Allowed

Garisapati Ramanaiah v. the State of Andhra Pradesh

Andhra Pradesh HC22 Aug 2023CRLP/3977/2023

Case brief

AI extract

What is this about?

The 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.

What did the court decide?

Criminal proceedings in C.C. No.53/2019 quashed against petitioners insofar as offences under IPC and FSS Act; proceedings under COTPA Act preserved if specific conditions found.

Garisapati Ramanaiah Vs the State of Andhra Pradesh — Quashing and FIR | Andhra Pradesh HC (2023)

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IN THE HIGH^{COURT OF ANDHRA PRADESH :: AMARAVATI}

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TUESDAY ,THE TWENTY SECOND^{DAY OF AUGUST} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE K^{SREENIVASA REDDY}

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CRIMINAL PETITION NO: 3977^{OF 2023}

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Between:

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Garisapati Ramanaiah, S/o.Gopaiah, Aged about^{52years,R/o.BusStand} Center, A.S.Peta Village and Mandal SPSR Nellore^District.

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Shaik Showkath Ali, S/o.Ghouse Basha,^{Agedabout42years,R/o.Darga} Center, A.S.Peta Village and Mandal, SPSR Nellore District.

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Syed Khaja Masthan, S/o.Kalesha, Aged about 23 years,^{R/o.DargaCenter,} A.S.Peta Village and Mandal, SPSR Nellore District.

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...Petitioners/Accused Nos.2 to 4

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AND

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The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Andhra Pradesh, At Amaravathi.

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...Respondent/Complainant

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Petition under Section 482 of Cr.P.0 praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings in C.C.No.53/2019 on the file of the Judicial Magistrate of First Class at Atmakur.

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I.A. NO: 2 OF 2023

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Petition under Section 482 of Cr.P.0 praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant stay of all further proceedings including appearance of the Petitioners in C.C.No.53/2019 on the file of the Judicial Magistrate of First Class at Atmakur pending disposal of the above Crl.P.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri P Nagendra Reddy, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.1.

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The Court made the following: ORDER

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HON'BLE SRI JUSTICE K. SREENIVASA REDDY

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Criminal Petition No.3977 of 2023

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Order:

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This Criminal Petition, under Section 482 Cr.P.C., has been filed on behalf of the Petitioners herein/A2 to A4, to quash the proceedings in C.C.No.53 of 2019 on the file of the learned Judicial Magistrate of First Class, Atmakur.

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A charge sheet has been filed for the offences punishable under Sections 353, 272 and 273 read with 34 IPC and Section 59 (IV) of the Food Safety and Standards Act, 2006 (for short 'the FSS Act').

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When the matter is taken up for hearing, it is submitted by the learned counsel for the petitioners and acceded to, by the learned Assistant Public Prosecutor that the subject matter of this Criminal Petition is squarely covered by the common order passed by this Court in Criminal Petition No.5421 of 2019 and batch, dated 18.12.2019, wherein this Court held thus.

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"But, as far as the present cases are concerned, this Court by exercising the power under Section 482 Cr.P.0 and following the mandate of the Hon'ble Supreme Court of India in State of Haryana v. Bhajan Lal, (1992 Supp (1) SCC 335), and the judgment of the High Court of Allahabad in M/s. Pepsico India Holdings (Pvt) Ltd., and another v. State of UP, (2011 (2) Crimes 250), is constrained to hold that all

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the FIRs/cases that^{havebeenregisteredunderthe} provisions of the IPC, FSS Act and the^COTPAActare quashed, leaving it open to them, if they^sodesireto pursue the prosecution in respect of the^{offencesunder} the other enactments, if any. The^{offencesunderthe} NDPS Act can be pursued. The offences under the COTPA Act, can only be launched if the police find that the sections 5, 6, 7 and 10 are not complied with. Except on these very limited grounds genuine/legitimate traders cannot be prosecuted."

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Hence, following the said order passed by this Court in Criminal Petition No.5421 of 2019 and batch, dated 18.12.2019, and for the reasons mentioned therein, this Criminal Petition is allowed quashing the proceedings in C.C.No.53 of 2019 on the file of the learned Judicial Magistrate of First Class, Atmakur, against the petitioners herein/A2 to A4 insofar as the offences punishable under the provisions of the IPC and FSS Act.

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As a sequel thereto, the miscellaneous applications, if any, pending in this Criminal Petition shall stand closed.

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SDI- U SRIDEVI ASSISTANT REGISTRAR

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//TRUE COPY//

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%/ SEGTION' OFFICER

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To,

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The Judicial Magistrate of First Class, Atmakur.

