Allowed

Naba Krishna Dutta v. The State of Telangana

Telangana HC9 Sept 2024CRLP/10543/2024

Case brief

AI extract

What is this about?

The High Court allowed Criminal Petition No. 10543 of 2024 filed under Section 528 BNSS to quash proceedings regarding offences under BNS Section 275 and COTPA. The petitioners relied on a previous common order in Crl.P. No. 152 of 2020 & Batch. The court applied the reasoning of the earlier order, quashed the proceedings, directed the return of seized property, and closed pending petitions.

What did the court decide?

Quashed proceedings against the petitioner in Crime No.130 of 2024. Seized property ordered returned. Pending miscellaneous petitions closed.

Naba Krishna Dutta Vs The State of Telangana — Quashing and FIR | Telangana HC (2024)

¶1

[³³⁸⁵ ]

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY, THE NINTH DAY OF^SEPTEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE^K. SUJANA

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CRIMINAL PETITION NO: 10543 OF 2024

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Between

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Naba Krishna Dutta, S/o Dinabandu Dutta Aged about.^{43 years,Oce.} Business Rl/o Kirana Shop, Jyothinagar, IDA Bollaram,^{Sanga ReddyDistrict,} Telangana.

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...Petitioner

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AND

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The State of Telangana, Rep by the Public^{Prosecutor, Through P.S.IDA} Bollaram.

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...RespondenUCom plainant

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Petition under Section 528 of BNSS Act^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 Crime NO.130 of 2024 on the file of PS IDA Bollaram, Hyderabad for the offences UIS 275^BNS, 20(2) rlw^{7 (2) COTPA.}

¶14

l.A. NO: 2 OF 2024

¶15

Petition under Section 528 of BNSS Act^praying that in the^{circumstances} stated in the N/emorandum of Grounds of Criminal Petition, the^{High Court may be} pleased stay all further proceedings including appearance of the Petitioners in Crime. No.130 of 2024, on the file of P.S. IDA^Hollaram Town^pending disposal^of the Crl.P. in the interest of^justice.

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I.A. NO: 3 OF 2024

¶17

Petition under Section 528 of BNSS Act^praying that in the^{circumstances} stated in the lvlemorandum of Grounds of Criminal Petition, the^High Court^{may be} pleased to direct the Court below to return Sized Property in connection with Crime No.130 of 2024 on the file of PS IDA Bollaram forthwith^immediately pending disposal of the Crlp in the interest of^justice.

¶18

This Petition coming on for hearing, upon perusing the l,4emorandum of Grounds of Crrminal Petition and upon hearing the arguments of Sri Srinivas Reddy Balakisti. Advocate for the Petitioner and Sri l\run Kumar Doddla, Additional Public Prosecutor on behalf of the Respondent.

¶19

The Court made the following: ORDER

ltAE*

f (

, i,l I I

THE HONOURABLE SMT. JUSTICE K. SUJANA

¶24

CRIMINAL PETITION No.1O543 of 2O24

¶25

ORDER:

¶26

\ \

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The present Criminal Petition is filed under Section⁵²⁸ Bharatiya Nagarik Suraksha Sanhita^{(for short'BNSS) to quash} the proceedings against the petitioner/ accused^{in Crirne No.130} of 2024 of IDA Bollaram Police Station,^{SangareddyDistrict,} registered for the offcnces^{punishable under Section 275 of LLre} Bharatiya Nyaya Sanhita (for short^{'BNS') and Section 20 (2)} read with 7 (2) of thc Cigaretlcs^{and Other TobaccoProducts} (Prohibition of Advertisement and Regulation of Trade^and Commerce, Production, Supply and^{Distribution) Act, 2003(for} short 'the COTP Act').

¶28

Heard Sri Srinivas Reddy Balakisti,^{Iearnedcounsel} appedring on behalf of the^{petitioner as well as} Sri^{D. Arun} Kumar, learned Additional Public^Prosecutor appearing^on behalf of the respondenl s.

¶29

Learned counsel for the^{petitioner submitted} that^the matter is squarely covered by the^{order datedO5.O7.2O2} iⁱⁿ Criminal Petition No. 152 ot^{2O2Oand batch and enclosed a copy} of the said order.

¶30

¶31

¶32

SI(S,J crl.P.No. to543 of 2024

¶33

Lr:arned Additional Public ProsecuLor also s;ubmitted that the issue in the prcsent criminal petition is covered by the earlier ordcr in the abovc criminal petition.

¶34

In view of the said representation and as the matter is squarel5. covered by the order in the abovc batr:h of criminal petitions, this criminal petition is allowed in terms of the above said common ordcr, adopting the reasoning contained therein. The proceedings against the petitioner/ accusecl in Crime No.130 of 2024 of IDA Bollaram Police Station, Sangaredrll' District, are hereby quashed .

¶35

Pending miscellaneous petitions, if any, in this Crimina_l

¶36

Petition shall also stand closed.

¶37

SD/- V KAVITHA, ASSrsrANr(EGrsrRAR.

//TRUE COPYii

SECTION OFFICER

To,

1 . The Judicial First Class lvlagistrate-cum-Special lvlobile^{Court at} Sangareddy 2. The Station House Officer, IDA Bollaram^Police Station,^Sangareddy

¶42

Two CCs to the Public Prosecutor,^High Court for^{the State of Telangana} at Hyderabad [OUT]

¶43

One CC to SRi Srinivas Reddy Balakisti, Advocate [OPUC]

¶44

Two CD Copies

ADK

HIGH COURT

DATED:0910912024

ORDER

CRLP.No.f 0543 of 2024

¶51

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¶52

ALLOWING THE CRLP

¶53

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¶54

IN THE HIGE COUR'I' FOR TIIE STATE^{OF TELANGANA}

¶55

AT: HYDERABAD

¶56

CORAM:

¶57

THE HON'BLE SRI JUSTICE K. LAKSHMAN

¶58

CRIMINAL PETITI ON No.l52 OF 2020 & Batch

¶59

% Delivered on: 05-07-2021

¶60

Betwee in Crl.P. No.152 of 2020

¶61

Mr. Mohd. Jameel Ahmed

¶62

PetiLioner

¶63

Vs.

¶64

$ The State ofTelangana, rep.by^{Public Prosecutor} High Court ofTelangana, Hyderabad^{& another}

¶65

Respondents

¶66

! For respective Petitioners

¶67

^^{ForRespondents}

¶68

Mr. M.A.K. Mukheed

¶69

Mr. Gajanand Chakavarthy Mr. K. Surender Mr. Praveen Kumar^Veerj ala, Ms. P. Radhika Mr. Sridvas Reddy Balakisti Ms. C. Sunitha Kumari Mr. Kondadi Ajay Kumar Mr. S.M. Subhan Ms. N. Arthi Mr. Y. Bala Murali Mr. Boggula Raju Mr. S. Chandrasekhar Mr. V. Yadukishna Sainath Respective leamed counsel Leamed Public Prosecutor

¶70

< Gist

¶71

Head Note

¶72

? Cases Refened

¶73

2018 AIR^(SC) 5348

¶74

20t6 cn. L.l.2401

¶75

2019 SCCOnlineBom^185?

¶76

4- Crl.P. No.373l of20t8 &^{batch, decidedotr27082018}

¶77

s. 2020 (I) ALT (Crl.)215^(APHC)

