The petitioner herein is aggrieved by the impugned Annexure A1 order rendered by the Judicial First Class Magistrate Court, Kunnamkulam on 03/09/2014, whereby the Criminal Miscellaneous Petition No.9358/2014(Annexure A2) filed by him before the said Court, under Section 451 of the Code of Criminal Procedure, seeking release of 47 sachets of ‘Pan Raj' pan masala which are tobacco products, seized by Kunnamkulam Police Station as per search list on 20/03/2014, was dismissed.
2. The said sachets of pan parag were produced before the Court below and the same is received and numbered as P.I.No.152/14 and pursuant to the above said search list (Annexure A3). Crime No.777/2014 of Kunnamkulam Police Station (Annexure A4) was registered under Section 102 of the Code of Criminal Procedure on the allegation that on 20.03.2014 at 7.30 a.m, from the premises in question the Inspector of Police concerned by the search list had seized the above said saches to determine whether the same is tobacco products. According to the petitioner, Annexure A5 certificate of examination issued by the Regional Analytical Laboratory, Department of Health Services, Government Of Kerala would show clearly that the said aritlces as those seized do not contain either tobacco or nicotin and that the same conform to the standards of pan masala under regulation No.2.11.5 of the Food Safety and Standard (Food Product Standard and Food Additive) Regulation 2011. It is the case of the petitioner that Annexure A5 was brought to the notice of the officer making the seizure at the time of search and seizure as well. It is further contended that as Annexure A5 is a document which is issued by a competent agency of the Government of Kerala, the same can be taken note of by this Court as held by the Supreme Court in the cases as in Harshendra Kumar.D. v. Rebatilata Koley etc (2011) 3 SCC 351: 2011 (1) KHC 837 and Minakshi Bala v. Sudhir Kumar and Others (1994)4 SCC 142 etc.
3. Annexure A7 certificate is stated to be issued by the Commercial Taxes Department of Government of Kerala in respect of the product in question, for evidencing that the petitioner is a registered dealer of the goods in question as per the provisions of the Kerala Value Added Tax Act. Annexure A8 is the copy of the Kerala Value Added Tax returns filed for the year 2014, by the petitioner in respect of these goods. It is further urged that as per Annexure A6 judgment dated 3/10/2012 of the Division Bench of this Court in Writ Appeal No.1685/2012, it has been held that only those kinds of pan masalas and gutkhas which contain tobacco are prohibited from the manufacture and sale. That in such circumstances, the seizure of the aforesaid articles are not justified in law and that consequently Annexure A1 order is ultra-vires and illegal. It is submitted that the goods which are seized in the present case are perishable in nature and have very limited shelf life and that it requires proper storage and care, which is not possible in the police station premises. That these goods are kept in the custody of Kunnamkulam polic station without proper storage and care and are exposed to sun and rain and changing weather alike. It is in view of these facts and circumstances that the petitioner had approached the Court below by filing Annexure A2, Criminal Miscellaneous Petition No.s 777/2014 in Crime No.777/2014 of Kunnamkulam police station with the prayer for interim custody of these goods by resort to the provisions under Section 451 of the Code of criminal Procedure. This prayer of the petitioner in Annexure A2 petition was rejected by the Court below as per the impugned Annexure A1 order rendered on 4/09/2014. It is this order that is under challenge in this Crimiminal Miscellaneous Petition filed under Section 482 of the Code of Criminal Procedure with the prayer to set aside the impugned Annexure A1 order and to grant interim custody of the articles seized thereby.
4. Heard Sri.Paul Mathew, Learned Counsel appearing for the petitioner and the Learned Public Prosecutor appearing for the respondent. Sri.Paul Mathew, Learned Counsel for the petitioner would submit that the contemplated offence in this proceedings are those under Section 6 of the Cigerettes and other tobacco products (Prohibition of advertisement and regulation of trade and commerce, production, supply, distribution )Act, 2003 (Central Act 34 of 2003) and Section 118(i) of the Kerala Police Act. Section 6 of the above said Central Act 34 of 2003 provides as follows:
“ Prohibition on sale of cigarettes or tobacco products to a person below the age of 18 years and at a particular area. - No person shall sell, and offer for sale, or permit the sale of, cigerette or any other tobacco product -
(a) to any person who is under the age of 18 years of age and
(b) in an area within a radius of 100 yards of any education institutions.”
