Allowed

Mohd Habeeb Hussain v. The State of Telangana

Telangana HC18 Sept 2024CRLP/10945/2024

Case brief

AI extract

What is this about?

A single judge, adopting the reasoning of an earlier order from April 5, 2024, allowed the criminal petition. The court quashed proceedings against the petitioners for alleged violations of IPC and COTPA related to gutka and tobacco products, leaving the NDPS Act charge pending.

What did the court decide?

Proceedings in Crime No. 330 quashed to the extent of IPC and COTPA charges; Investigation Officer directed to return seized property.

Mohd Habeeb Hussain Vs The State of Telangana — Cheque Dishonour | Telangana HC (2024)

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[³³⁸⁵ ]

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tN THE HIGH COURT^{FORTHE STATEOF TELANGANA} AT HYDERABAD

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WEDNESDAY,^{THE EIGHTEENTHDAYOF SEPTEMBER} TWO THOUSAND^{ANDTWENTY FOUR}

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PRESENT

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THE HON'BLE SMT.^{JUSTICE K. SUJANA}

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CRIMINAL PE^{TITIONNo: 1ff145 ot 2024}

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Between:

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Mohd Habeeb Hussain,^{S/o Mohd Ahmed, Age:35years, Occ:Business,-R/-o} ff.-r.io.e-i5-1b3/g, Rasheeo^{Colony, Shashtripura, Mailaramdevpally, R'R} District.

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Shaik Masthan Vali,^{S/o Shaik Pedda Mastan Vali, Age: 26-yrs, Occ: Driver'}

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nyo fl.no.Za-383, Sweeper Colony, Vinukonda, Guntur of A'P'

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Shaik Bujii, Sio^{Shaik Hussain,Agel} Q vI9,.qcg:^{Cvcle.shop.workerRi'/o}

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o6;t"bdl;y, Vinukonda, Guntur of A P.1. Mohd Habeeb Hussain,

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...Petitioners/Accused^{No.1,2& 3}

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AND

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The State of Telangana,^{Rep. by its Public Prosecutor,High Court at} Hyderabad.

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2- V.Sandeep, Sub lnspector^{of potice,Habeebnagar' Hyderabad'}

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...Respondents

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Petition under section^{528 of cr.P.c praying that in the circumstances} stated in the^{Memorandumof Groundsof criminalPetition,the High court may} u"pt.a."otoquashtheproceedingsagainsttheP.etitioners/AccusedNo.lto3 in ir.No.gso ot^{2o24 of p.s. Habeebnagar, Hyderabad pending on the file of the} Honourable XVI ACMM,^{Hyderabad in the interest of iustice'}

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I.A. NO:ZOF 2024

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Petition under Section^{528 of cr.P.c prayingthat in the circumstances} stated in the Memorandum^{of Groundsof criminal Petition,the High courtmay} U" pi""."i to stay all^{furtherproceedingsinclu-ding the appearance. of the} petiiioneri Accused No.1 to 3 in cr.No. 33012024 of P.s.^Habeebnagar, Hyderabad^{pending on the file of the Honble XVI ACIMM,Hyderabad}

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This^petition coming on for hearing, upon perusing the lVlemorandum of Grounds of Criminal petition and upon h earing the arguments of Sri NAND KISHORE YADAV, Advocate for the peti tioners and the Sri ARUN KUMAR DODDLA, Additional public prosecutor on behalf of the Respondent No.1 and None Appeared for the Respondent No.2. The Court made the following: ORDER

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\ \

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THE HONOURABLE^{SMT. JUSTICEK. SUJANA}

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CRIMINAL PET^{ITION No.1O945of 2o24}

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ORDER:

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This Criminal Petition^{is filed under Section 528 of the} Bharatiya Nagarik Suraksha^{Sanhita (for short 'BNSSJto quash} the proceedings^{againstthe petitioners/ accusedNos'1 to 3 in} Crime No.330 of^{2024 ofHabeebnagarPolice Station,} Hyderabad, registered for the^{offences punishableunder} Sections i25, 274, 275^{tead with 3(5) of the Bharatiya N,vaya} Sanhita (for short^{BNS) and Section20(21 of Cigaretteand} Other Tobacco Products^{Act (for short 'COTPA')'}

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Heard Sri Nand Kishore^{Yadav, learned counselfor the} petitioners as well as Sri^{Arun KumarDoddla, learned} Additional Public^{Prosecutor forrespondent No' 1-State'} Perused the record.