¶78

1995⁽¹⁾ SCJ 277

¶79

7.20II(2)Crimcs250

¶80

2017 SCC Or^ine Cal¹⁶³²³

¶81

2002 Ctl.L.l.2812

¶82

1992 Supp (t) SCC³³⁵

¶83

2020 Supreme(AP)³⁴⁸

¶84

Cdminal^{PetitiotrNo.5323 of2009,decidedoo t7.09 2009}

¶85

Criminal Petitioa^{No.15248 of2016, decidcd otr 26 10.2016}

¶86

¶87

KI.J Crl P t;o t52 aJ 2A)0 & botch

¶88

HON'BI,E SRI JUSTICE K. LAKSHMAN

¶89

CRIMINAL PETITION Nos.152. r53. 155. 162 &5826OF2 020 AND 3498. 3500 350g 35t 4 176R 3 R7q 4046 407n 4071 4098 4099 4100 4t02 4l l0 allo lt4at 4t4t 4151 4157 4178 4182 4ta7 4t^qd 42^t6 41a{\ 41i1 t7 4o 4251 4258 4262 4277 4361 440\44 ts- 4s42. 4612. 46 15- 4622- 4632 4640 4681.4727 -4:t75 & 4825 OF 2021

¶90

COMMON ORDER

¶91

All the above Criminal Petitions are filed to quash the proceedings against the petitioners - accused in respective Crimes / Calendar Cases. The details of relevant Crimes / Calendar Cases, offenccs alleged, nahrre of offences etc., are mentioned in

¶92

the following labular form:

¶93

sl. No	CrlP No.	UrimcNo	Number	O[Iences allegedly committed	Nahrreofoftancc
OI	'1768/21	217i20ofPS .'Ianohrfabad		2',t2,273rPC& 20 (2)r/w7(2)of COTPA	TiansponadonofAmber
02	3879t2t	33/2I 01'PS Kadam		210&273tPC	Saleof bamedtobacco
03	4046t21	78/21ofPS('l) Adilabad	At&2	-do	Saleof^{gutka/tobacco}
M	4077/?t	2ll21 ol'PS &!co.ro			Possessionofgu&a /tobacco in pao shop
05	409U/2t	185/21ofPS(1) Nimal	Alto3	210,2't3tPC&. 20 (2)ofCoTPA	bired
06	4099t2t	No36/21ofPS Kou!ala		270&213IPC	I'ossessionof(obacco ducbhthe house
07	4t00t2l	No.3812LoftS Easgoao		270&273tPC	itemsin sho Possessionofbaoned gu&a&ot-bertohacco
08	1to2i2l	,155/21ofPS Kukatpally		136,273&188 IPC&59(i)of FSSA	TraNportationand salc ofprohibitedrobacco
09	414I]2t	45/21of PS Chr"gpally	Al!o3	210&273 tPC& 2o(z)tlvr^'1Q)ot COTPA	Tmnsportationof
IO	4t5t/2t	193/2IofPS Choutuppal		272&213tPC.& 20 (2)ofCoTPA	Stomgeoftobacco mductsforsale
1t	4t51l2I	13,1/21ofPS Chiqxl(M,G)		212, 273&328 rPC&20(l)&7 (l)ofCOTPA	Purchaseandsaleof prohibiredtobacco
t2	4182/21	74121ofPS Raehunadhpalem	At&2	2/0&273 tPC	TraDsportatiotrofbanned tka
13	4t81l2t	20zr7lofPS(T) Mrncheriat	sole	-do	Possessionofbaoned roducts

¶94

¶95

KL,] Crl.P. No 152 o[ 2020 & batch

¶96

t4	4241t21	6l121ofPS II TowaAdilabad	sole		Possessionof bamcd gutkapmducLs
t5	4249t2t	l0l/21ofPSI TowoAdilabad	A.l&2	'do	Saleofg'rkaand
l6	4251/21	90rl ofPSI TowoAdrlabad	accusd	-do	noxious^gulkaand
t'7	4258/2t	9l/21ofPSI TownAdrlabad		'do	Saleofbanned^gu&aatrd lobacco^products
l8	426)t2t	107/21ofPSI TowoAdilabad	Ar&2		Trdrsportation of^gu&a andlobacco^pmducts
I9	42t1t2l	152,21ofPS AMullapurEet	Alrcl	tag,272, 173& 328 tPC	Saleof.bann€drobacco (tambak'r) productsin lo.ry
20	4405t21	202121ofPSI TownNalgonda	sole	tag,272e213 IPC	Transportationof Eutka./lobacco^products
1t	&t5nt	232121ofPSll (T) Nalsooda	solc	-do	PossessrooofbaDned eutka^{/tobacco pmducts}
12	4542121	87,21ofPSm (T)Kothagudem	AI&2	188,259,270, 213nw34tPC& 3 ofEDA&5l (b)orDMA	Possessiotroftobacco pmducrs inkirashop
73	45t5l2t	22511otPS NirmalTowtr	Al &2	270&213IPC	Poss€ssionof^pmhibited tobacco^pmductsforsalc
24	4640t2t	89/20ofPS Mamada		-do-r/w14tPC	TENportatiooof bamed tobacco/gutka^pockets
25	468tnl	185/21ofPS Pcddavoom	i2	328w5ll,277 &271tPC	Possess;onofbaoned gu&a&tobacco productsinkiraoa shop
26	4t27/21	164121ofPS Adibada	L2	210,272&211 IPC&20 (2)o[ COTPA	Tmnspo(ationof cigarettc orothertobacco p.oductswithoutvalid
27	4715t2t	234121ofPSI (T) Nalsonda		328,272,273& I88IPC	Saleof^gutka&kharni
28	482stzt	215121ofPS KhammamE)	At&2	128, 270&²⁷³ r/w 5lIIPC&20 (2)ofCOTPA	Tm$portatiotr otbamed gulkn

¶97

		3515/19of	CA	LEIIDARC 270ztJ&	ASES
29	t52/20	I.AJMFC. Wararqal	A2	, 188,420IPC &5EofFSSA	Tra$portationof baotred^zarda products
30	t53/20	2724119of X!'IIACMM, Hvd.	A2	272&213 IPC&59of FSSA,2006	Saleofzardailegally
3I	t55t20	3518/19of I.AJMFC.	A3	420, 210& 271 rPC&58 ofFSSA	Transportation of bamedzarda
f2	162120	4711/18of XIAMM, Sec.bad	A2	272,2',t3, 316 &.420 rPC& 20 (2)or COTPA	Saleofprohibited^g'rlkaaod chewhgtobacco^pmducts
3l	5826120	Special MagisFate ofIIClass, Jagtial	At&2	188,270& 2t3tPC	Trmsportation of Amber^gutka pockets
34	3498n1	216120ot JFCM, Devarkooda	Al&2	420&273 TPC	Saleof bamedtobacco^{and gutka} Products
35	1500t2t	961/19of JFCM, Miryalguda		420&273 IPC&20^(ir) ofcorPA-2001	TraDsportalionoftobacco^and gutkaproducts