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The Station House Officer, A.S.Peta Police Station, Atmakur.

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Two CCs to the Public Prosecutor, High Court of Andhra Pradesh at Amaravathi [OUT]

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One CC to Sri P Nagendra Reddy, Advocate [OPUC]

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Three CD Copies

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sree i ~~

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(*Attach order in Crl.P.No.5421 of 2019 & Batch dated 18.12.2019)

HIGH COURT

DATED:22/08/2023

ORDER

CRLP.No.3977 of 2023

02 NOV 2023
Cu~rert Section

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ALLOWING THE CRIMINAL PETITION

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*HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

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Cr1.P.Nos. 5421, 5537, 5540, 5568, 5620 , 5622 , 5624, 5638, 5822, 6046, 6048, 6057, 6058, 6130, 6142, 6186, 6187, 6188, 6194, 6400, 6832, 6834, 6835, 6836, 6839, 6840, 6841, 6855, 6931, 6932, 6933♦ 6935, 6941, 6943, 6946, 6949, 6989, 7010, 7027, 7059, 7183, 7213, 7246, 7250, 7258, 7261, 7263, 7264, 7352, 7395, 7415, 7433, 7515, 7516 and 7564 of 2019 % 18-12-2019

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Cr1.P.No.5421 of 2019

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# Sri Jaganath Enterprises, Eluru Vasadhi Tripati Rao, S/o V.Prakash Rao, Age 49. Yrs., 20C-5-11, Ramalayam Street, Ganugula Peta, Eluru Mandal, West Godvari District.

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... Petitioner/Accused A.6

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Vs. $ 1. The State of Andhra Pradesh, Through SHO, Pamur P.S., Prakasam District Rep., by Public Prosecutor High Court at Amaravathi.

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. Respondents Counsel for the petitioners: Sri Siva Sai Swaroop, Sri Raja Reddy Koneti and Sri S.M.Subhan. ! Counsel for the Respondents: Public Prosecutor

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< Gist:

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> Head Note:

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? Cases referred:

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Cr1.W.P.No.3607 of 2019 2 1995(1) SCJ 277 s AIR 2018 SCC 5348 a 2011 (2) Crimes 250 s Manu/WB/0846/2017 6 2002 Crl.LJ 2872 1992 Supp (1) SCC 335

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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

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Criminal Petition Nos. 5421, 5537, 5540, 5568, 5620 , 5622 , 5624, 5638, 5822, 6046, 6048, 6057, 6058, 6130, 6142, 6186, 6187, 6188, 6194, 6400, 6832, 6834, 6835, 6836, 6839, 6840, 6841, 6855, 6931, 6932, 6933, 6935, 6941, 6943, 6946, 6949, 6989, 7010, 7027, 7059, 7183, 7213, 7246, 7250, 7258, 7261, 7263, 7264, 7352, 7395, 7415, 7433, 7515, 7516 and 7564 of 2019

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COMMON ORDER:

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These criminal petitions are filed under Section 482 of Criminal Procedure Code (for short `Cr.P.C.') to quash the proceedings against the petitioners, who are accused in different cases. The details of offences are mentioned in the table given below.

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S1.No.	CaseNumber	SectionofOffencesregistered
1.	Cr1.P.No.5421 of2019	120(B),353,273,188and420IPC.Sections 59,63ofFSSACTandSection20(b)ofNDPS Act
2.	Cr1.P.No.5537 of2019	272,273,328r/w34IPC,Sections57,58r/w 26,30ofFSSAct.
3.	Cr1.P.No.5540 of2019	272,273,328r/w34IPC,Sections57,58r/w 26,30ofFSSAct.
4.	Cr1.P.No.5568 of2019	270,273IPC,24(1)ofCOTPAct
5.	Cr1.P.No.5620 of2019	270,273IPC,5(1)and22ofCigarettesand otherTobaccoProductsAct,2013
6.	Crl.P.No.5622 of2019	270,273IPC,5(1)and22ofCigarettesand otherTobaccoProductsAct,2013
7.	Cr1.P.No.5624 of2019	270,273r/w34IPC,5(1)and22ofCigarettes andotherTobaccoProductsAct,2013
8.	Cr1.P.No.5638 of2019	270,273r/w34IPC,5(1)and22of^Cigarettes andotherTobaccoProductsAct,2013
9.	Cr1.P.No.5822	272,273,328r/w34IPC

