Section 5. Prohibition of advertisement of cigarettes and other tobacco products
(1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.
(2) No person, for any direct or indirect pecuniary benefit, shall--
(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or
(b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or
(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:
Provided that this sub-section shall not apply in relation to--
(a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;
(b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of--
(a) cigarettes or any other tobacco product; or
(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.
How courts have applied section 5
- Section 5(1) requires proof that the accused was engaged in production, supply, or distribution of tobacco products or controlled the medium; a film actor whose likeness depicts smoking without a contractual link to promote tobacco does not attract the offence.1
- Tobacco products are not 'food' or 'drink' under the FSS Act, so IPC sections like 272 or 273 premised on food or drink do not apply, and police lack jurisdiction under the FSS Act.2,3,4
- COTPA regulates rather than bans tobacco trade; prosecution lies only for specific violations such as advertising bans or sales to minors.5
- The State Food Authority lacks power to ban tobacco products like gutka or pan masala because they are regulated under COTPA, a special Act.6
- Proceedings were quashed where the charge-sheet disclosed no act meeting the essentials of Section 5, including where the case was squarely covered by an earlier order in identical matters.7,8,9,10
- A police officer cannot investigate a non-cognizable offence without a specific reasoned order from a Magistrate under Section 155(2); a mere endorsement is insufficient.11
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The judgements in this sample are mostly quashing or bail orders in criminal proceedings, where the substantive question was whether the acts alleged in the charge-sheet meet the essential ingredients of Section 5 and related provisions of the 2003 Act. In several, proceedings were quashed because no act satisfying the essentials of Section 5 was disclosed, because the mere depiction of smoking actors in a film without a contractual link to promote tobacco did not attract the offence, or because the case was covered by an earlier order in identical matters arising from the same FIR. The recurring thread is that courts scrutinise whether the accused were engaged in tobacco production, supply, or distribution, or controlled the medium for advertising, as Section 5(1) requires, finding the offence absent where those links are missing.7,1,8,9,10
Where prosecutions were quashed for lack of ingredients, courts often drew on the distinction between tobacco products and 'food' under the Food Safety and Standards Act, 2006. Several judgements held that chewing tobacco, gutka, and pan masala are not 'food' or 'drink', so the FSS Act and IPC sections like 272 or 273 premised on food or drink do not apply. The same line of orders held that police lack jurisdiction to investigate under the FSS Act, that the State Food Authority lacks power to ban tobacco products as they are regulated by the COTPA, and that COTPA regulates rather than bans tobacco trade, so prosecution lies only for specific violations such as advertising bans or sales to minors. In contrast, some matters went the other way: proceedings were not quashed and bail was granted on conditions where the alleged acts were not directly met, or the petitioner withdrew an anticipatory bail plea.2,3,4,5,6,12,13,14
A separate group of judgements concerns regulatory duties rather than criminal liability. One held that police have power to supervise, inspect, and seize hookah centres run in violation of the COTPA, but that restaurants may operate such centres on obtaining permissions from the Municipal Corporation and Police Commissioner, with a strict separate smoking zone. Another, on film advertisements, directed the State Level Monitoring Committee and Director of Public Health to expeditiously initiate and continue prosecution against a film producer for violating mandatory disclaimer and advertisement provisions, holding that non-prosecution infringes the fundamental right to life under Article 21; a similar direction was issued in another film-promotion matter. One judgement quashed criminal proceedings after the State banned hookah and the petitioner undertook not to sell it, saying continuation was not warranted.15,16,17,18
A procedural point appears in one judgement: where the offence is non-cognizable, police cannot investigate without a specific reasoned order from a Magistrate under Section 155(2) CrPC, and a mere endorsement of 'permitted' is insufficient; failure to obtain proper permission vitiates the investigation and any conviction.11
By court
Outcomes
Judgements applying section 5
The High Court at Bengaluru allowed a criminal petition under Sections 482 Cr.P.C. and 528 BNSS to quash proceedings in C.C. No. 3359/2023 pending before the Additional Civil Judge and JMFC, Devanahalli. The offences allegedly involved sections of the COTPA, IPC, and Karnataka Police Act.
AllowedOpenPetition to quash proceedings against a pan shop seller charged with selling prohibited cigarettes; the State did not oppose, and following a prior coordinate-bench order quashing similar cases, the High Court quashed proceedings and directed return of seized property.