¶98

¶99

KI. J Crl.P. Na 152 af2020 & batch

¶100

|36|3509'21|,tit,?ool'
xx'\l\l(,|Al&2|t88,270 &
213|jC,Zt)
(2)ol CoTPA,
3ot[DA&
sl (b)of
DMA|Storaeeofbafi1cd gutkaaodother
tobaccoproducts illegally forsale| |---|---|---|---|---|---| |,7|l5l412l|6llrI,,
ol'
XXvNrlvlc,|AlroS|188,270.273
&420IPC&
20 (2)or
COTPA|Supplyofgutkaandohertobacco
L
productj| |38|40l0i2t|{47ill
PJNlI. L
(jaiwcl
of|Lt&2|212&273
rPC&20(2)
r/w7(2) of
COTPA|Transportatiotrof Ambertobacco| |l9|4ll02r|509/2i)of
SplP('R
Vobilc
JMI:(',
Adilabad|Alto5|270&273
rPC&20(2)
tlw 7(2) ot
COTPA|Transportationofpanmasalaaad
baDnedgu&a| |40|4ttgnt|5l)DAof
SplP(R
\lobilc
Jt{I('
Adilabad
||270,27t,212
&273rlet34
IPC
Sec.3otEDA|Trusportatiotr ofcottooseedsand
banned gutka| |4l|4t40/21|llrN
sr('
No20/21of
lv
ANIM-
AJ('J,|At&2|272&2t3
IPC&Sec.20
(l),20 (2)of
COTPA|Transportation of bamedtobacco
and gutka| |42|4t78t2t|..a
8ll)121of
IAITlII("
Khamnram|sole|2t0&273
rPc&20(2)
ofCOPTA|Purchaseandsaleofbaroedgutka| |4l|4t94t2t|6167/21of
\vlr1(NIM,
\amprlly||t88,272 &
211 tPC&20
(2)&5of
COTPA|NotNo.505/FSS-l2l
dt.6t.2l
Saleoftobaccopmductsinhis
shop atrddisob€yitrg the rules
imposedbyco!.t.in| |44|42t6t2t|l2'13/21of
PJNtf(.|At&2|210&273
rPC&20(2)
ofCOTPA|Tnos?onadoE oaAmbergutka| |45|42]0/21|S2()121 ot
PJNIt'('.
|AI&2||TraBportatioo ofgutka/patr
masala| |46|436r/2r|lOE2l
ol
AJ\1t:(.|At&2|2',10&273tPC|PossessioDoftobaccoproducB
illegallyforsale| |47|46l1t2t|5lt'20
,\J\1t'(
|Solc|-do|PurEbae andsaleofprohibited
guka pockets| |48|4612t21|aJ2l19of
,\J\tf(,
Numal|A'&2|do|Possessiotrofgutkapacketsatbus
nand forsaleilegaly| |49|46J2iZl|,
1llr20of
,\J{|(,
NrrNal|A3|-do-r/w34
rPC&20(2)
ofCOTPA|Transporudon ofbanned tobacco
Pmducts|

¶101

Ileard Mr. M.A.K. Mukheed, Mr. Gajanand Chaiaavarthy,

¶102

Mr. K. Surendcr, Mr. Praveen Kumar Veerjala, Ms. P. Radhika,

¶103

¶104

KL,J C.l.P. No.tj2 oJ 2020 & bdtch

¶105

Mr. Srinivas Reddy Balakisti,^{Ms.C. Sunitha Kumari,Mr. Kondadi} Ajay Kumar, Mr. S.M. Subhan,^Ms. N. Arthi,^{Mr. Y. BalaMurali,} Mr. Boggrlla Raju, Mr. S.^{Chandrasekhar,Mr. V. Yadukishna} Sainath, leamed counsel^{appearing on behalf of respective petitioners} and leamed Public Prosecutor^{appearingon behalf of respondents -} State.

¶106

The^{questioninvolved in all theabovemattersis one and the} same and, therefore,^{the samearedisposed ofby way ofthis common} order.

¶107

The main allegations^{againstthe petitioners- accused are} that they were transporting,^{possessing,storing,selling and} purchasing the banned^{productsvz., tobacco / tambaku / gutka /} k}lani I zarda I^pan masala^{respectively.The offences alleged against} the petitioners are under^{Sections - 188,270,269,271,272,273,328'} 136 & 420 read with 34^{and 511 of the Indian Penal Code,1860(for} short 'IPC'); Sections^{- 20 (1),20 (z)arld5 readwith7(2) and 7 (3) of} the Cigarettes and Other^{Tobacco Products(Prohibition of} Advertisement and^{Regulation of Tradeand Commerce, Production,} Supply and Distribution)^{Act,2003(forshort'COTPAct'); Sections-} 58 and 59 of the Food^{Safetyand StandardsAct, 2006 (for short'FSS} Act'); Section - 3 of the^{Epidemic DiseasesAct,1897(for short'ED} Act') and Section^{- 51 (b) of theDisaster ManagementAct, 2005(for} short DS Act) respectivelY.

¶108

¶109

KI,.J Crl.P. No.l52 of2020 & barch

¶110

The respcctive leamed counsel appearing on behalf of the petitioners in the above criminal petitions would submit that the contents of compLaint / charge sheet lacks the hgredients of the offences allegcd against the accused, For the offences under the provisions of FSS Act, only Food Safety Officer is having power to initiate criminal proceedings against accused and the police are not having any power to register a case for the offences under the provisions of FSS .A.ct. There is no inducement by the petitioners and, therefore, offence under Section - 420 of IPC does not arise. According to them, the contents of complaint / charge sheet are also lacking the ingledicnts of the offences under Sections -269,270,271, 272,273,328 and 336 of IPC.

¶111

i) According to them, there is no violation of Sections - 20 (1), 20 (2) and 5 read rvith 7 (2) atd,7 (3) of the COTP Act. The Investigatrng Officers / Complarnants without following the procedure laid down undcr the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), have registered the cases for the offence under Section - 188 of IPC and laid charge sheet against thc accused. Necessary ingredients to attract the provisions of Section - 3 of the ED Act and Section - 51 (b) of the DM Act are lacking in the complaint / chargc sheet.

¶112

ii) With the above said submissions, the respective leamed counsel sought to quash the proceedings in the aforesaid crimes / calendar cases.

¶113

¶114

KI,.J Ol P. No.I52 of2020 & batch

¶115

On the other hand,^{leamed Public Prosecutor referring to the} principte taid down in the^{Stateof Maharashtrav. Sa1led Hassan} Sayyed Subhanl by the Hon'ble^{Supreme Court and in Genesh} Pandurang Jadhao v. The^{State of Maharashtra2and Anand} Ramdhani Chaurasia^{v. The Stateof Maharashtra3bythe Bombay} High Court would^{submitthat policeare havingpower to register} cases under various^{provisionsof IPC, COTP Act,ED Act andDM} Act. There is no irregularity^{in registering crimes, seizing material} rncluding the vehicles and^{laying charge sheet againstrespective} accused in the aforesaid^{crimes / calendarcases. Accordilg to him,} the accused were transporting,^{possessing,storing, sellingand} purchasing the banned^{productsvrz., tobacco/tambaku / gutka /} khaini / zarda / pan^{masala respectively.Accordingto him, the} accused have to face^{either investigation or trial and prove their} imocence, and instead of doing^{so, they havefiled thepresent} criminal^{petitionsunder Section- 482 of Cr.P.C. which cannot be} considered at this stage.

¶116

i) With the above said^{submissions, leamed PublicProsecutor} sought to dismiss the^{abovecriminalpetitions.}

¶117

In view of the^above rival^{submissions,it is apposite to} exftact the relevant^{provisionsof IPC, COTP Act, FSS Act,ED Act} and DM Act, which^{areas under:}

¶118

20r8 AIR (SC) 5148

¶119

20t6 cn. L]. 2401 2019 SCC Online Bom¹⁸⁵⁷

¶120

¶121

KL.I Crl P ila It2 of2t)2t) & bdtctt

¶122

R-ELEVANT PROVI SIONS UNDER IPC

¶123

"188,^Disobedierce to order duly promulgated by public servant.'-\ltoevcr, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take c€rtain order with .ertain propcrty in his possession or urder his management. disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk ofobstruction, annoyance or injury, to any person IaMully employed, be puhished with simple imprisonment for a term which mav extend to one montb or with fine which may extend to hvo hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safcty. or causes or tends to cause a riot or affray, shall be punished \r,ith imprisonment of either description for a term which may exte[d to six mo[ths, or with fine which may extend to one thousand rupees, or with both.