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	of2019
10.	Cr1P.No.6046 of2019	272,273,353r/w34IPCandSection49(iv)of FSSAct,2006
11.	Cr1.P.No.6048 of2019	273,353ofIPCandSections26,30ofFSSAct, 2006.
12.	Cr1.P.No.6057 of2019	420,270, 272,188,328IPCandSection56, 57(1)and63ofFSSAct,2006
13.	Cr1.P.No.6058 of2019	420,272,273,188,328IPCSections57,58,59 and63ofFSSAct,2006
14.	Cr1.P.No.6130 of2019	188,272, 273,420,353r/w34IPCand Sections57(1),58,59and62ofFSSAct,2006
15.	Cr1.P.No.6142 of2019	188,272, 273,420IPCandSections58,59 and63ofFSSAct,2006
16.	Cr1.P.No.6186 of2019	188,270,273,328,420IPCandSection57(1) ofFSSAct,2006
17.	Cr1.P.No.6187 of2019	188,272,273,328,420,IPCandSections56, 57and63ofFSSAct,2006
18.	Cr1.P.No.6188 of2019	270, 273,284r/w34IPCand58,68Rulesof2, 3,4ofFSSAct,2006
19.	Cr1.P.No.6194 of2019	270, 273,328,420IPCand56,57and63of FSSAct,2006
20.	Cr1.P.No.6400 of2019	188,272, 273,328IPC,Sections58,59ofFSS Act,2006andSection24ofCOTPAAct,2003
21.	Cr1.P.No.6832 of2019	188,272,273IPCandSection59(i)ofFSS Act,2006
22.	Cr1.P.No.6834 of2019	188,273,353IPCand30(2)(i),58,59and63of FSSAct,2006
23.	Cr1.P.No.6835 of2019	272, 273,353r/w34IPC
24.	Cr1.P.No.6836 of2019	188,273,120(b)and420IPC,Sections57(1), 58,59and63ofFSSAct,2006
25.	Cr1.P.No.6839 of2019	188,273,120(b)and420IPC,Sections57(1), 58,59and63ofFSSAct,2006
26.	Cr1.P.No.6840 of2019	188,273,120(b)and420r/w34IPC
27.	Cr1.P.No.6841 of2019	273and420IPCandSections57,58,59(i)and 63ofFSSAct,2006
28.	Cr1.P.No.6855 of2019	188,272, 273,328and420r/w34IPC.,and Sections58,59and63ofFSSAct,2006
29.	Cr1.P.No.6931 of2019	418,420,269,270,272r/w34IPCandsection 5(1)ofCOTPAAct.
30.	Cr1.P.No.6932 of2019	269, 270, 273,r/w34IPCandsection5(1)and 22ofCOTPAAct.

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31.	Cr1.P.No.6933 of2019	418,420,269, 270,272,r/w34IPCand Section5(1)ofCOTPAAct.
32.	Cr1.P.No.6935 of2019	188,273,328,353IPCandSections58,59 and63oftheFSSAct.
33.	Crl.P.No.6941 of2019	Sections270and273IPC
34.	Cr1.P.No.6943 of2019	188,273,328and353IPC,Sections58,59 and63ofFSSAct,2006
35.	Crl.P.No.6946 of2019	188,273,and420IPC,Sections58,59and63 ofFSSAct,2006
36.	Cr1.P.No.6949 of2019	188,272,273IPC,Sections57(1),58ofFSS Act,2006
37.	Cr1.P.No.6989 of2019	273and420IPCandSection5(1)and22of COTPAAct.
38.	Cr1.P.No.7010 of2019	273and420IPCandsection22ofCOTPAAct.
39.	Crl.P.No.7027 of2019	188,273and 328IPC
40.	Cr1.P.No.7059 of2019	273IPCandSection5and22ofCTPAct
41.	Crl.P.No.7183 of2019	328,270,273,279IPCandSection20(2)and 22ofCOTPAAct
42.	Crl.P.No.7213 of2019	269, 270,271,273r/w34IPCandSections5 and22ofCOTPAAct.
43.	Crl.P.No.7246 of2019	269,271,272,273IPCandSection5and7of COTPAAct.
44.	Crl.P.No.7250 of2019	270,272,273,328r/w34IPCandSections 16,24,59(1)ofFSSAct.
45.	Crl.P.No.7258 of2019	270,273IPC
46.	Crl.P.No.7261 of2019	269,270, 271,273,406,420r/w34IPCand Sections5(1),22ofCigarettesandother TobaccoProducts(ProhibitionofAdvertisement andRegulationofTradeandCommerce, Production,SupplyandDistribution)Act,2003
47.	Cr1.P.No.7263 of2019	269, 270,273,328r/w34IPCandSections5 and22ofCigarettesandotherTobacco Products(ProhibitionofAdvertisementand RegulationofTradeandCommerce,Production, SupplyandDistribution)Act,2003
48.	Cr1.P.No.7264 of2019	188,273,328and353IPCandSections58, 59,63ofFSSAct,2006
49.	Crl.P.No.7352 of2019	270, 273,328r/w34IPCandSections5(2)and 22 of (Prohibition of Advertisementand RegulationofTradeandCommerce,Production,

