Final Order 1

Order Details: Copy of Order - 1
Pdf Text: [ 1 of 6 ] C.C. NO.1465/MISC/2025
IN THE COURT OF THE JUDICIAL MAGISTRATE (F.C.)
46TH COURT, MAZGAON, MUMBAI
C.C. NO.1465/MISC/2025
CNR NO.MHMM12-006465-2025
C.R. NO.127 OF 2025 OF MARINE DRIVE POLICE STATION
Premshankar Hiralal Chaurasiya ...Applicant
Vs.
01. The State.
(Through – Marine Drive Police Station)
02. Food Safety Officer,
FDA, Bandra, Mumbai. … Respondents
ORDER BELOW APPLICATION OF REMOVAL OF SEAL
This is an application filed by applicant for the removal of
seal of the premises i.e. Pitch No.19, Jamnalal Bajaj Marg, East Side
Footpath of Nariman Point, Mumbai-400001 (here-in-after referred as
‘said premises’ for sake of brevity).
02. The facts necessary for deciding the application in short are
as follows:
It is the contention of the applicant that, he has employeed
accused Mohd. Akram Khan. The FSO had visited said premises and
sealed the said premises as contraband articles alleged to have been
found stored in the said premises. At the time of visit, his employee
Mohd. Akram Khan was present there. The premises is the only source
of his income. He further undertakes to abide by all the terms and
conditions imposed by the Court while de-sealing the premises. Hence,
it is prayed that, the said premises may be de-sealed.
03. On receiving the application, say of the respondents was called. Food
Safety Officer, R. S. Bodke has filed say and submitted that, Pan Stall,
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Jamnalal Bajaj Marg, Nariman Point, Mumbai was used for the stocking of
prohibited food articles. At the time of visit, on 07.07.2025, Mohd. Akram
Khan was found in possession of prohibited food articles Pan Masala, Scented
Tobacco and Gutkha. Therefore, he is Food Business Operator (hereinafter
referred to as ‘the FBO’). He has submitted various provisions by which said
premises was sealed. He has submitted that, the FBO was having knowledge
of prohibition, stored Pan Masala, Scented Tobacco and Gutkha for sale. If the
said premises is de-sealed and would given in possession of the applicant, the
same may again use for similar purpose. The said premises is required as
evidence for further investigation. Therefore, he objected for de-sealing the
premises.
04. PS. Marine Drive Police Station submitted their no objection to de-seal
the premises. The learned APP has also re-iterated the grounds raised by the
FSO and prayed to reject the application.
05. Perused the application, say, and verified copies of
documents submitted by the applicant. Heard the learned Counsel for
the applicant. It appears that, in view of the Notification
FSSA/Notification/581/7 dated 12.07.2024 of the State Government,
the product like Gutkha, Scented Tobacco and Pan Masala are banned
for transporting, stocking and selling. The FBO in contravention of said
Notification, found stocking the prohibited articles. Therefore, the
offence was registered. Section 3 (zi) of the FSS Act, defines ‘premises’
which includes shop, stall, hotel etc.
06. It is imperative to mention that, the statutory provisions set
out in the Food Safety and Standards Act, 2006 and the rules framed
thereunder empower the Designated Officer to lock and seal the
premises, where the contraband is kept. Rule 2.1.3 (4) of the Food
Safety and Standard Rules, 2011 authorises the FSO to seal the
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premises for the purpose of investigation, after taking a sample of such
adulterant or food for analysis. However, to invoke these powers, the
FSO has to record his reasons in writing. He has to come to a conclusion
that, it is not possible to comply with section 38 (1) (c) of the FSS Act
or proviso to Section 38 (1) of the FSS Act. The Rules also prescribe
non-availability of the FBO as one of the reasons to seal the premises.
07 In the present matter, the reply filed by FSO does not show
that, any order in writing before sealing the premises is passed.
Moreover, the object of sealing the premises is restricted for the purpose
of investigation. Considering the fact that
Pan Masala and
Gutkha are
seized in this matter, the Investigating Officer or FSO are supposed to
dispose the contraband articles as per law.
08. It is to be noted that in the present case, the prohibited
food articles already seized by the FSO. The samples of the same have
been already taken. There is nothing on record to suggest non-
compliance of Sec.38 (1) (c) of the FSS Act or Proviso to section 38 (1).
