ORDER
M. Karpagavinayagam, J.
1. The issue in all these revisions is common. Therefore, these are being disposed of in a common order.
2. The petitioners have filed these revisions challenging the orders of the Sub-Divisional Magistrate-cum Sub-Collector, Coonoor, dated 10-10-1995 passed under Section 133(1)(b)(ii) of Cr.P.C.
3. Though several points have been raised by Mr. N.T. Vanamamalai, the learned senior counsel, who submitted on behalf of other counsel also, I am of the view that the impugned orders could be set aside on a sole and lone ground, namely, the ingredients as contained in Section 133 are absent in the impugned orders. The order is as follows :-
Whereas it has been made to appear before me that you are manufacturing contaminated and adulterated tea by adding unwanted foreign materials under the guise of using reconditioned tea at your tea factory named...at... and the same is apparently injurious to the Public health as tea is widely consumed by most of the members of the public. The said illegal adulteration is causing serious diseases like cancer etc. to the members of the public.
The said clandestine and unlawful adulteration is causing annoyance and discomfort to the members of the Nilgiris Agricultural Labourers Welfare Association, Members of Small and Young Tea Growers Association, Members of Consumers Protection Council and Members of General Public of Kotagiri Taluk. Their numerous representations to stop such methodical and merciless misdeed i.e. adulteration against precious human lives to District level, State level officers and Ministers of Central and State are obvious indicaters of their dicomfort and annoyance. Their determined and serious decisions like boycotting panchayal elections, preventing vehicles alleged to curry materials meant for adulteration and entering the factory to seize materials are their frustrated expression to put an end to this cruel money making manufacturing of adulterated tea. Such annoyance categorically indicates that such manufacturing of adulterated tea is so hazardous and injurious to public health.
In the recent past the members of public at Kotagiri prevented a vehicle, seized materials meant for adulteration and destroyed it in the presence of public on the road, and the same has appeared in most of the Tamil and English News papers.
I do hereby direct and require you to stop manufacturing tea by closing tea factory within seven days from the date of the receipt of this order or to appear before the Court of Sub-Divisional Magistrate, Coonoor at 3.00 P.M. on 16-10-85 and show cause why this order should not be made absolute.
Dated this 10th day of October 1995.
4. A plain reading of the impugned order would reveal that the petitioners who are said to have run the factory manufacturing contaminated and adulterated tea which is apparently injurious to the public health, as the said tea is widely consumed by most of the members of the public, have been asked to stop manufacturing tea by closing Tea factory.
5. Though it was argued by Mr. N.T. Vanamamalai, the learned senior counsel, appearing for the petitioners that there is no enquiry by which adequate materials could be collected on taking such evidence before issuing the show cause notice under Section 133(1)(b)(ii), Cr.P.C, it is settled law as pointed out by the Bombay High Court in , Tajmal Punamachand Burad v. State of Maharashtra, before passing a conditional order or show cause notice under this section, the Magistrate is not bound to take evidence, because the proceedings under Section are entirely ex parte.
6. Moreover, the words contained in Section 133 'on taking such evidence (if any) as he thinks fit' would indicate that conducting separate enquiry by taking evidence would not always be a 'must'. As per the section, the learned Magistrate on receiving the information derived from any source, can act under Sub-section (1) and take action under this section. But, the question in the case on hand, whether keeping of any goods in the factory owned by the petitioners is injurious to the health or physical comfort of the community. If this ingredient is available then the Magistrate is well within his powers to order to remove such goods to regulate the keeping thereof in such manner as may be directed.
7. In this context, it would be appropriate to refer three judgments, viz. : AIR1961Bom263 . Murlidhar v. Onkar , Sohan Lal v. Mohan Lal and , Shaukat Hussain v. Sheodayal. The relevant observation in : AIR1961Bom263 is as follows (at page 643 of Cri LJ):-
An order under Section 133 can be justified only if the conduct of the trade is injurious to the health or physical comfort of the community. The eonduct of the trade must be injurious in praesenti. A distant possibility of an injury to the health or physical comfort of the community would not justify an order under this section. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or the occupation is conducted.
8. In it has been held thus (at page 1355) :-
This section would show that it applies only where the unlawful obstruction or nuisance is actually in existence. It does not justify any action being taken in regard to anticipated obstruction or nuisance. The only exception when action can be taken under this section in anticipation of the actual nuisance is when there is construction of any building or the disposal of a substance which is likely to occasion a conflagration or explosion. But there is no such thing pleaded in the application. Therefore, keeping in view the provisions of Section 133 of the Code it would follow that the apprehended nuisance, as in the present ease, was not a ground for giving jurisdiction to the Magistrate.
9. In it has been observed as follows (at page 1321 of Cri LJ) :-
At the most, this is a report about potential nuisances, that is what may become a nuisance in the future. It is well settled that Section 133 applies the future. only to exisiting and not potential, nuisances.
10. In the light of these observations, if we look at the impugned order, it is clear that it cannot be said that there is an imminent danger to the health or physical comfort of the community in the locality at present. The act of the petitioners must be injurious in praesenti. The mere manufacturing of tea powder suspected to be adulterated would not be construed to be an act of causing imminent injury to the health or physical comfort of the community.
11. The records sent by the lower Court would show that prior to the passine of the order there was an agitation by the public against the owners of the factory who have indulged in the preparation of adulterated tea. However, the grievance of the public could not be remedied by invoking this section in the absence of the imminent injury to the health of the public.
12. The authorities concerned could very well inspect the factory, take the sample and scize the stock and send for the analysis and if after analysis it is found to be adulterated, they could very well approach the Court for prosecution either under the Prevention of Food Adulteration Act or any order prohibiting the manufacturing of adulterated food under the Essential Commodities Act.
13. In view of what is stated above, I find that the impugned orders suffer with infirmity and the same are liable to be set aside and accordingly they are set aside.
14. In the result, the revision petitions are allowed. Consequently, no separate orders are necessary in connected Crl. M.Ps.
15. It is open to the authorities concerned, if such illegal things continue, could even now take appropriate action by invoking the relevant provisions of the Food Adulteration Act and the Essential Commodities Act, as referred to above. This order would not stand in their way of taking other appropriate action in order to redress the grievance of the public.