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		SupplyandDistribution)Act,2003
50.	Crl.P.No.7395 of2019	188,272,273,328and420r/w34IPCand Sections58,59and63ofFSSAct,2006
51.	Crl.P.No.7415 of2019	188,270, 273,328and420IPCandSections 56,57(1)and63ofFSSAct,2006
52.	Cr1.P.No.7433 of2019	188,272,328,420,466,468, 471,474and 120(B)r/w34IPCandSection59FSSAct,2006
53.	Crl.P.No.7515 of2019	188,273and420r/w34IPCandSections58, 59and63ofFSSAct.
54.	Cr1.P.No.7516 of2019	270,273IPCandSections56,57(1)and63 FSSAct.
55.	Crl.P.No.7564 of2019	188,272,273,328,420IPCandsections58, 59and63ofFSSAct.

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This batch of criminal petitions are filed questioning the actions of the police authorities in registering cases under the provisions of the Indian Penal Code (IPC) and the Food Safety and Standards Act, 2006 (for short `the FSS Act) for transportation and sale of Tobacco, Gutka, Pan Masala etc. In view of the fact that a large number of cases were filed, they were all taken up as a batch and the arguments in Criminal Petition No.5421 of 2019 were heard.

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The lead in these cases were taken by Sri R.Siva Sal Swaroop, Sri Raja Reddy Koneti and S.M.Subhan, learned counsels for the petitioners. The learned Public Prosecutor for the State himself appeared and argued the matter on behalf of the respondent-State.

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Petitioners submissions:

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Since common questions of fact and law are involved, the cases were all taken up together. In the case on hand, the crime was registered under sections 353, 273, 188, 420 r/w 34 IPC and sections 59 and 63 of the FSS Act. In the lead case, Section 20(b) of the NDPS Act was also included.

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Sri R.Siva Sai Swaroop, learned counsel for the petitioner argued that despite the authoritative pronouncement on the same subject and the same sections in Criminal Petition No.3731 of 2018 and batch, by a learned single Judge of this Court, the police are continuing to register the cases under the very same sections. He points out that the orders were passed in the batch of matters in August 2018, but the police are still harassing the petitioners, who are legitimate businessmen by filing the cases under the same sections. It is his contention that the police have totally ignored the order that was passed by the learned single Judge of this Court in the batch of criminal petitions. He also points out that none of the sections which are mentioned are attracted. According to him, the manufacture, transportation and sale of tobacco is not barred under the Indian law. He points out that none of the sections, which are mentioned are actually applicable to the facts and circumstances of the case. He also submits that neither tobacco nor Pan Masala etc., would come within the definition of `food'. Therefore, he

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submits that the FSS Act is also not applicable to the facts and circumstances of the case. It is his contention that under the FSS Act, it is only the designated Officer under the Act, who can initiate proceedings and the police do not have the power or the authority to initiate any prosecution. He also points out that Government Orders that are issued are not based on any law, which empowers the Government to ban the items. He points out that the FSS Act is a Central Enactment, which is a self contained Code and therefore, only if food article is involved, the authorities under the said Act can initiate action.

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Sri Raja Reddy Koneti, learned counsel also argues on similar lines and points out that a comprehensive writ has already been filed about the right and the authority of the State to issue the G.Os under question. Apart from that, it is his very clear case relying upon the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short the COTPA Act) that tobacco is not food' and that the Central Government, while passing the said Act, did not ban the trade in tobacco products at all. He took great pains to analyse this Act and points out that it is only the advertisement and sale of tobacco products under certain circumstances that is banned. He points out that from a reading of the Act that the Schedule in the Act lists out the tobacco products, which are

