In the similar situation, the Hon'ble apex court in the case of Nevada Properties Private Limited Vs. State of Maharashtra, AIR 2019 SC 4554, in para Nos. 20 and 21 held as under:-
" 20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc., relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word seize would include such action of attachmetn and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossesses a person in occupation and take possession of an immovable proerty in order to seize it. In absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hodl that this power should be inferred and is implicit in the power to the effect seizure..................................
21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Sectuion 102 of the code to seize any property, which may be found under circumtances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."
9. In the context of the law laiddown by the Hon'ble apex Court in the case of Nevada Properties Private Limited (supra), this Court is of the view that power of seizure and forefeiture of immovable property has given to the courts and not to the prosecution authority and if the police officer or other officer has given power to seized the immovable property, it may be chaotic the circumstances.
10. Looking to the aforesaid facts and circumstances of the case, in the considered opinion of this Court, the trial court as well as revisional court have committed error in rejecting the application filed by the applicant under Section 451 of the Cr.P.C., seeking the direction to the respondents to unlock and open the seized business premises of the applicant without considering the fact that the Food Safety Officer after seizure of food articles from the business premises of the applicant, has already send the one samples of said food articles to State Food Laboratory, Bhopal and remaining food articles were destroyed by him, therefore, no purpose will be served in locking the said business premises of the applicant.
Madhya Pradesh High Court
M.Cr.C.No.51929/2019
The applicant has preferred the present petition under Section 482 of the Cr.P.C. against order dated 04/12/2019 passed by the Second Additional Sessions Judge, Manasa, District- Neemuch in Criminal Revision No. 96/2019, whereby the order dated 22/11/2019 passed by Judicial Magistrate First Class, Manasa, has been affirmed, by which the application filed by the applicant under Section 451 of the Cr.P.C. has been rejected.
2. Briefly stated facts of the case are that the applicant is involved in the business of milk and milk products in the name and style of "Mahavir Doodh Wala". On 23/10/2019, Mr. Sanjeev Kumar Mishra, Food Safety Officer, District-Neemuch collected samples of mixed milk of Cow and Buffalo, Mawa, Paneer, Creat, Curd and Ghee from the dairy of the applicant, situated at Rampura and sent all the samples to State Food Laboratory, Bhopal for analysis. He also destroyed stock of above milk products after seizure. On 24/10/2019, five samples of mixed milk alongwith other material i.e. Skimmed milk powder, detergent powder, maltose and refined oil etc. were collected by Sanjeev Kumar Mishra, FSO, Neemuch from the Dairy plant of the applicant, situated at village Dudhlai and he sent all the samples to State Food Laboratroy, Bhopal for analysis. The food articles and other material available at the dairy plant worth of Rs.3,36,000/- were also seized and destroyed by the FSO, Neemuch and he also locked both the premises of the applicant. On 1/11/2019, FSO Mr. Mishra also submitted a written complaint at Police-Station-Rampura, on the basis of which FIR bearing Crime No. 225/2019 was registered at Police-Station-Rampura for commission of offence punishable under Sections 420, 272 and 273 of the IPC against the applicant.
3. The applicant moved an application under Section 451 of the Cr.P.C. before the court of Judicial Magistrate First Class, Manasa, with a request to direct the respondents to open the seized premises of the applicant, however, the said application was dimissed by the trial Court, vide order dated 22/11/2019. Against the aforesaid order, the applicant has preferred Criminal Revision No. 96/2019 before the Sessions Court, which also got dismissed by the revisional Court, vide order dated 04/12/2019. Being dissatisfied with the aforesaid orders, the present petition under Section 482 of the Cr.P.C. has been filed before this Court.
4. Learned counsel for the applicant has submitted that Section 38 of the Food Safety and Standards Act, empower the Food Safety Officer (FSO) to take samples of the food articles in the manner and procedure as prescribed under Rules 2.4.1 of the Rules for analysis and to inspect places, where food articles are manufactured, stored or sale and even for seizure of food articles and to destroy perishable food articles. But neither FSS Act, 2006 nor the Cr.P.C. authorize or empower the FSO/Police to lock and seize any immovable property including business premises. However, without considering the aforesaid legal position, learned courts' below dismissed the application filed by the applicant under Section 451 of the Cr.P.C. for directing the respondents to unlock and open the seized business premises of the applicant. Under these circumstances, learned counsel for the applicant prays for setting aside of the impugned orders and directing the respondents to unlock and open the seized business premises of the applicant.
5. On the other hand, learned Public Prosecutor for the respondent/State opposed the petition by contending that under the provision of FSS Act, the Food Saftey Officer is having power under Rule 2.1.3 of the FSS Rules, 2011 to locked and seized any immovable property of the person, who was found involved in manufacture or sale of the adulterated food products. Therefore, the courts' below have not committed any error in rejecting the application filed by the applicant under Section 451 of the Cr.P.C. Under these circumstances, he prays for dimissal of the petition.
6. Having heard, learned counsel for the parties and perused the records.
7. According to the rule 2.1.3 of the FSS Rules, 2011, the Food Safety Officer is empowered under Section 38 of the Act, where he 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 Saftey Officer may seize the adulterant or food, which is unsafe or sub-standard or mis-branded or containing extreneous matter, may seal the premises for investigation after taking a sample of such adulterant or food for analysis. From the aforesaid provision, it is clear that the Food Safety Officer is empowered to seal the premises for investigation, when the food business operator is not available; whereas, in the present case, all the panchanamas shows that at the time of inspection of Food Safety Officer, the applicant was present in the premises and the samples of food articles were lifted in his presence and his signatures were also sought in all the Panchanamas, therefore, it is not a case, where the Food Safety Officer has power to seized the business premises of the applicant.
8. In the similar situation, the Hon'ble apex court in the case of Nevada Properties Private Limited Vs. State of Maharashtra, AIR 2019 SC 4554, in para Nos. 20 and 21 held as under:-
" 20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc., relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word seize would include such action of attachmetn and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossesses a person in occupation and take possession of an immovable proerty in order to seize it. In absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hodl that this power should be inferred and is implicit in the power to the effect seizure..................................
21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Sectuion 102 of the code to seize any property, which may be found under circumtances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."
9. In the context of the law laiddown by the Hon'ble apex Court in the case of Nevada Properties Private Limited (supra), this Court is of the view that power of seizure and forefeiture of immovable property has given to the courts and not to the prosecution authority and if the police officer or other officer has given power to seized the immovable property, it may be chaotic the circumstances.
10. Looking to the aforesaid facts and circumstances of the case, in the considered opinion of this Court, the trial court as well as revisional court have committed error in rejecting the application filed by the applicant under Section 451 of the Cr.P.C., seeking the direction to the respondents to unlock and open the seized business premises of the applicant without considering the fact that the Food Safety Officer after seizure of food articles from the business premises of the applicant, has already send the one samples of said food articles to State Food Laboratory, Bhopal and remaining food articles were destroyed by him, therefore, no purpose will be served in locking the said business premises of the applicant.
11. In view of the aforegoing discussion, by setting aside of the impugned orders, the present petition is allowed and the respondents are directed to unlock and open the seized business premises of the applicant immediately after receipt of the certified copy of this order.
12. Let a copy of this order be sent to the concerned courts for information and necessary compliance.
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