¶124

Explanation. It is not rl(]cessary that the offender should intend to pr,:duce harm, or contemplate his disobedience as likely to produce harm. It is suffrcient that he knows ofthe order which he disobeys, and that his disobedience produces, or is likely to prodLrce. harm.

¶125

Illustration An ordcr is promulgated by a public servant lawfully^grnp6E...6 to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger ofriot. A has committed the offence defined in this section."

¶126

"269. Negligetrt act likely to spread infection of disease dangerous to life Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the inlection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months. or with fine, or with both."

¶127

"270.^Malignant act likely to spread infectior of disease

¶128

dangerous to life. -Whoevcr malignantly does any act which

¶129

¶130

KL,J C.l.P. No It2 of2020 &batch

¶131

is. and which he knows or has reason^{to believe to be, likelyto} sprcad the inlbction of any^{disease dangerousto life, shallbe} punrshed with imprisonment of either^{descriptionfor a term} which may extend to two^{years, or with firle,or with both} "

¶132

"271. Disobedieoce to quaratrtitre rule.-Whoever^knowingly disobeys any rule made^{and promulgatedbytheGovemmentfor} putting any vessel into a state of^quara-ntine, or^{for regulating the} intorcourse of vessels in a state^{of quarantinewiththe shore or} witb other vessels, or for^{regulating the intercourcebetween} places where an infectious disease^{prevailsandother places,} shall be punished with^{imprisoDmentof either description fora} term which may extend to six^{months,or with fine, or with} both."

¶133

"272, Adulteration of food or drink^{itrteodedfor sale-} Whoever adulterates any^{articleof food or drink,so as tomake} such article noxious^{as food or drink, intendingto sell such} a(icle as food or drink, or^{knowingit to be likely that thesame} will be sold as food or drink,^{shallbo punishedwith} imprisonment ofeither description^{for a term which may extend} to six months, or with firle^{which mayextendto one thousand} rupees, or with both."

¶134

"273. Sale^{of noxious foodor drink.-Whoeversells,or offers} or exposes for sale, as^{foodor drink, any articlewhich hasbee[} rendered or has become noxious,^{or is ina state unht forfood or} drink, knowing or having^{reason to believethat the same is nox-} ious as food o. drink, shalt^{be punished withimprisonmentof} either d€scription for^{a term which may extetrd to six months,or} with fine which may exteld^{to onethousandrupees, or with} both."

¶135

"328. Causing^{burt by means of poison, etc.,withitrtentto} commit atr offence.-Whoever^{administers to or causestobe} taken by any person any^{poison or any stupefying, intoxicating} or uowholesome drug, or other^{thing withintent tocausehurt to} such person, or with^intetrt to^{commitor to facilitatethe} commission of an offence^{or knowingit to be likelythat he will} thereby cause hurt, shall^{be punishedwithimprisonmentof}

¶136

¶137

KL.J C P,\o It2 of 2t)2t) & botcL

¶138

either descriltron lbr a term which may extend to ten years, and shall also he liablc to line."

¶139

"336. Act endangering life or personal safety of others. Whoever docs anv act so rashly or negligently as to endanger human life or the pcrsonal safety ol others, shall be punished with imprisonment of either description for a term which may extend to threc months, o. with fine which may extend to two hundred and iifly rupees, or with both."

¶140

"420. Chcating ard dishonestl! irducing delivery of property. \rhoever cheats and thereby disholestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anlthing which is signed or scaled, and which is capable of being converted into a valuable security, shall be punished with imprlsonment of either description for a term which may extend to seven years, and shall also be liablo to Ine."

¶141

"34. Acts done by several persons in furtherance of common itrtention. Wherl a criminal act is done by scveral persons in furtherance ofthe common intention ofall, each ofsuch persons is liable for that act in the same manncr as if it were done bv him alone."

¶142

"511. Punishment for attempting to commit offences punishable with impriso[ment for life or other imprisonrncot. Whoever attcmpts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offelce to be committed, and in such attempt does any act towards the commissioo of the offence, shalL, where no express provision is made by this Code for the punishment of such attempt, be punishcd with imprisonment of any description provided for thc offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-halfof the longest term of imprisonment provided for that offenco, or with such fine as is provided for the offence, or with both."

¶143

¶144

KL,T Ctl.P- No 152 of2a20 abatch

¶145

RELEVANT PROVISI^{ONS UNDER COTP ACT}

¶146

"5. Prohibition of^{advertisementof cigarettesard other}

¶147

tobacco products.{l) No^{person engagedin,or purported to} be eflgaged in the^{productioo,supply or distribution ofcigarettes} or any other tobacco^{products shall advertiseand noperson} having cotrtrol over a^{medium shallcause to be advertised} cigarettes or any other tobacco^{products throughthat medium} atrd no person shalt take^part in^{anyadvertisement which} directly or indirectly suggests or^{promotes theuseor} consumption ofcigarettes^{or any other tobacco products.}

¶148

(2) No person, for any direct or^{indirect pecuniary benefit,} shall

¶149

(a) disptay, cause to display, or permit or authorise to display any aclvertisement ofcigarettes^{or anyother tobacco product; or} (b) sell or cause to sell, or Pe.mit or^{authoriseto sell a filmor} video tape containing advertisement^{oF cigarettesor anyother} tobacco product; or

¶150

(c) distribute, cause to distribute, or^{permit or autho.ise to} distribute to the public any^{leaflet, hand-billor documentwhich} is or which contains an^{advertisementof cigarettesor any othel} tobacco product; or

¶151

(d) erect, exhibit, fix or retain upon or over^{anyland, buitding,} wall, hoarding, frame,^{post orstructure or upon or in any vehicle} or shall display in any^{manner whatsoever in anyplaceany} advertisement ofcigarettes^{or anyother tobacco product:}

¶152

Provided that this sub-section^{shall not applyi-o relation} to-

¶153

(a) an advertisement of cigarettes or any other^{tobacco product} in or on a package containing^{cigarettesor any other tobacco} product;

¶154

(b) advertisement of cigarettes or any^{other tobaccoproduct} which is displayed at the etrtrance^{or inside a w.uehouse or a} shop where cigarettes^{and any other tobaccoproductsare} offered for distribution^{or sale.}

¶155

(3) No person, shall, under a contmct or otherwise^{promote or}

¶156

agree to promote the use^{or consumPtionof}

¶157

(a) cigarettes or any other tobacco^{product; or}

¶158

(b) any tmde mark or brand name of^{cigarettesor anyother} tobacco product in exchange^{for a sponsorship,gift, prize or} scholarship^given or^{agreedtobe givenbyanotherperson."}

¶159

"20. Punishment^{forfailure to give specified warningand} nicotine and tar contents.-

¶160

(1) Any person who produces or^{manufactures cigarettes or}

¶161

tobacco products, which do rlot^{contain, either on thepackage or}

¶162

¶163

KI,.I Crl.P. Na li2 of2020 & batch

¶164

on their label, rhe specified waming and the nicotinc and tar contents, shall in the case of first conviction be punishable with imprisonmenl for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction, with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees.