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described in section 3(p) of the said Act. According to him, Pan Masala, Chewing tobacco or any other Chewing material having tobacco as an ingredient and Gutka are all classified as tobacco products only and not as food'. He relies upon the provisions of the FSS Act to argue that the Commissioner of Food Safety can only ban the manufacture, storage, distribution of an article of food. Relying on the definition of food', he submits that the alcoholic drinks are included in the FSS Act in the definition of `food', but the Central Government did not bring the tobacco products within the ambit of food. By relying on these two Central Enactments, Sri Raja Reddy Koneti contends that the tobacco is not included in the list of items, which can be banned under the FSS Act. Coming to the G.Os that are being periodically issued, learned counsel, in the alternative argues that under Section 30(2) of the FSS Act, any ban can only be for a temporary period not exceeding one year at a time. Therefore, he submits that the authorities are exercising the emergency provisions, which are meant to apply in certain situations and are banning legitimate trade, which is guaranteed to the petitioners under the Constitution. Learned counsel points out that the right to ban, manufacture, storage, distribution or sale under Section 30(2) of the FSS Act, for a limited period would arise only in emergencies. For example, he states that if a huge cyclone devastated a certain area and the likelihood of any article of food like poultry being contaminated/infected is there, the

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Authorities can ban the sale of the same. It is his contention that these provisions are meant to govern such situations. Therefore, learned counsel argues that the entire exercise done by the police in these cases illegal.

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Sri S.M.Subhan, learned counsel, continues the arguments on the same lines.

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Public Prosecutors submissions:

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Learned Public Prosecutor for the State appeared personally and argued on behalf of the respondents. It is his contention that even if tobacco is not classified as `food', it is still a very dangerous commodity and causes great harm to the consumers and consequently to the Nation at large. The learned Public Prosecutor also submits that once tobacco is mixed with menthol and lime and other products, which are food stuff, it becomes adulterated and consequently, he submits that Section 3 (1) (j) of the FSS Act is added. He relies upon G.O.Ms.No.6 dated 09.01.2013 by which the transportation and distribution of Gutka and Pan Masala is prohibited in the State of Andhra Pradesh. Considering the over all public health, the learned Public Prosecutor submits that as noxious materials are added to tobacco, the sections, which are included are attracted.

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Relying upon the judgement reported in Anand

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Ramdhani Chaurasia v. The State of Maharashtral, learned counsel submits that the offences are attracted and therefore, registering of the FIR is not barred. He also relies upon Joseph Kurian v. State of Kerala2, wherein the Hon'ble Supreme Court of India considered the applicability of Sections 272 and 328 of IPC while deciding the case. Lastly, he submits that the police can register the case and investigate the same. Relying upon section 26 of the General Clauses Act, the learned Public Prosecutor argues that when the Act complained is of an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under any one of the two enactments, but shall not be punished twice for the same offence. It is his contention that quashing the applications at this stage is not called for since the question of applicability of both the Acts would arise later and only when the punishment is being imposed. He relies upon State of Maharashtra and another v. Sayyed Hassan Sayyed Subhan and others3, which also deals with the FSS Act and offences under the IPC for the transportation and sale of Gutkha, Pan Masala etc. Learned Public Prosecutor also has filed some data relating to the types of diseases that are caused by the consumption of tobacco and

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' Crl.W.P.No.3607 of 2019 1995(1) SCJ 277

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3 AIR 2018 SCC 5348

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tobacco products including cardiac arrest, cancer etc. Therefore, it is his final submission that in the interest of public health, this Court should in fact support the police and other authorities in their efforts to reduce this menace, which according to him, is a killing lakhs of people in India. Therefore, learned Public Prosecutor opposes the quashing of the FIRs and submits that these are matter which should be allowed to be investigated and that the offenders should be prosecuted and punished.

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Finding of the Court:

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As noticed earlier, a learned single Judge of this Court has carried out a detailed analysis of the similar issues in the order passed in Criminal Petition No.3731 of 2018 and batch. It is also admitted that the said order has become final and the State has not taken up the matter in appeal or questioned the order in anyway. Despite the detailed analysis carried out by the learned single Judge and the well reasoned order passed, the registration of the FIRs is still continuing. In order to set the record straight and to hopefully bring a quietus to the problem, this Court is also proceeding to analyse the matter in detail instead of relying on the clear and well written earlier order.

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The FSS Act: (Act 34 of 2006)

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The first and foremost issue to be decided is the applicability of the FSS Act to tobacco/tobacco products and

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the definition of food'. Section 3 U) of the FSS Act, defines food' as a substance, which is intended for human consumption containing such ingredients as described in the said definition. The definition does not include animal feed, live animals etc. It also eliminates the applicability of narcotic and psychotropic substances. Alcohol is an item which is included in the definition of `food'. The COTPA Act, which is passed in 2003 (Act.No.34 of 2003) on the other hand defines in section 3 (p) of the Act, the tobacco products. The definition states that the products specified in the Schedule are tobacco products and the Schedule lists out 10 items as tobacco products. They are reproduced here under:

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THE SCHEDULE

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(Section 3(p)

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Cigarettes 2. Cigars 3. Cheroots 4. Beedis 5. Cigarette tobacco, pipe tobacco and hookah tobacco

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Chewing tobacco 7. Snuff 8. Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called). 9. Gutkha 1O.Tooth power containing tobacco.