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Learned counsel for the^{petitioner submitted that the} matter is squarely^{coveredby the orderdated l5'O4 '2024 in} Criminal Petition^{No.23O9of 2024.}

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Learned Additional^{Public Prosecutor also submittedthat} the issue in the^{present criminal petition is covered by the} earlier order in^{the abovecriminal petition'}

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.-ia. ,i

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In vieu' of the said^{representationand as the matler ls} squarely covered by the^{order in the abovecriminalpetition'} this criminal^{petitionis allowed in terms of the abovesaid order,} adopting the^{reasoningcontained thereinThe proceedings} against the^{petitioners/ accused Nos.1to 3 in CrimeNo 330 o[} 2024 of Habeebnagar^{PoliceStation, Hyderabad,are hereby} quashed. Further, the Station^{House Officer/ Investigating} Officer is hereby directed^{to return the seized properfy on proper} identification and^{verification under due acknowledgrrent'}

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Pending miscellaneous^{petitions, if any, in this Criminal} Petition shall also stand^closed

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//TRUE COPY//

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Sd/- V. HARI^P RASAD ASSISTANT REGI SIRAR v

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SECTION OFFICER

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To,

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1 The Station House Officer,^{Habeebnagar Police Station, Hyderabad'} 2 Two CCs to the Public^{Prosecutor,HighCourt for the State of Telanganaat} Hyderabad.^(OUT)

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1. One CC to SRI^{NAND KISHORE YADAV, Advocate IOPUC]} 4. Two CD Copies

CD/kam

\x-

HIGH COURT

DATED:1810912024

ORDER

CRLP.No.10945 of 2024

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:,1 ,.::.-
i., B 8 t{[! 2ti1
_' !,

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ALLOWING THE CRIMINAL PETITION

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crd'L ff,.**

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THE HONOURABLE SMT. JUSTICE^{K. SUJANA} CRIMINAL PETITION^{No.23O9 OF 2024}

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ORDER:

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This Criminat Petition is filed^{underSection482 of theCode} of Criminal Procedure,^{1973 (for short 'Cr'P C'J to quashthe} proceedings against the^{petitioners/ accused Nos-1and 2in} S.C.No.24 of 2027,^{on the file of the learned VIII Additional Chief} Metropolitan Magistrate,^{Hyderabad, registered for'the offences} punishable under Sections^{188,269, 27O,272,273of the Indian} Penal Code, 186O^{(for short 'the IPC'), Section 8 (c) read with} Section 20^{(b) (ii) (B) of the Narcotic Drugsand Psychotropic} Substances Act, 1985^{(for short 'theNDPS Act')and Section2O (2)} of the Cigarettes and^{Other Tobacco ProductsAct, 20O3 {for short} 'the COTP Act').

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Brief facts of the^{caseof the petitioners is that on 27 'O3 '2O2O} while police were in^{patrolling, they found the petitioners} possessing, selling and^{purchasing the bannedproducts viz', gutka} and ganja respectively,^{for which, the Policeregistered a case} against the^{petitioners for the offencesalleged againstthe} petitioners are that Sections^{188, 269' 27O, 272 and 273 of the} IPC, Section 8^{(c) read with Section 20 (b) (ii) (B) of the NDPS Act} and Section 20^{(21 of the COTP Act, respectively Basing on the} said complaint^{the Policeregisteredthe case in CrimeNo 53 of}

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srs-J crl.P.No.23os oF 2o;a

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2O2O and afrer completion of investigation, they filed charge sheet and the same was numbered as S.C.No.24 of 2O2l on the file of the VIII Addition:r1 Chief Metropolitan Magistrate, Hyderabad.

