IMPORTANT POINT
The central legal point established in the judgment is that the sealing of the shop under the Food Safety and Standards Act, 2006 falls under the authority of the Commissioner, as per Section 34, and not the Designated Officer as per Section 36.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, to direct the 2nd respondent to de-seal the petitioner's petty shop at Pallivasal Street, Keeranur, Kulathur Taluk, Pudukkottai District.)

1. The petitioner is running a petty shop at Pallivasal Street, Keeranur. On 05.02.2024, at about 3.15 p.m. the 3rd respondent Police visited the petitioner's shop to conduct a search and seized the tobacco product, for which, a case in Crime No.30 of 2024 has been registered as against the petitioner for the offence punishable under Section 328 of IPC and Sections 6(a) and 24(1) of the Cigarettes and other Tobacco Products Act, 2003 and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. After the registration of the said case, the 2nd respondent, on 07.02.2024, sealed the petitioner's petty shop. Therefore, he submitted a representation dated 22.02.2024 to the respondents 2 and 3 requesting them to de-seal his petty shop, however, there was no response. Hence, the petitioner has filed this writ petition for a Mandamus, directing the 2nd respondent to de-seal his petty shop at Pallivasal Street, Keeranur, Kulathur Taluk, Pudukkottai District.

2. The learned counsel appearing for the petitioner submits that the petitioner has now realized his mistake and has also come forward with an affidavit of undertaking that hereafter he will not sell any tobacco products and other banned products in his petty shop. The learned counsel further submits that no prior notice has been issued before sealing the petitioner's shop. He further submits that the second respondent, who has sealed the petitioner's petty shop is not having any authority to seal the premises, as per section 34 of the Food Safety and Standards Act, 2006 and the authority is the first respondent/the Commissioner, Tamil Nadu Food Safety and Drug Administration Department, Chennai.

3. The learned Special Government Pleader appearing for the respondents 1 and 2 submits that the Designated officer is having a power to seal the shop under Section 36 of the Food Safety and Standards Act, 2006. Accordingly, action has been taken as per Section 36 of the Food Safety and Standards Act, 2006 and not under Section 34 of the Food Safety and Standards Act, 2006 as claimed by the petitioner.

4. This Court considered the rival submissions made and also perused the materials placed on record.

5. The petitioner is running a petty shop at Pallivasal Street, Keeranur, Kulathur Taluk, Pudukkottai District and on 07.02.2024, his shop was also sealed by the second respondent. According to the learned counsel for the petitioner, the Commissioner, Tamil Nadu Food Safety and Drug Administration Department alone is having a power to seal the shop. However, in this case, the second respondent/the Food Safety Officer, Pudukkottai District has sealed the petitioner's shop. On the other hand, the learned Additional Government Pleader has taken a stand that action has been taken as per Section 36 of the Food Safety and Standards Act, 2006 and not under Section 34 of the Food Safety and Standards Act, 2006. For better appreciation, the relevant Sections of the Act are extracted as under:-

34. Emergency prohibition notices and orders.

(1) If the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an ‘emergency prohibition notice”), apply to the Commissioner of Food Safety for imposing the prohibition.

(2) If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition.

(3) The Designated Officer shall not apply for an emergency prohibition order unless, at least one day before the date of the application, he has served notice on the food