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Cigarettes, Chewing tobacco, Pan Masala, Chewing material with tobacco are included in the tobacco products. Therefore, a prima facie reading of these Central enactments makes it clear that tobacco products are only defined under

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the COTPA Act and not under the FSS Act. The FSS Act, only talks of `food', which is intended for human consumption, which includes in it alcoholic drink, but does not include any narcotic or psychotropic substance.

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The next section that falls for consideration is, Section 56 of the FSS Act, which talks of penalty for unhygienic or unsanitary process for manufacture of food'. Section 57 of the FSS Act, provides for the penalty for a person, who mixes an adulterant with the food. Adulterant is described and defined in section 3 (1) (a) of the FSS Act, as a material used or could be used for making food' unsafe/sub-standard etc. Therefore, this section, in the opinion of this Court, could only come into play when food' is adulterated. Section 58 of the FSS Act, is a general provision, which provides penalty for contraventions for which no other penalty is provided. Section 59 of the FSS Act, deals with the penalty for any person who manufactures or sale, store, and distributes any article of 'unsafe food' for human consumption. Section 63 of the FSS Act, deals with the punishment for a person or food business operator, who manufactures, stores any article of food' without licence. Therefore, it is clear from a reading of the sections, which are being pressed into service by the prosecution time and again under the FSS Act, that all of them relate to food' and `food articles' only. The sections, which have been pressed into service, in the opinion of this Court, do not apply to an article which is not meeting the

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definition of food. Section 89 of the FSS Act, also provides that it shall have a overriding effect from all other food related laws. Apart from a plain grammatical meaning which is supporting the decision taken by this Court on the definition of food', the decisions of the Division Bench of the Allahabad High Court in M/s.Pepsico India Holdings (Pvt) Ltd., and Another v. State of U.P4 squarely applies to the facts and circumstances of this case. The learned Judges of the Allahabad Court have analysed various sections of law being pressed into service in that case and concluded that the FSS Act applies only to food' and food items.

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A learned single Judge of the Calcutta High Court in the case of Sanjay Anjay Stores v. Union of India and others5 also came to the conclusion that tobacco is not a food stuff. Relying upon the provisions of the FSS Act, and the other enactments, the learned Judge of the Calcutta High Court came to the conclusion that these articles are not food for the FSS Act to be pressed into service. In fact, the learned single Judge of this Court in the batch of criminal petitions referred to has also come to the very same conclusion. Thereafter, relying upon sections 41 and 42 of the FSS Act and after considering the law on the subject, the learned single Judge came to the conclusion that the Inspector of police or the subinspector of police do not have the authority to investigate or

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' 2011 (2) Crimes 250

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5 Manu/WB/0846/2017

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to file a charge sheet. He held and rightly so that it is only the Food Safety Officer, who is competent to launch a prosecution for the offence under the FSS Act. Despite this authoritative pronouncement of this Court; the status quo continues.

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IPC offences:

¶115

Coming to the offences under the IPC, the sections that are most often being pressed into service are Sections 272 and 273 IPC. Section 272 IPC makes punishable an offence by a person, who adulterates any article of food or drink'. Therefore, this Section would only come into play if food or drink is adulterated. The Indian Penal Code does not describe or define adulteration. The definition of adulterant is found in the provisions of the FSS Act. According to the said definition as found in Section 3 (1) (a) of the FSS Act, adulterant is a material which could make the food' unsafe or sub-standard or mis-branded. Therefore, according to Section 272 IPC, if a material is used to make the food unsafe/sub-standard or mis-branded, then only the offence would be attracted. In the case on hand, as tobacco or tobacco products do not come within the definition of food or drink, these products do not come within the ambit of Section 272 IPC. Similarly, Section 273 IPC talks of the sale of a noxious food or drink. If a person offers for sale a "food or drink" any article which has become noxious or is in a state of unfit for "food or drink".

¶116

¶117

This section would apply, when an article which has become noxious or which has been rendered noxious. It also applies to food or drink only. The word `noxious' is not defined in IPC, but as per the dictionary meaning noxious means harmful, deleterious, injurious, poisonous etc.

