Revisional Court erred

in giving such findings in a revision petition filed by the

petitioner challenging an order of the II Additional Judicial

Magistrate of First Class, dismissing the petition filed by the

petitioner under Section 451 Cr.P.C seeking release of the

stocks.

11. The Hon'ble Apex Court in Sundebhai Ambhalal

Desai v. State of Gujarat1 and also in several other judgments

and this Court in several judgments categorically held from time

to time that keeping seized property in custody of the police /

(2002) 10 SCC 290

Court will not serve any purpose. The seized property in a

crime has to be returned to the owner of the property on

satisfying his ownership with regard to the said property and on

verification of the documents and also on imposing of certain

conditions.

12. It is specifically contended by the learned counsel for

the petitioner herein that petitioner has already paid an amount

of Rs.2,50,00,000/-as rent on half yearly basis to Accused No.2-

cold storage from the last four years for keeping the stock in the

cold storage and that the petitioner has to pay balance amount

of Rs.25 lakhs towards rent, by December, 2020. According to

him, the cost of the seized stock itself is about Rs.5 crores.

Therefore, the petitioner had already paid 50% of the amount

towards rent in respect of the seized stock. It has filed

documents in proof of the same. In the regulations issued by

the Ministry of Health and Family Welfare, there is no mention

about the 'shelf life' of the red chilli seeds. According to the

learned counsel for the petitioner, since the stock was kept in

the cold storage, it can be used for years together.

13. In view of the said facts and also considering the

principle laid down by the Hon'ble Apex Court in the above said

judgment and also the considering the fact that the petitioner

has already paid an amount of Rs.2,50,00,000/- toward rent to

accused No.2-cold storage, this Court is inclined to grant relief

to the petitioner herein. Admittedly, petitioner is a Chinese

company represented by its Manager Mr.Zheng Yaofang, who is

also a person belonging to China. The learned II Additional

Judicial Magistrate of First Class and learned Principal Sessions

Judge, Khammam would have considered the said aspects.

Therefore, according to this Court, both the Courts have erred

in dismissing the petition filed by the petitioner under Section

451 Cr.P.C. seeking release of the seized stock.

14. In view of the above said facts, both, order dated

05.03.2020 passed by the II Additional Judicial Magistrate of

First Class and order dated 26.06.2020 passed by the learned

Principal Sessions Judge, Khammam confirming the order

dated 05.03.2020 are not in appreciation with the law down by

the Hon'ble Apex Court and this Court. Therefore, the order

dated 05.03.2020 passed in Crl.M.P.No.71 of 2020 in

C.C.No.639 of 2019, passed by the II Additional Judicial

Magistrate of First Class, Khammam and the confirmation order

dated 26.0.2020, passed by the Principal Sessions Judge,

Khammam are quashed.

15. Accordingly, this Criminal Petition is allowed. The

learned II Additional Judicial Magistrate of First Class is

directed to release the seized stock on imposition of certain

conditions to its satisfaction.

Miscellaneous petitions pending, if any, shall stand

disposed of.

__________________ K. LAKSHMAN, J Date: 01.06.2021 dv