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Heard Sri y. Bala Murali, learned counsel appea:_ing on behalf of the petitioners as well as Sri S. Ganesh, learned Assistant Public^prosecutor appearing on behalf of the respondents.

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Learned counsel for the petitioners submitted that the allegations levelled against the petitioners are vag.ue and ciid not attract any of the offence. Making his submission, he relied cn the judgment of this court vide order dated 05.07.2021 in criminal Petition No.152 of 2O20, wherein this Court quasherl the proceedings against the petitioners and he further submitte<l that the present matter is also covered by that order As sucn, he prayed the Court to allow the Criminal petition.

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Per contra, learned Assistant public Prosecutor subrnitted that he has no objection with regard to Sections lB8, 269, 2TO, 272, 223 of IpC and Secrion 20 e) of the COTP Act. The ltetitioners were also charged for the offence under Section Section 8 (c) read with Section 20 (b) (ii) (B) of the NllpS Act and he has prayecl the Court that the trial has to be conduoted for the offence punrshable under NDpS Act.

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sl(s.J ctl.P-No.23O9 OF^2O24

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RELEVANT PRO I'ISTONS UNDER^IPC:

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"188. Disobedience to^{order dulApromulgatedbg} public seruant. tuhoeuer,^{knouingthot'bg an order} 'promulgate(l bg a pubtic seruant laufullg empouered to 'promuigate suih order, he is directed to abstain from a ^cei.ain'act, or to take ceriqin proPertA in his possession or under his^{mctnagement,disobe!)s suchdtrection'} shatt, if such^{disobediencecazses or tunds to cduse} obstruction,^{annoganceor injury, or} 'isk^{of obstn:ctton'} annouqnce or^{iniuru,to onll person lawlullgemploged'} be^pinished with^{simpleimpisonment} lor^{a term uhich} ^au^{cxtendto one monlhor with frnetuhbhmag} extind to^{ttuohundredruPees,or lLith both; ond tf such} clisobedience^{causes ortrendsto cquse dongerto} human hfe,^{heatthor safetg, or causes or tends to cause} a not or'ajfrag,^{shalL bi punished uith impisonmentof} either aescA[tion Jor^{a term which mag extend to six-} ionths, or uith fie^{which mav ertendto one thousand} ntpees, or uith^both.

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F,xDlanqtion: /l is^{no, ne.essa} ry^{thal the ollender} shoulid intend^{to produce horm, or conlemplatehis} disobedience^{as likely to producelarm' It is sufficient} that he kno-s^{of theirderuhich he disobegs, qnd that} his disobedienci^{produces,or is tikelgto produce' harm'}

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nlustration:^{An order is promutgated'bg a public} seruant lawfullA^{empoweredto promulgdte} ,such^order' directing tiat^{areligiousprocessionshall not pass} do*n i.erton^{street.A knowinglg disobegs the order'} and therebg^{causesdanger of iotA has committed the} offence defned^{in this section."}

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"269. Negligent^{c,ct likelato spreadinfecli1-nof} clisease daigelous^{to tik.} -^{Whoeueruntowfullgor} negligentlA^{d'oes ong act uthich is, and ulhich he knows} or" hi" ,Jrton^{to Lelieue to be, likelA to spread the} infection oJ ang^{dtseasedangerousto hfe.' shall be} nunishcd with imprisonment^{of eilher desciptionfora} 'term which mag extend to sk months, or uith fne' or with both."