¶118

Section 188 IPC is also being pressed into service repeatedly in these cases. As per the settled law on the subject, section 188 IPC would apply to the disobedience of an order duly promulgated by a public servant. As per the settled law on the subject, before an accused is charged, there must be (1) an order duly promulgated by the public servant (2) the public servant must have the lawful authority to promulgate the order (3) the person flouting the same should have knowledge about the order directing him to abstain from the act (4) he must dis-obey the said order with the knowledge and (5) such disobedience of the duly promulgated order should cause a danger to the human life etc., (as applicable to the facts and circumstances of this case). The judgement of the Division Bench of the Allahabad High Court in Boop Singh Tyagi v. State 6 is appropriate in the circumstances. The right to promulgate the ordinance/order is also an issue which is being raised, because under the FSS Act, the Commissioner of Food Safety alone has the authority to pass the orders only if the article of `food' can^causes

¶119

6 2002 Cr1.LJ 2872

¶120

¶121

danger or is injurious to health. Since the matter is supposedly before the Writ Court, this Court is not expressing any further opinion, but the submission of the learned counsel for the petitioner, Sri Raja Reddy, that such a notification can only be issued for emergency situations and for prohibiting the distribution and sale of any article of a food cannot be lost sight of. This Court holds that the offence under Section 188 IPC., is also not attracted since the necessary pre-conditions are not satisfied.

¶122

Section 353 IPC is also pressed into service by the police in these cases. In the case on hand, the only issue that is raised is that the accused pushed' away the police officer while trying to escape. This by itself, in the opinion of this Court, would not amount to use of assault or criminal force against a public servant from discharging of his duties. Section 420 IPC is also being added in some of these cases. This Court notices that the essential ingredients for utilising the section are not at all fulfilled. There is neither inducement nor delivery of any property to bring in the ingredients of section 420 IPC. As per the settled law on the subject, this intention must be present from the inception. The police are in fact third' parties to the offence of cheating and therefore, whether they can maintain a complaint under Section 420 IPC is also debatable. The related sections from 415 IPC are also not applicable as this Court is of the opinion that as on date, the trade in tobacco products is not barred.

¶123

¶124

A reading of the judgment of the Hon'ble Supreme Court of India in Joseph Kurian's case (2 supra), also throws some light on the applicability of Section 272 IPC. Their lordships of the Hon'ble Supreme Court clearly held that for Section 272 IPC to be attracted, the following should be present. (1) That the article involved was food and drink meant to be consumed by live persons (2) that the accused adulterated it and the adulteration rendered it noxious as a food or drink'. (3) that the accused knew at the time of adulteration that he would sell the article as food or drink and knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court clearly held that the offence is completed on the introduction of the adulterant. As mentioned earlier, adulterant would mean a material which is mixed to make the food' unsafe or the drink unsafe. In the case and hand, tobacco is not food and what is stated to be mixed in it is not clearly established by any cogent material as an `adulterant' for the offence under Section 272 IPC to be pressed into service. As far as section 328 IPC is concerned, in the same judgment it was held as follows:

¶125

"10. In order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupefying, intoxicating or unwholesome drug etc, that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely

¶126

¶127

that he would thereby cause hurt, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing it to be taken by any person, through another "

¶128

Tobacco does not fit into this definition.

¶129

The learned Public Prosecutor's efforts to persuade this Court that lime etc., are being mixed in tobacco etc., does not lead to a conclusion that they are used as adulterant or are rendering the tobacco product noxious.

¶130

Apart from these main sections, which are being pressed into service, this Court also notices that in some of the complaints, following sections are also being added randomly. In that view of the matter, this Court has to answer the same.

¶131

Section 153 IPC is being added. This section begins with the words `malignantly or wantonly', but as can be seen from the section, it only applies to provocation that is given which is likely to cause rioting of the offence. Similarly, Sections 269 and 270 are also being utilized by the police and mentioned in the FIRs. Already this Court has discussed about the applicability of sections 272 and 273 IPC. These two sections are also similar. Both sections 269 and 270 deal with an action of a person who unlawfully and intentionally

¶132

¶133

knows that he is likely to spread infection because of his action. Section 270 IPC in fact is an aggravated form of the offence mentioned in section 269 IPC.

¶134

This Court's conclusion is that sale, manufacture, processing etc., of tobacco are not totally banned and in the latter part of the order this is discussed. Therefore, since the sale of tobacco products is still not banned in this country and it is only regulated to a certain extent, it cannot be said that sections 269 and 270 IPC are attracted to a case of possession and sale of tobacco or tobacco products.