Further Section 118(i) of the Kerala Police Act reads as follows:
“penalty for causing violage of public motor or danger-any person who
(i) gives or sells those who are below 18 years any intoxicating substance or to children any articles or substances which are harmful for the physical and mental health or procure the same in a school premises for that purpose, shall on conviction be punishable with imprisonment for a term which may extent to 3 years or with fine not exceeding Rs.10,000/- or with both.“
5. Therefore it is submitted that the sale of the seized goods to persons other than those covered by Section 6 of Central Act 34 of 2003 and the Kerala Police Act, 2011, are permissible and that the petitioner is registered dealer of the goods as evidenced from Annexure A7 and A8, documents which are issued by the Commercial Tax Department of the Government of Kerala. He would further urge that seized goods may be ordered to be released on interim custody basis subject to any strict conditions as may be imposed by this court in the interest of justice as has been done by this Court in various of the situations of this nature.
6. The learned Public Prosecutor has submitted a memo dated 26.11.2014, furnishing instructions on behalf of the Sub Inspector of police, Kunnamkulam police station. It is stated in the said statement of instructions that if tobacco and nicotin is detected during examination it will attract section 6 of the Cigerettes and other tobacco products (Prohibition of advertisement and regulation of trade and commerce, production, supply, distribution )Act, 2003 Act which will attract the penalty under Section 24 of the said Act, (Central Act 34 of 2003) and Section 118(i) of the Kerala Police Act and that the products ceased were found in the premises very near to Vethani High School, Kunnamkulam, the police has reason to believe that the products ceased were mainly stored for selling to the students among Kunnamkulam locality.
7. Further, it is stated that the claim of the petitioner that products seized does not contain nicotin is made by the petitioner on the basis of chemical examination result conducted on some products produced by the petitioner himself and no credibility can be given to this result. And that the police will have to wait for the test results from the Regional Forensic Science Laboratory, Thrissur. Accordingly, it is stated in the said statement that the petition for interim custody of the goods is not to be allowed, at this stage. Sri.Paul Mathew, Learned Counsel for the petitioner further submit that even if the seized articles are found to have nicotin contents, still the petitioner cannot be punished for any of the offences under Section 24 read with Section 6 of the above said Central Act 34 of 2003 and Section 118(i) of the Kerala Police Act, because in this case there was no sale of the articles to any person including a person below the age of 18. It is not necessary for this Court to decide on the question as to whether any offences would lie against the petitioner in the facts and circumstances of this case, because the matter under consideration is only relating to the issue of interim custody of the seized articles.
8. The Apex Court in the case Sunderbhai ambala desai v.
The State of Gujarath reported in 2003(2)KLT 1089(SC) has held in para 7 thereof that the power under Section 451 of Code of Criminal Procedure should be excercised expeditiously and Judiciously as it would serve for varius purposes namely,
1) the owner of the articles would not suffer because of its remaining unused or by its misappropriation;
2) Court of the police would not be required to keep the articles in safe custody,
3) if the proper panchnama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail. Further, it has been held in paragraphs 19 to 21 of the said decision in Sunderbhai Ambala Desai v. The State of Gujarath reported in 2003(2)KLT 1089(SC) and of this Court in the case Panchami v. State of Kerala reported in 2007(3)KHC 359 had directed in Para 5 thereof that while ordering the interim release of the seized vehicle in the question therein, that the petitioner shall furnish cash security deposit of Rs.25,000/- before the learned Magistrate and that she shall execute a bond for an amount equal to the value of the vehicle to be determined by the learned Magistrate with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate.
9. The seized goods in question has to be stored properly and with care. The Counsel for petitioner has also undertaken before this Court that he would not sell or dispose of the ceased goods in any way, for such period as may be fixed by this Court, in case the interim custody of ceased articles are given to him. The petitioner has also undertaken to furnish cash security deposit of the value of the seized articles as may be assessed by the Station House Officer and that he would furnish bond with two solvent sureties for the value of the goods so assessed, undertaking before the Court below that he would return the released articles, if so required by the Court.
In these circumstances, this Criminal M.C is disposed of with the following directions.
The seized articles shall be returned to the petitioner subject to the following conditions:
1) The petitioner shall offer cash security deposit for the value of the seized articles as may be duly assessed by the Sub Inspector of Police, Kunnamkulam.
2) The petitioner shall execute bond for an amount equal to the value of the seized goods with two solvent sureties each for the like sum for the satisfaction of the Jurisdictional Magistrate Concerned.
3) The petitioner shall undertake before the Jurisdictional Magistrate by filing affidavit that he shall return the seized goods if so, required by the Court below.
4) It is open to the Sub Inspector, Kunnamkulam to make an inventory of the seized goods and a Mahazar thereon in case the same has not been prepared so far and also to take necessary photographs and videographs of such seized goods at the cost of the petitioner.
With these observations the Criminal M.C petition stand finally disposed.
Sd/-
ALEXANDER THOMAS JUDGE iap