Moreover, the FBO was available to the FSO at the time of visit. Thus,
the compliance of Section 38 (1) (c) of the FSS Act could have been
done easily. The premises was sealed on 11.07.2025. More than twenty
days have been elapsed from sealing of the said premises. Hence,
sufficient time has been granted to the investigating machinery for
investigation. Thus, there is no reason to seal the premises for uncertain
period. If the applicant shows his interest over the premises, he is
entitled for relief claimed.
09. In this respect, the applicant filed on record affidavit in
support of his application, copy of his Aadhar Card, No Objection of the
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FBO-Mohd. Akram Khan along with verified copy of his Aadhar Card,
Notorised copy of Hawkers Licence and Copy of FIR.
10. The verified copy of Hawkers Licence Shows the address of
the sealed premises and also shows applicant is the licensee. The FBO-
Mohd. Akram Khan has given his ‘No Objection’ by filing affidavit to
remove the seal of the premises in the favour of the applicant.
Admitedly, FBO- Mohd. Akram Khan was in possession of the sealed
premises, who has given No Objection in favour of the applicant. There
is discrepany in the address of premises claimed by the applicant and in the
say filed by the FSO. So far as said discrepancy is concerned, the
applicant has on affidavit claiming de-sealing of the premises.
Furthremore, the FSO while giving the say, has not specifically objected
the application on the ground of discrepancy in the address. Thus, he is
not disputing the premises as claimed by the applicant to be de-sealed.
11. In this context, in the case of
Nagoorkani v/s. The
Commissioner and Others, WP(MD)Nos.30871 and 30873 of 2023,
decided on 02nd January, 2024, the Hon’ble Madras High Court observed
that, the action of the officials was justified in locking and sealing the
petitioner’s premises and godown, but the continued closure may not
really serve any purpose. Although there might be a temporary basis for
closing off property, it cannot be a permanent solution. The sealing had
an impact on the shop owners’ right to livelihood and acknowledged
their fundamental freedom to conduct business under Article 19 (1)(g)
of the Constitution of India and therefore, de-sealing is necessary due to
the disproportionate impact on their rights.
12. Thus, the measure of locking and sealing has a drastic
consequence on the applicant’s livelihood. It is not as if the tenant of the
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applicant was dealing only in prohibited products. Tenant is using the
premises for storing the food articles and it so happened that some
prohibited items were also found in the shop. Further, right to carry on
business is guaranteed under Article 19(1)(g) of the Constitution of
India. Of course, there is no right to trade in banned items. But the FBO
can sell other products in his premises. By sealing the premises, the
FBO’s right to livelihood is affected. This will have a disproportionate
impact on his rights. Even if there is justification in initially sealing the
premise, at some point of time or the other, it has to be de-sealed.
Merely for the reason that banned products were kept for sale, a
premises cannot be closed forever. That is why, the Rules provide for
sealing the premises only for one reason i.e. inability to adhere to the
procedure contemplated in Section 38(1)(c) of the Act or the proviso
thereto. Thus, even the sealing of the said shop was justified, it
eventually needed to be de-sealed. It is not necessary that the said
premises should continue to remain closed as that may not serve any
purpose. In any event, by keeping the shop sealed, the investigation in
this case is not going to be advanced. If the premises is ordered to be
de-sealed, no prejudice would be caused to the investigation.
Considering all these circumstances, the premises can be de-sealed by
imposing certain conditions, which will suffice the purpose, for which
the application is opposed by the respondent and the learned APP.
Therefore, considering all these circumstances, this Court proceeds to
pass following order.
O R D E R
1. The application is allowed.
2. The Food Safety Officer is directed to remove the seal from the
premises Pitch No.19, Jamnalal Bajaj Marg, East Side Footpath of
Nariman Point, Mumbai-400001 (Pan Stall, Jamnalal Bajaj Marg,
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Nariman Point, Mumbai) sealed in C.R. No. 127 OF 2025 registered at
Marine Drive Police Station, within 07 days from the date of this
order.
3. Applicant–Premshankar Hiralal Chaurasiya and FBO- Mohd. Akram
Khan are directed to execute indemnity bond of Rs.5,00,000/-(Rs.
Five Lakhs Only) before the Food Safety Officer and give undertakings
that they shall not use or let the premises for storing the prohibited
food articles and not indulge themselves in similar kind of offence in
the future.
4. The Food Safety Officer is directed to prepare detailed panchnama of
the said sealed premises, while removing the seal and obtain colour
photographs at the cost of the applicant and submit the compliance
report to this Court within 07 days from the date of de-sealing.
( P. P. Deshmukh )
Judicial Magistrate (F.C.),
Dated : 22.08.2025 46th Court, Mazgaon, Mumbai.
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