¶165

(2) Aly person who sells or distributes cigarettes or tobacco products which do not contain either on the package or oo their label, the specified rvaming and the nicotine and tar cotrtents shall in the casc of first conviction be punishable with imprisooment for a term, which may extend to one yeaj, or with hne which oray extend to one thousand rupees, or with both, and, for the second or subsequent convictioo, with imprisonment for a term which may extend to two years and with fine^q,hich may extend to three thousand rupees."

¶166

"7. Restrictiotrs on trade atrd commerce in, and production, supply ard distribution of cigarettes and other tobacco products.

¶167

(1) No person shall, directly or indirectly, produce, supply or distribute 6 cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label such specified waming including a pictorial waming as may be prescribed.

¶168

(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bcars thereon, or on its label, the specified lvaming.

¶169

(3) No person shall impo( cigarettcs or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unlcss every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified waming.

¶170

(4) The specified waming shall appear on not less than one of the largest panels ofthe package in which cigareftes or any other

¶171

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KL.J crl-P- No-ltz of2020 & bdtch

¶173

tobacco products have been^{packedfordistribution,sale or} supply for a valuable consideration.

¶174

(5) No person shall, directly or indirectly,^{produce, supply or} distribute cigarettes or any oth€r^{tobacco products unless every} package of cigareftes or any other tobacco^{products produced,} supplied or distributed by^{himindicates thereon,or on its label,} the nicotine and tar contents on each^{cigarette or as the case may} be on other tobacco^{productsalongwith the maximum} permissible limits thereot Provided that the^{nicotineandtar} contents shall not exceed^{the maximum permissible quantity} thereofas may be^{prescribedby rules made under thisAct."}

¶175

RELEVANT^{PROVISIONS UNDER F.S.S. Act:}

¶176

'58.^{Petralty forcontraventionsfor whichno specificpenalty} is provided.-Whoever contravenes^{any provisions ofthisAct or} the rules or regulations^{made thereunder,forthecontraveltion} of which no^penalry has been^{separatelyprovidedinthis} Chapter, shall be liable^{to a penalty which mayextend to two} lakh rupees."

¶177

"59. Puuishment^{for unsafefood.-Arrypersonwho,whether} by himself or by any other^{personon his behalf,manufactures} for sale or stotes or sells or^{distributesor imports any article of} food for human consumption^{which is unsafe,shallbe} punishable,-

¶178

(i) where such failure or contravention^{does not resultin injury,} with imprisonment for a term^{which mayextendto sixmonths} and also with fine which^{may extend toonelakhrupees;} (ii) where such failure or contravention^{resultsin a non-grievous} iDjury, with imprisonment^{for a term whichmayexte[d to one} year and also with fine which may extend^{to three lakhrupees;} (iii) where such failure or contravention^{resultsin a grievous} iojury, with imprisonment^{fora term whichmay extendto six} years and also with fine which may^{extend to five lakhrupees;} (iv) where such failure or contravention^{results in death, with} imprisooment for a^{term which shallnotbe less thanseven} years but which may extend to imprisonment^{for lile and also} with fine which shall not be^{less thanten lakh rupees."}

¶179

¶180

KL./ Crl.P. no !i2 of2A20 & hdt.h

¶181

RELEVANT PROVISION UIIDER E.D. ACT

¶182

"3. Penalt;--.. Arlv pclson disobeyillg alry legulation or ordcr made under this Act shall be deemed to have commitred an offence punishable under section 18E of the tndian Penal Codc (45 ot 1860 )."

¶183

RELEVANT PRO,'ISION T]NDER D.M. ACT:

¶184

"51. Punishment for obstruction, etc.-

¶185

(l) Whoever, without reasonable cause- (1) Whoever, withoul

¶186

reasonable cause-r'

¶187

(a) obstructs any officer or employee ofthe Central Govemment o. the State Govemment, or a person authorised by the National Authority or State Authority or District Authorify in the discharge of his functions under this Act; or

¶188

(b) refuses to comply with any direction given by or on behalf of the Cenffal Govemment or the State Govemment or the National Executive Committee o. the State Exccutive Committee or thc District Autho.ity under tllis Act, shall on conviction be punishable with imprisonment for a term which may extend to onc year or with fine, or with both, and if such obstruction or relusal to comply with directions results in loss of lives or immrnenl danger thereof, shall on conviction be punishabte with imprisonment for a term which may extend to two years. flotcs on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction oi the fulctions under the Act, fa]ss claim for reliet misappropriation of relief material or funds, issua[ce of false warning, failure of an officff to perform the duty imposed on him under thc Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences."

¶189

The /ls involved in the present petitions is no more res

¶190

integra. A leamed Single Judge of the High Court of Judicature al-

¶191

Hyderabad for the State of Telangana and the State of Andhra Pradesh

¶192

in Chidurala Shyamsubder v. State of Telanganal had an occasion to deal with the issues involved in the present criminal petitions. After referring to various provisions of IPC, FSS Act, COTP Act and also the principle taid down by the Apex Court and other High Courts

¶193

n. Crl.P No.3?lt of20 tg & barch, decided on 27.08.2018

¶194

¶195

KL.J C,l.P- No t52 ol2020 & batch

¶196

in several^judgments, the leamed^{Singlc Judge hadframed the issues,}

¶197

which are as under

¶198

"l) Whether the respondent/^{SubJnspectorof Police, is competentto} investigate into the offence^punishable under Sections^{54 and 59(l) of} FSS Act?

¶199

Whether the petitioners in all the^{petitionsarefoundcommittingany} act with malicious intention, with knowledge^{and reasotrto believe that} such act likely to spread the^{infectionof any diseasedangerous10 life?} Aod whether the petitioners selling or^{offering or exposing forsaleas} food or drink, any article^{whichhasbeenrendered or has become} noxious or is ln a state unfit for food^{or drink orreasonto believe that} the same is noxious as food or^drink? If^{so, are theyliable to be} proceeded for the offence punishable under^{Sections2'10 and273} IPC.?"

¶200

After an elaborate^{discussionand on considerationof} various aspects, the leamed^{SingleJudgehas hetdthat the police} cannot take cognizance of the^{offence,to investigateinto and file} charge sheet against the accused^{thereinfor the offencepunishable} under Sections - 54 and 59⁽¹⁾ of^{FSS Act, as theywerenot} empowered under the said Act to^{launch the prosecution, but only} Food Safety Officer appointed^{by the Govemment alone is competent} to launch prosecution for^{thosetwooffences. With the said findings,} the learned Srngle Judge^{hasquashedthe proceedingswhere the} offences are under Sections -^{54 and59 of FSS Act initiated by the} police.

¶201

In the very same^{judgment, the learnedSingleJudgefurther} held that chewing tobacco^{and khaini are not the'food'withinthe} definition of Section^- 3O ofthe^{FSS Act and themanufacture,sale or}

¶202

¶203

l(i .t Crl I' ') l5! ol 2t)2i,t bdtth

¶204

exposing lor sale o1'tobacoo etc., is govcmed by the provisions of COTP Acl, but lrrl b1'FSS Act aod so also thc provisions otIPC. The respondents - police are incompetent to investigate the oifence punishablc under Sections - 54 and 59 (1) of the FSS Act and allegations in the charge sheet coupled with the statements do not disclose the comrlission ofthe offence punishable undcr Section - 273 of IPC sirce transportation of noxious food is not included under Section - 273 ol IPC. The act done by the accused therein i.c., transportation ol khaini and chewing tobacco though dangerous to human lifc, it wolrld not spread or infect or cause any disease on account of transportation and if those products are consumed by human being, it rvould certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco by itself is not an offeoce under Section - 270 of IPC. Pan Masala is not a tobacco product k) fall rvithin the purview of COTP Act. Thcrefore, the provisions of lhe^('OTP Act have no application, thereby registration of crime on the ground of violation of Sections - 7 (1) (2) (l) (5) and Section - 2(r ol⁽ OTP Act is an illegality. The leamed Single Judge further held that registration of cases for the offence under Section - 20 (2) read wirl) 7 (2) oICOTP Act is illegal. With the said findings, the Ieamed Singlc Judge has quashed the crimes and calcndar cascs in the said^judgment.

