JUDGMENT :

(Prayer: Criminal Revision filed under Section 397 read with Section 401 Cr.P.C. seeking to call for the records in Crl.M.P. No.3206 of 2019 on the file of the Judicial Magistrate Court No.II, Poonamallee, set aside the order dated 17.12.2019 and direct the second respondent to hand over the godown to the petitioner by shifting the contraband involved.)

1. On a complaint lodged by one Shiva, Sub Inspector of Police, the first respondent police searched the godown at Door No.64, Steel City, opposite R.R.B. Energy Bye-pass Road, Poonamallee on 09.11.2018 and seized about 5 tonnes of gutkha and registered a case in Cr. No.1287 of 2018 under Sections 7 and 9 (2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for brevity “the COTPA”) and Section 328 IPC.

2. A reading of the FIR shows that the police party led by Shiva, Sub Inspector of Police, found Jebastin (A.1), Senthil (A.2), Isaac Solomon (A.3) and Kumar (A.4) loading gunny bags of gutkha from the godown into three vehicles. The police arrested them and during the course of interrogation, they came to know that Muthulingam (A.5) and his brother Kanagalingam (A.6) had taken the godown on rent from Sundar (A.7) and had stored the gutkha in the godown for the purpose of distribution. The police arrested Jebastin (A.1), Senthil (A.2), Isaac Solomon (A.3) and Kumar (A.4), sealed the premises and alerted the jurisdictional Food Safety Officer, who came to the godown on 10.11.2018 and drew samples for taking criminal action, if required, under the Food Safety and Standards Act, 2006 (for brevity “the FSSA”). After lifting samples, the Food Safety Officer made an order to Muthulingam (Accused/Food Business Operator) on the same day under Section 38(1)(b) & (c) of the FSSA read with Rule 2.3.2 of the Food Safety and Standards Rules, 2011 (for brevity “the FSS Rules”), in Form No.III, to keep the contraband in safe custody. Thereafter, the Food Safety officials sealed the godown and admittedly, they are having the keys of the godown till date.

3. The samples lifted by the Food Safety officials were sent for analysis to the Government Food Safety Laboratory and the reports dated 29.11.2018 revealed that the products contained nicotine and hence, were “unsafe and prohibited”. Therefore, the Food Safety officials preferred three complaints on 27.05.2019 in S.T.C. Nos.119, 120 and 123 of 2019 before the Judicial Magistrate No.II, Poonamallee, for the offences under Sections 51, 52(1), 58, 59(1) and 63 of the FSSA, against Muthulingam (A.5 in the police FIR) alone on the ground that he was the “Food Business Operator” as defined in Section 3(1)(o) of the FSSA. Muthulingam appeared before the Magistrate on 23.09.2019 and pleaded guilty and is awaiting to be sentenced.

4. While so, the petitioner, who is the owner of the godown, filed an application on 10.08.2019 in Crl.M.P. No.3206 of 2019 under Sections 451 and 457 Cr.P.C. in the Court of the Judicial Magistrate No.II, Poonamallee, seeking custody of her godown. In that petition, she had made the police, the Food Safety Officer and Muthulingam as respondents. The police did not file any counter affidavit. Mr. R. Velavan, Food Safety Officer, filed a counter affidavit and Muthulingam also filed a counter affidavit, wherein, he admitted that the petitioner is his landlord and that he has no objection in the key of the godown being handed over to her.

5. It is seen from the tenancy agreement that Muthulingam had taken the godown on rent from the petitioner for running an agency in the name of “M/s. Lingam Agencies” on 02.07.2018 for a period of 11 months, had paid a sum of Rs.3 lakhs as advance and had agreed to pay Rs,40,000/- per month as rent. The police and the Food Safety Officer were aware of this, as could be seen from the averments in the FIR itself, wherein, it is stated that Muthulingam and his brother Kanagalingam ha