¶135

Section 284 IPC is also mentioned in some of the FIRs. A reading of this section would clearly show that it only applies to the rash and negligent use of a poisonous substance. Both the use or the negligent failure to guard against probable danger to human life from a poisonous substance is what is covered by these sections. This section, therefore, also would not apply.

¶136

COTPA Act (Act 34 of 2003):

¶137

Coming to the provisions of the COTPA Act, this Court notices that the objects and the reasons of the said Act itself clearly state that the act is meant to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. (emphasis supplied)

¶138

¶139

Therefore, it is clear from a reading of this Act that a total ban of the tobacco products was not envisaged by the Act. The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section 3 (p) of the COTPA Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section 5 of the COTPA Act talks of prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products. Lastly, no person shall be a part of any advertisement. This is what is prohibited by Section 5 of the COTPA Act. Section 7 of the COTPA Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Section 4 of the COTPA Act, bans smoking in public places. In addition, section 6 of the COTPA Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of 18 years are in an area within 100 yards of any educational institution.

¶140

A reading of this Act, particularly sections 4, 5, 6 and 7 clearly shows that there is no general ban or general prohibition on the manufacture/sale of tobacco products.

¶141

¶142

What is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections 5 and 7 of the COTPA Act, deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, this Court is of the opinion that the provisions of the COTPA Act, can only be pressed into service in these limited circumstances only (violation of sections 4, 5, 6 7 and 10). In addition, if the package does not contain any pictorial or other warning, the prosecution can be launched. Therefore, it is clear that the Central Government imposed certain restrictions on the manufacture, sale, distribution and consumption of tobacco only, but it did not absolutely ban the same. As rightly pointed out by Sri Raja Reddy Koneti, learned counsel, the right to carry on a trade is a right guaranteed by the Constitution of India and this right can only be regulated or taken away by appropriate legislation. His contention that the high handed police action is being used to curtail the genuine trade also appears to be correct. The COTPA Act is a special Act intended to deal with trade, commerce, production, supply and distribution of tobacco products. Although it is universally recognised that tobacco products are injurious to health, the fact remains that their production, trade and supply etc., are not banned in their

¶143

¶144

entirety. The Union despite the overwhelming evidence of the dangers of tobacco products did not ban the manufacture/trade/sale of tobacco products.

¶145

This Court is constrained to reiterate all these issues once again, despite the order passed by the learned single Judge in Crl.P.No.3731 of 2018 and batch. The conclusions of the single Judge in the said batch are fully agreed to by this Court also. None of the sections of the IPC or the FSS Act, which are pressed into service are applicable to the facts and circumstances of the case. Since the notifications issued by the State Government are said to be the subject matter of different challenge in the original writ jurisdiction, this Court is not pronouncing on the same.

¶146

But as far as the present cases are concerned, this Court by exercising the power under section 482 Cr.P.0 and following the mandate of the Hon'ble Supreme Court of India in State of Haryana v. Bhajan 1a17 and the judgement of the High Court of Allahabad in M/s.Pepsico India Holdings (Pvt) Ltd., and Another (4 supra), is constrained to hold that all the FIRs/cases that have been registered under the provisions of the IPC, FSS Act and the COTPA Act are quashed, leaving it open to them, if they so desire to pursue the prosecution in respect of the offences under the other enactments, if any. The offences under the NDPS Act can be

¶147

' 1992 Supp (1) SCC 335

¶148

¶149

pursued. The offences under the COTPA Act, can only be launched if the police find that the sections 5, 6 7 and 10 are not complied with. Except on these very limited grounds genuine/legitimate traders cannot be prosecuted.

¶150

It is hoped that copies of the orders passed by the learned single Judge in Crl.P.No.3731 of 2018 and batch and this order are widely circulated by the Director General of Police and the Chief Secretary of the State of Andhra Pradesh through out the state of Andhra Pradesh so that the time and effort of the police are devoted to more serious crimes. Whatever be the impact of tobacco products on the health of an individual or the nation; till the law is amended/modified it has to be followed. As held by many Courts earlier; it may be hard, but it is the law.

¶151

With the above observations, the criminal petitions are allowed.

¶152

As a sequel, dispense with petitions, if any, shall stand ordered and other miscellaneous petitions, if any, shall stand closed.

¶153

D.V.S.S.SOMAYAJULU,J

¶154

Date: 18.12.2019 Note: L.R. copy be marked. KLP

Garisapati Ramanaiah v. the State of Andhra Pradesh

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Garisapati Ramanaiah v. the State of Andhra Pradesh

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