¶65

27O. Molignont^{act likclg to spreod infec-tionof} dise:ase dangelous^{to lik. -Whoeuer malignantlAdoes} ang act uhiih^{is, and which he knows or hos reqson to} beieue to be,^{tikeLAto spreodthe inJectionof anA} ai..o"n aoni.rous-^{to tiJ;'shall be punished uith} imorisonmenl^{of eilher descriplion} for^{a lerm which msg} extend to ttuo^{qcars, or u.tith} fne'^{or with both'"}

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Adulteration^oJ foocl^{or dinkintended for} sole.-Whoeuer^{adulterutcs onlJ anicleof f-ood or d.nnk'} so os lo make^{such arlicle norious as Jood or dnnrc'} iir.naing to^{sell such <trticle as food or drink'or}

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sxs,J crI.P.No.:r309 OF 2024

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k|o,,ung,tt. t.o be lrAelg tllat thc some uitt bc sold os Joo..,^oI ,o4nK, shall be punishcd utrth irnpTis6nTnpnl n7 etlnPr, descnption J'or o tcrm uthich maq ettcnrl to six months, or wth rtne uhich m6]lt e,iend lo one thot ra;d nlpees, or Luith both."

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Sa[e of no\io-us food or dirLk Whoeur_r sclls, or ^-'?,: o|tcrs or c^poses for sale as food or drirtk, atnry antclc uhich has bcen rcnderad or has become nos.ious or.is in reuson a to stare belieue unlit that the for food samtot d,irk, k;;irrt' ":r;;;i;'q desciptton d.i n k, s h o t for i ; ;' a p; term ;t ; ;;: which ; *,,1 mag i",' i irtencl to ii #"ii i,i str Zl" kontnl,! f i^:: or uti.th rt.ne which mag extend to one thousand nrpe:is', or uith both. "

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RELEVANT PRg!,Iq@AIs U]VDER COTP ACT

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Punishment Jor failure to gtue specifi.ed warntng and nicottne and tc.r contents.

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(2) Ang person tuho sells or distributes ctgarettcs o,r tobaeco products tuhich do not cinta-ilt tuarntng tutue. on and lhe the nicotine packag" or on thpir labcl, and tar contents the shatt'tn "p.ni;;ios. offi.rst conuiction be punishable *itn i^prt.rn^.niloli lerm, u.thich mag extend to one Aear, or wtth fine u)hiclt X:o ::^"ro_:? ?,:^{rhousand rupees, ot Lui ;both. ond,} ttt(' scconcl ot subsequent conorction, ruith imprisonment for a term Luhich 1,ia-i1nr"i-,,ni.i',{,i-';Z1!"'ff rupees." i:,::W:::;

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The /js involved in the present petition is no more res integra. A learned Single Judge of the High Court ot Judicature at Hyderabad for the State of Telangana and the State of r\ndhra Pradesh in Chidurala Shyamsubd.er vs. State of Telangrrna.r had an occasion to deal with the issues involved in the prresent criminal petition. After referring to various provisions of IpC, COTp Act and also the principle laid down by the Apex Court and other High Courts in several judgments, the learned Single Judg.e had framed the issues, which are as under:

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'^Crl.PNo.3731 of 2018 & batch, decided o n 2i.[B.2O7B

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srs,J Crt.P.No.23Oq OF 2024

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"1) Whethcr the respondent/ Sub-[nspector of Police, is competent to investigate into^{the offence} punishable under Sections 54 and 59(1) of FSS Act?

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Whether the petitioners in all the^petitionsare found committing any act with^{maliciousintention,} with knowledge and reason to believe^{that suchact} tike$ to spread the infection of^{any diseasedangerous} to life? And whether the^{petitioners sellingor offering} or exposing for sale as food or drink,^{any article} which has been rendered or has^{becomenoxiousor} is in a state unfit for food or drink^{or reason to believe} that the same is noxious^{as food or drink? If so, are} they liable to be^{proceededfor the offencepunishable} under Sections 27O and 273lPC.?"

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In the very same^{judgment, the learned Single Judge further} held that chewing tobacco^{and khaini are not the food'withinthe} defrnition of Section 3 [)^{of theFSS Act and the manufacture,sale} or exposing for sale o[ tobacco^{etc., is governedby the provlsions of} COTP Act, but not by FSS^{Act and so alsothe provisionsof IPC'} The respondents-Police are^{incompetentto investigate the offence} punishable under Sections - 54 and 59^{(1) of the FSSAct and} allegations in the charge sheet coupled^{with the statementsdo not} disclose the commission of^{the offencepunishableunder Section} - 273 of IPC since transportation^{of noxious food is not included} under Section 273 of lPC.^{The act doneby the accusedthereini e ,} transportation of khaini^{and chewing tobacco thoughdangerousto} human life, it would^{not spreador infect or causeany disease on}