DisposedOpenQuash petition under Section 528 BNSS allowed; proceedings in C.C. No.3470 of 2025 (FIR No.77 of 2017, P.S. Chandrayangutta) against accused No.6, Sajid Ali Khan, for offences under Section 420 IPC and Sections 5, 6, 7 r/w 20(2), 22 and 24(1) COTPA quashed following Crl.P.No.5577 of 2023 dated 08.08.2024 (COTPA…
AllowedOpenA hookah pot is an instrument used in consumption of tobacco but not per se a tobacco product; no provision bans its sale. The charge-sheet disclosed no act meeting the essentials of Sections 5, 6, 7, 20(2), 22 or 24(1) of the COTPA Act, nor any cheating or dishonest inducement attracting Section 420 IPC.
AllowedOpenThis common order allowed a large batch of Criminal Petitions challenging the quashing of criminal proceedings against accused for alleged transportation, possession, and sale of banned tobacco products.
AllowedOpenThe Madurai Bench of Madras High Court granted anticipatory bail to the petitioner in a case involving the possession of banned tobacco products. The court imposed conditions including cooperation with investigation, daily police appearance, and execution of a bond.
DisposedOpen
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The court granted bail to the petitioner accused under IPC Sections 273 and 328 and the Cigarettes and other Tobacco Products Act. Bail was granted subject to executing a bond and paying compensation to a local school.
DisposedOpenPetition under Sections 438 and 482 CrPC sought anticipatory bail in a case involving the Poisons Act, tobacco products law, IPC and excise provisions. Counsel withdrew the petition with liberty to surrender; the court permitted withdrawal and requested the trial court to decide any bail application on the same day.
DismissedOpenPetitioners sought quashing of a charge-sheet for offences under the IPC and COTPA concerning banned tobacco products. Following the Court's earlier common order holding chewing tobacco is not food and such prosecutions untenable, the High Court allowed the petition and quashed the proceedings.
AllowedOpenThe High Court of Karnataka allowed a criminal revision petition, setting aside convictions for offences under Section 273 IPC and the COTPA. The court held the investigation was invalid because the police failed to obtain a proper judicial order permitting investigation of a non-cognizable offence under Section 155…
AllowedOpenSingle Judge quashed FIR against petitioners for alleged storage of tobacco under IPC Sections 269, 272, 273 and COTA. Ruled that tobacco is not 'food' and police lack jurisdiction under Food Safety Act, relying on earlier precedents.
AllowedOpenIn this batch of writ petitions, the High Court held that the State Government lacked jurisdiction to ban Gutka/Pan Masala containing tobacco under the Food Safety and Standard Act, 2006.
AllowedOpen
Petitioners sought quashing of proceedings in a gutka/tobacco seizure case and return of seized property. The matter being covered by an earlier order of the same Court, the petition was allowed on the same terms: proceedings quashed and seized property ordered returned.
AllowedOpenA common order disposing of over 50 writ petitions challenging police interference with hookah centers. The Court held that police have the power to inspect premises under COTP Act and direct restaurants to obtain specific permissions for smoking areas while ensuring public health standards.
DisposedOpenThe High Court quashed criminal proceedings under IPC and FSS Act against accused involved in sale of tobacco, Gutka, and Pan Masala. The court held tobacco is not 'food' under FSS Act and COTPA Act does not ban trade, only regulates it, barring prosecution except for advertising violations or sales to minors.
AllowedOpenThe Court quashed criminal complaints filed under Section 5 of the COTPA against film executives and actors. It held that displaying posters with smoking actors does not violate the Act as the accused were not engaged in tobacco production or promotion, and strictly construed the penal provisions, dismissing the…
AllowedOpenThis court issued a writ of mandamus directing the State Level Monitoring Committee and the Public Health Department to initiate and continue prosecution proceedings against the film producer Vijay Antony Corporation for alleged violations of the Cigarettes and Other Tobacco Products Act regarding the film 'India…
AllowedOpenThe High Court allowed a writ petition seeking prosecution of a production company for violating COTPA by promoting tobacco use in a film. The Court directed the State Level Committee and Health Department to initiate and continue prosecution proceedings expeditiously and to take action against the CBFC for…
AllowedOpen
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Criminal Petition filed by accused regarding FIR registration for transporting tobacco products. Relying on prior findings that tobacco is not food and police lacks jurisdiction under Food Safety Act, petition allowed.
AllowedOpenSingle Judge order allowing Criminal Petition to quash criminal charges against petitioner for storing tobacco. Court relied on prior findings that tobacco is not 'food' and police lack jurisdiction under FSS Act, ruling that storage does not constitute an offence.
AllowedOpenPetitions under Section 482 CrPC to quash FIRs and charge sheets arising from the transport, storage and sale of banned tobacco products such as gutkha and khaini.
DisposedOpenBatch of petitions under Section 482 Cr.P.C. to quash proceedings alleging transportation, storage, sale and purchase of banned tobacco products such as gutka, khaini, zarda and pan masala.
DisposedOpen