¶205

t'1

¶206

KL.J Crl P No.I5) of2020 & batch

¶207

In Sri Jaganath Enterprises Eluru^Vasadhi Tripati Rao

¶208

v. The State ofAndhra Pradeshs, a leamed Single Judge ofthe^High Court of Andhra Pradesh at Amaravti had also^{an occasion} to^deal with the said issue. After referring to the contentiors of^{the respective} parties therein, various provisions of IPC, FSS Act, COTP Act^and relying on the principle laid down in Anend^{RamdhaniChaurasie3,} Joseph Kurian v. State of Kerala6, Salyed Hassan^Sayyed Subhanr, M/s. Pepsico India lloldings^(Pvt) Ltd.,^{v. Stateof U.P.7,} Sanjay Anjay Stores v. Union of IndiaE, Boop Singh^{Tyagi v'} Statee, State of Haryana v. Bhajan Lalr0 and Chidurala Shyamsubdera, the learned Single^{Judge has quashedthe FIRs/} Calendar Cases. The leamed Single Judge^referring to^{the lawlaid} down in Chidurala Shyamsubdera held that^{despitethe said} authoritative pronouncement of law, status^{quo continues.Thesaid} judgment attained finality. Even then, the police are registering cases against accused on the very same^allegations for^{the verysame} offences.

¶209

i) Referring to the provisions of Sections -^{153,188,269,270,} 271, 272, 273, 284, 328, 353 of IPC, the^{leamed Judge in} Sri Jaganath Enterprisess held that the offences^{registeredunderthe} said Sections are not maintainable. It^{further held thatthe provisions} of the COTP Act can only be^pressed into^service in the^limited

¶210

'.2020^{(l) ALr (crl.) 215(APHC)}

¶211

r99s (r) scJ 27?

¶212

'.^{201l(2)crimes250}

¶213

2017 scc onlinc cal 16323 e 2oo2 ctr.L.t.2812

¶214

'o.^{1992supp (l)SCC 335}

¶215

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KI,.J Crl.P. No 152 oJ 2024 & batch

¶217

circumstances only where there is violation ofSections - 1,5,6,1 and 10 ol the COTP Act. By refening to the principle laid down by the Apex Court in Bhajan Lalr0 and M/s, Pepsico India Eoldings (Pvt) Ltd.7, the leamed Single Judge has quashed the proceedings h vanous crimes / calendar cases.

¶218

Another learned Single Judge ofthe High Court ofAndhra Pradesh at Amaravatr in V. Nageswara Rao v. State of Andhra Pradeshrt had also an occasion to deal with the said issue and agreed with the principle laid down in Chidurala Shyamsubdera.

¶219

In Sayyed Hassan Sayyed Subhanr, the Apex Court while dealing with legality of thc order passed by the Bombay High Court in a batch of criminal writ petitions and criminal applications, which were filed challenging the registration of FIRS for the offences under Sections - 188, 272, 2'13 and 378 of IPC and Sections - 26 and 30 of the FSS Act where^(herc is an allegation of transportation and sale of Gutka / Pan Masala etc., held that the judgment of Bombay High Court is contrary to the provisions of the Act and law laid down by it. With thc said finding, the Apex Court remitted the matter to the Bombay High Court for fresh consideration on the issue that whether the aforesaid offences are made out in the FIRs, which are subject matter of the cases pending before the Bombay High Court.

¶220

rr 2020 Soprcme (AP) l4!

¶221

¶222

KL,J ctl.P. No- 152 of2020 &batch

¶223

[n view of the authoritative^{pronouncement} of law in the aforesaid^judgments, as discussed^{above,comingto the facts of the} cases on hand, the allegations against^{the accused in respectivecases} are transportation, possession, storage,^{sale and purchaseof banned} products viz., tobacco / tambaku /^gutka / khaini /^zarda I^{pan masala} etc., respectively. In Chidurala Shyamsubdera,^{the leamedSingle} observed that transportation of chewing^{tobaccoor khainior pan} masala do not constitute an offence^{punishable under Section- 270 of} IPC and that manufachrring ofpan^{masalais notrncludedin Section-} 273 of IPC and, therefore, the same^{is notan offence since it is nota} noxious food. The leamed Single Judge^{hasfurtherobservedin the} said^judgment which is as under:

¶224

"....The act done by the^{petitionersi.e.,} transportation of khaini and^{chewingtobacco} though dangerous to human life, it^{would not} spread or infect or cause any disease^{on accountof} transportation and if those^products are^consumed by human being, it would certainly^{cause damage} to the health. Therefore, transportation of^khaini or chewing tobacco is not by itself is not^an offence under Section - 270^{of IPC ardit would} fall within Section 270 of IPC."

¶225

Section - 272 of IPC makes^{punishablean offence} by^a person, who adulterates any article of food or drink.^{Therefore,the} said section would only come into^play if^{foodor drink is adulterated.} There is no dehnition of 'adulteration' in IPC. The defrrition^of 'adulterant' is found in the provisions of the FSS Act.^{Section- 3 (l)}

¶226

¶227

KL.J Crl.P. l'o lj2 af 2D0 & bnt.h

¶228

(a) of the FSS Act deals with 'adulterant' which means a material whiqh could make the food' unsafe or sub-standard or mis-branded. According lo Section - 212 of lPC, if a material is used to make the food unsafe/sub-standard or mis-branded, then only the offence would be attracted. Whereas, as discussed supra, the allegation ln the present batch of cases is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco / tambaku / gfika / khaini / zarda / pan masala etc., respectively. Therefore, according to this Court, the said allegation does not fall within the ambit of Section - 272 of lPC. Thereforc, I agree with thc principle laid down by the lcamed Single Judges of the High Court of Andhra Pradesh in Chidurata Shyamsubdera, Sri Jaganath Enterprisess and Y. Nageswara Raoll.

¶229

'16. In Joseph Kurian6, the Hon'ble Supreme Court held that for Section - 2'12 tPC to be attracted, the following should be present. (1) That the article involved was food and drink meant to be consumed by livc pcrsons; (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 krew that such article cannot be sold as food or drink. The Hon'blc Supreme Court clearly held that the offence is completed on thc introduction of the adulterant. 'Adulterant' would mean that a material which is mixed to make the 'food' unsafe or drink unsafe. In the present case on hand, tobacco is not a food or

¶230

¶231

KL,J Crl P No t52 of 2020 &batch

¶232

drink and what is stated to be mxed in it is not clearly established by any cogent matcrial as an 'adulterant' for the offence under Section^-

¶233

272IPC to be pressed into service.

¶234

As far as Section - 328 of IPC is concerned,^{in the same}

¶235

judgment it was held as follows:

¶236

"10. In order to prove offence under^{Section328 the} Prosecution^is required to prove that the substance in^question was a^poison. or^any stuperyiDg, intoxicatitrg or unwholesome drug etc,^{that theaccused} administered the substanc€ to the complainant or^causedthe complainant to takc such substance, that he did so with intent^{to cause} hurt or knowing it to be likcly 19 that he would theroby cause hurt,^or with the intention to commit or facilitate the commission^{of an offence.} It is, therefore, essential for the^p.osecution to^{prove that the accused} was dtrectly responsible for administering^poison etc. or causing^{it to} be taken by any person, through another.....-."

