Allowed

Gopal Sabat v. The State of Andhra Pradesh

Andhra Pradesh HC2 Aug 2021CRLP/4312/2021

Case brief

AI extract

What is this about?

The Court quashed the criminal proceedings under IPC and COTP Act regarding possession of tobacco products. It held that tobacco is not food/drink and specific COTP Acts were not violated. The petitioners were granted return of seized tobacco products.

What did the court decide?

The criminal proceedings were quashed and the Station House Officer was directed to release the seized tobacco products.

Gopal Sabat Vs The State of… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2021)

¶1

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

¶2

CRIMINAL PETITION No.4312 OF 2021

¶3

ORDER:-

¶4

This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the proceedings in FIR No.280 of 2021 and consequently to direct the Station House Officer, II Town Police Station, Visakhapatnam City to return the tobacco products which are seized in connection with the said crime.

¶5

The above said crime has been registered against the petitioners under Sections 188, 269 and 273 of the Indian Penal Code, 1860 and Section 6(A) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short ‘COPT Act’) on the ground that when search was conducted in the go-down the Police found different types of tobacco products which were stored for doing business.

¶6

Heard Sri R.Siva Sai Swarup, learned counsel for the petitioners and learned Assistant Public Prosecutor for the respondent-state.

¶7

Learned counsel for the petitioners submits that none of the offences as alleged are attracted to the present case and for registering a crime under Section 188 the procedure laid under Section 195 Cr.P.C. has to be followed which indicates that a complaint has to be lodged by a competent officer before the Magistrate but not by the Police. He further submits that none of the alleged sections of I.P.C. are attracted to the present case as

¶8

¶9

they are related to food and drink whereas tobacco does not fall under the category of food as held by this Court in Crl.P.No.5421 of 2019 and batch. He further submits that Section 13 of COTP Act says that if any police officer, not below the rank of S.I. or any officer authorized by the central government or by the state government has any reason to believe that there is any contravention in respect of a) any package or cigarettes or any other tobacco products or b) any advertisement of cigarettes or any other tobacco products are contravened. The seizure of tobacco products in this case is against the statute. Hence, he requests to grant the relief as prayed for.

¶10

Learned Public Prosecutor has not disputed the above submissions.

¶11

It is not out of place to mention that Section 269 of IPC speaks about negligent act likely to spread infection of disease dangerous to life and Section 273 of IPC speaks about sale of Noxious Food or Drink. Therefore, possession, sale, purchase and transport of banned gutka and tobacco products will not attract the offences under the provisions of IPC as they do not fall under the definition of food and also do not spread any disease. Moreover, the police have no power to register the offences under above sections except the designated officers like Food Safety Officer. In similar circumstances, this Court passed orders in Criminal Petition No.3731 of 2018 and batch dated 27.08.2018 and Criminal Petition No.5421 of 2019 and batch dated 18.12.2019, allowing several criminal petitions by quashing respective F.I.Rs. This Court has further made it clear that the

¶12

¶13

provisions of COTP Act can only be pressed into service only when there is violation of Sections 4, 5, 6, 7 and 10 of COTP Act. As it is not the case of the prosecution that there is any such violation, this Court deems it a fit case to quash the proceedings.

¶14

It is also settled law that if the property which is seized from any person in connection with any crime on the ground of illegal possession or transportation of any drugs/goods and if such offence does not constitute any offence, seized property has to be returned. In this case since the proceedings in FIR are liable to be quashed the petitioners are entitled for return of the property seized in connection with the said FIR.

¶15

Accordingly, the Criminal Petition is allowed and the proceedings in Crime No.280 of 2021 of II Town Police Station, Visakhapatnam, are hereby quashed against the petitioners. The Station House Officer, II Town Police Station, Visakhapatnam City is directed to release the tobacco products seized in connection with F.I.R.No.280 of 2021.

¶16

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

¶17

____________________________________ JUSTICE LALITHA KANNEGANTI

¶18

Date: 02.08.2021 IKN

¶19

¶20

THE HON’BLE SMT JUSTICE LALITHA KANNEGANTI

¶21

(Allowed)

¶22