¶237

Tobacco does not fit into this defurition

¶238

Section^- 273 of IPC deals with sale ofa noxious^foodor drirk, and as per which, whoever sells,^{or offers orexposesfor sale,} as food or drink, any article which has been^{rendered or has become} noxious, or is in a state unht for food or drink,^{knowing or having} reason to believe that the same is noxious^{as food or drink,shall be} punished with imprisonment specified therein. Therefore, if a^person offers for sale a "food or dri-nk" any article which^has become^noxious or is in a state of unht for "food or drink".^{Thus,the said section} would apply, when an article which has become noxious^{or which has} been rendered noxious. It also applies^{to foodor} drhk^{only. As held} in Sri Jagenath Enterprises5, the word'noxious'is^{not dehned in}

¶239

¶240

KL,] C.l P No 152 af202A & barch

¶241

IPC or in FSS Act. As per the dictionary meaning, the word 'noxious' is harmful, deleterious, injurious, poisonous etc. As stated above, the allegation in the entire batch of present criminal petitions is with regard to transportation, possession, storage, sale and purchase of banned products vrz., tobacco / tambaku / gutka / khaini I zard.a / pan masala etc., respectively. Therefore, according to this Court, the contents of the complaint/charge sheet lacks the ingredients of Section - 27 3 of IPC.

¶242

As far as sectior - 188 IPC is concemed , as per the settled law on the subject. belore an accused is charged, there must be; an order duly promulgated by the public servant; the public servant must have the lawful authorily to promulgate the order; the person flouting the same should har-e knowledgc about the order directing him to abstain fiom the act; he must disobey the said order with the kmowledge; and such disobedience of the duty promulgated order should cause a danger to the human life etc. Lr Boop Singh Tyagi'ga Division BerLch of AlLahabad High Court held that right to promulgate the ordinance/order is also an issue which is being raiscd, because under the FSS Act, thc Commissioner of Food Safety alone has the authority to pass the orders only if the afticle of 'food' can causes danger or is injurious to hcalth.

¶243

¶244

KL,J Crl.P No l5 2 of 2020 & batcl

¶245

In N.T. Rama Rao rz. The State of A.P., rep. tty Public Prosecutorl' while deating with the olfences^{under Sections - 188} and 283 ofIPC, the lcamed Single Judge^{of the combinedHigh Court} ofAndhra Pradesh held as under:

¶246

'5) Even if the allegation that the petitioner conducted public meetings at three road^junctions contrary to the permission accorded for conducting of a pubtic meeting only at one specified^{place is} true, suoh a direction under Section 30 of^the Police Act, 186l could have been^{givenonly by} the Superintendent or the Assistant SuPerintendent of Police of the District but not by^any of^their subordinates. If such a^permission is^granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (l)^(a) of Code of Criminat Procedure mandates that the complaint in^this regard has to be made by the Public^servant concemed or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal ProcedureIn the present case, the charge sheet was^Frledby the Sub Inspector of Police,^who could^nothave been the authority to^{grant permission} for^the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory^provision of Section 195(l)(a) ofCode of Criminal Procedure.

¶247

That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviouslyⁱⁿ consequence to the alleged offence under^Section 188 of Indian Penal Code and is not^an

¶248

rz. CnmiDal Petition No.5323 of2009, decided on l?.09.2009

¶249

¶250

KLJ CnP No 152 af2020 & hatch

¶251

independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or ifljury to atry person. [n so far as the obstruction rn any public way is concerned, rvhich can also be covered by Sectioo 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the trafhc^jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted aad if the gathering for that public mceting resulted in any inconvenience by way of obstructing the traffic, the same cannot be consrdered to be with necessary grill.l mens rea to construe the existence of an oflence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have auy reasonable basis and in any view, the complaint/charge sheet being in violarion of Section 195 (1) (a) ofCode olCriminal Procedure, has to fail.

¶252

As the complaint has failed due to its unsustainability, the proceedings in their etrtirety have to fail, though the 1'1 accused alone approached this Court by way of this Criminal Petition."

¶253

In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari Districtr3, wherein by relying on various judgments including N.T. Rama Raor2 and also the guidelines laid down by the Apex Court in Bhajan Lalr0 more particularly, guideline No.6, which says that

¶254

'r.^{Criminal pctitiooNo. t5248of20t6,decided} on 26.10.20i6

¶255

¶256

KL.J Crl P No.l52 of2020 & batch

¶257

where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act^(under which a criminal^proceeding is instih.rted) to the instihrtion and continuance of the^proceedings and/or where there is a specific provision in the Code or the concemed Act, providing efficacious remedy to redress the^grievance of the party, it was held that the proceedings in the said C.C. were quashed by exercising power under Section - 482 of Cr.P.C. It was also further held that the proceedings shall not be continued due to techrical defect of obtainhg prior permission under Section - 155⁽²⁾ of Cr.P.C. and taking cognizance on the complaint ftled by^V.R.O. and it is against the purport ofSection - 195 (1) (a) of Cr.P.C.

¶258

Y ide Notification No.50I,/FSS-1/2020, dated 06.01.2020, the Commissioner of Food Safety, Telangana Dkectorate of Institute of Preventive Medicine, Public Health Labs and Food^(Health) Adminishation, Narayanguda, Hyderabad, restricted the manufacture, storage, distribution, transportation and sale of^gutka /^pan masala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure tobacco, khaini, kharra, scented tobacco / flavoured tobacco or by^whatever name locally it is called packed in sachets / pouches /^package in the entire Stage of Telangana under FSS Act, 2006. It is for one^year.Vide Notification No.505,/FSS- i/2021, dated 06.01.2021, the same was extended for one more year. As per the information fumished and instructions received, several writ petitions were hled challenging the said

¶259

¶260

KI, J Cn P. No-li2 aJ 202t) 3. bdtch

¶261

Notifications bsfore this Court as well as the Hon'ble Supretne Courl. A Division Bench of this Court declined to entertair somc writ petitions on the ground that the Hon'ble Supreme Court seized of thc said issue. It is also relevant to note that the Hon'ble Supreme Court remanded back thc matter to this Court. Therefore, such a notification can only bc issued for cmergency situations and for prohibiting the distribution and sale of any article of a food cannot be lost sight ol Therefore, in view of the law laid down in the above^judgments including the^judgments in Chidurata Shyamsubdera, Sri Jaganath Enterprisess and V. Nageswara Raort. According to this Court, Section - 188 of IPC will not attract to the allegations leveled against the petitioners herein in this batch of criminal perifions.

¶262

As far as Section - 328 of IPC is concemed, it deals with causing hurt by means of poison, etc., with intent to commit an offence. As per the said provision, whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he wilt thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefore, there should be adrninistering poison, intoxicating etc., with irtenl to cause hurt to such person or with intent to commit or to facilitate tbe commission of an offence or knowing it to be likely that he will

¶263

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KL,J Crl-P. No-152 of2020 & bdtclt

¶265

thereby cause hurt. As stated above, the allogations in the entire batch of criminal petitions are lacking. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 328 ofIPC.

¶266

As far as Section^- 336 ofIPC is concemed, it deals with an act endangering life or personal safety of others, and as^per which, whoever does any act so rashly or negligently as to endanger human Iife or the personal safety of others, shall be^punrshed with imprisonment of either description for a term which may extend to tfuee months, or with hne which may extend to two hundred and fifty rupees, or with both. In the complaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to^this Court, the contetrts of the complaints / charge sheets lacks the ingredients of Section - 336 ofIPC.

¶267

As far as Section - 420 of IPC is concemed, it deals with Cheating and dishonestly inducing delivery of property. There is no such inducernent either at the inception or at a latff stage. Thus, the contents of complaints / charge sheet lack the ingredients of Section^- 420 of IPC.

¶268

As far as Section - 269 of IPC is concemed, it deals with negligent act likely to spread infection of disease dangerous to life, and as per which, whoever unlawfully or negligently does aly act

¶269

¶270

KI -/ C .?. No 152 of t02t) & but.h

¶271

which is, and rvhich hc knows or has reason to believe to bc, likely to spread the infection of any disease dangcrous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or rvith hne, or with both. But, a perusal of the contents of complaints / charge sheets in the present batch of cases, such ingredients are lacking and, therefore, Section^- 269 of IPC does not arise in the present batch of cases.

¶272

[n vieu' of the above said discussion, according to this Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections - 269, 270,271,272 and 2'13,328,336 and 420 of IPC are athacted to the cases in this batch.

¶273

As far as the offences under FSS Act is concemed, as already discussed above, in Chidurala Shyamsubdera, the learned Single Judge following the guidelines laid down by the Hon'ble Supreme Court in Bhajan Lalt0 held that the police are ircompetent to take cognizance of the offences punishable under Sections^- 54 and 59 (l) olthe FSS Act, investigating into the offences along with other offences under thc provisions of the IPC. It was further held that hling charge sheet is a grave illegality, as the Food Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down undcr Sections - 4l ar:d 42 of FSS Act. In the present case, the police have registered the crime for the offences

¶274

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KL,J Ci.P No 152 of2020 &batch

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utrder Sections - 188,270 and 273 of IPC. Therefore, in the^present batch of cases, entertaining the^{complaints/ fili-ng the chargesheetsby} the police is contrary to the prtrciple laid down in Chidurala Shyamsubdera.

¶277

With regard to the offences under COTP^Act, it^{is relevant} to mention the objects and the reasons of^{the said} Act itself^clearly state that the act is meant to^{prohibit theadvertisementof, and to} provide for the regulation of trade and commerce in, and^production, supply and distribution of, cigarettes and other^{tobacco productsand} for matters connected therewith or^{incidentalthereto. A readingof the} said objects of the said Act would reveal^{that a totalban} of^tobacco products was not envisaged by the said Acl, The Parliament merely felt it expedient to control the advertisement^andsale of^tobacco products. As noted earlier in the order, Section - 3^(p) of the COTP Act and the schedule therein dehne tobacco^{products. Panmasala,} gutkha and chewing tobacco are included in the definition of tobacco products. Section - 5 of the COTP Act deals with^prohibition of advertisement of cigarette and other^{tobaccoproducts 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, and no^person shall be a^{part of any advedisement.}

¶278

Section^- 7 of the COTP Act^{dealswiththe impositionof} restriction on the sale, trade, commerce of^{tobacco products unless}

¶279

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KI,.J Crl.P. No 152 af 2UA & barch

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every package ol cigarette or tobacco product contains a specified warniug (pictorial or otherwise). Section - 4 of the COTP Act, bans smoking m public places. [n addition, Section - 6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of l8 years are in an area withrn 100 yards of any educational institution.

¶282

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. 22 What is barred is merely the sale of these products lo a person, who is below the age of l8 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections - 5 and 7 of the COTP Act, deal with the advcrtisement and the waming, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, according to rhis Court, the above said allegations of transportation, possession, storage, sale and purchase of bamed tobacco products will not attract the offence under Section -7 of the COTP Act

¶283

As far as Section - 20 (2) ofthe COTP Act is concemed, as stated above, the allegations against the petitioner in respective complaints / charge sheets are that they were tmnsporting, possessilg, storing, selling and purchasing the banned tobacco products to the cuslomers illegally in order to gain wrongful profits. In view of the said allegation, it is apt to refer to Section - 20 (2) of the COTP Act

¶284

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KL.J Crl.P. No 152 o] 2020 & botch

¶286

for better appreciation of the case and to decide the issuc in^question,

¶287

and the same is as undet:

¶288

"20. Putrishment for failure^{to giYe specified} werning and nicotitre aDd tar contents-(l)...

¶289

(2) Any person who sells or distributos cigarettes or tobacco products which do not contain^{either on th€} package or on their [abe[, the specified waming and the nicotine and tar contents shall in the case of^first convictiol be punishable with imprisonment for^a term, which may extend to one^year, or with hne^{which may} extend to one thousand rupees, or^with both,^{and,for the} second or subsequent conviction, with imprisonment^fora term which may extend to two^years and^{withfine which} may extend to three thousand rupees."

¶290

Thus, Section^- 20 of COTP^{Actdealswith punishmentfor} failure to give specified waming and^{nicotine and tarcontents. But, in} the complaints / charge sheets, there is no^{allegationagainstthe} petitioners that they were carrying on trade or^{commerce in} contraband or any other tobacco^{productswithout label and specified} warning on the said products. In view ofthe same,^{the contentsof the} complaints / charge sheets lack the ingredients of^{Section - 20 (2) of} the COTP Act. Even, there is no allegation^{that the seizedproducts} do not contain labels with statutory waming.^{Thus, registering the} crimes for the said offence against the^{petitioners is notonlycontrary} to Section - 20 (2) ofCOTP Act, but also conhary^{to the principle laid} down in Chidurala Shyamsubdera. In^view of^{the same,theoffence} under Section - 20^(2') of COTP Act is^also liable^{to be quashed} against the petitioners. I once again^{reiteratethat I agree with the}

¶291

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KL,J Ctt P No. t52 of2A20 & batch

¶293

principle laid down by the leamed Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubder{, Sri Jaganath Enterprisess and !'. Nagesrvara Raorl.

¶294

For the lbrcgoing discussion and the authoritative principle of law, Criminal Petition Nos. 3768, 3879, 4046, 4077, 4098, 4099, 4100, 4102, 4141, 415 I, 4157, 4182, 4187, 4247, 4249, 4251, 4258, 4262, 427't, 4405, 4415, 4542, 46t5, 4640, 4681, 472't, 4715 and 4825 of 2021 are allowcd quashing the proceedings against the petitioners therein in the respective crimes mentioned thereil. Since the proceedings ir thc aforesaid Criminal Petitions are quashed against the respective petitioners, the respective Station House Officers / Investigating Officers are hereby directed to retum the seized properl_v / r.ehicles on proper identification and verification of ownership under due acknowledgment,

¶295

Further, Criminal Petition Nos. i52, 153, 155,162 & 5826 of 2020, 3498, 3500, 3509, 3514,4070,4110, 4119, 4140, 4178, 4194, 4216, 4230. 4361, 4612, 4622 and 4632 of 2021 are also allowed quashing the proceedings against the petitioners therein in the respective Calendar Cases mentioned therein. Since the proceedings are quashed, the respective petitioners are at liberfy to file appropriate applications before the concerned Magistrate for rehrm of the seized property / vehicle and the Magistrate shall consider the same in accordance with law.

¶296

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KL.J CtL P No tt) o12020 aborh

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As a sequel, miscellaneous^{petitions,if any,pending in all the}

¶299

Criminal Petitions^{shall stand closed.}

¶300

K. LAKSHMAN, J

¶301

osru [rLY, 2021

¶302

Ngltg:^{L.R- copy to be marked} (B/o.) Msr

Naba Krishna Dutta v. The State of Telangana

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Naba Krishna Dutta v. The State of Telangana

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