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crr^p.No.23oe oFs{o\l

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account of transportation and it those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco by itself is not an offence under Section _ 27O of IpC. pan Masala is not a tobacco product to fall within the purview of COTp Act. Therefore, ' the provisions of the COTp Act have no application, thereby registration of crime on the ground of violation of Section;s - 7 (1) (2) (3) (S) and Section 26 of COTp Act is an i egality.. The learned Single Judge further held that registration of cases lbr the offence under Section _ 20 (2) read with 7 (2) ot COTp Act is illegat. With the said findings, the learned Single Judge has quashed the crimes and calendar cases in the said judgment_

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8_ In Sri Jaganath Enterytrises Eluru Vasandhi Tripati Riro as. The State of And.hra prq.d.esh2, a learned Single Juclge of the High Court of Andhra pradesh at Amaravati had also an ocr:asion to deal with the said issrre. After referring to the contention of the respective parties therein, various provisions of IpC, FSS Act, ,lOTp Act and relying on the principle laid down in Anand Ramdhani Chaurasia3, Joseph Kurian as. State of Kerala+, Sagged. .flassca Sayged. Subhans, M/s. peltsico Ind.ta Holdings (pat)

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32 2019 2020 SCC {1) AtT Online (Crt.) Bom 215 (ApHc}18 57 799s (7) SCJ 277

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2018 AtR (SC) 5348

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srs,J Crt.P.No.2309^{OF 2024}

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Ltd., os.^{State ofU'P'6,so:njag Anjag Stotesus. IJnionoJ} us. India?,^{BooP SinghTgagius. States, State of Haryana} Bhajan^{LaP and ChiduralaShgamsubder (Supra 1)' the learned} Single Judge^{has quashed the FlRs/CalendarCases' The learned} Single Judge^{referring tothe law laid down rnChidurala} Shgamstftdet^{(Supra1) held that despite the said authoritative} pronouncement^{of law, stotus quo continues' The said judgment} attained^{frnality. Even then' the police are registeringcases} against^{accusedon the very same allegationsfor the very same} offences.

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g. Referring^{to the provisions of Sections-lAa' 269 ' 27O'272} alrd2T3oflPC,thelearnedJudgeinSriJaganathEnterprisesheld that the^{offences registereclunder the said Sectionsare not} maintainable.^{lt further held that the provisions of the COTP Act} can only^{be pressed rntoselvicein the limitedcircumstances only} where^{thereis violation of Sections- 4' 5' 6' 7 and 1O of the COTP} Act. By^{referringto the principle laid down by the Apex Court in} Bhajan^{Lal and M/s Pepsico India Holdings (B/t) Ltd'' the learned} Single^{Judge hasquashedtheproceedings invarious} crimes/calendar^cases'

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6 2011{2) crimes 250

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7 2017 SCC OnLine Cal 16323

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"^{2ooz crl.t.!.2272}

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e 1992 Supp (1) scc a35

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¶96

SI(S,J crl.P-No.23O9 OF 2024

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I0. Another learned Single Judge of the High Court of Andhra Pradesh at Amaravati in V.Nagesuara Rao us. State o.f Andhra Prad,eshto had also an occasion to deal with the said issue and agreed with the principle laid down in Chid.urala Shgomsubd.er fSupra^1).

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1 1. In Sayyed .Efcssan Sagged Subho;n (Supra 5), the Apex Court while dealing with legalit5r of the order passecl bv the Bombay High Court 1n a batch of criminal writ petitions and criminal applications, which were filed challenging the re€listration of FIRs for the offences under Sections _ tgg, 222, 273 and 32g of

¶99

IPC and Sections - 26 and 30 of FSS Act r,vhere there is an allegation of transportation a;rd 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 bv it. With lhe 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.

¶100

In vier.r. of the authoritative pronouncement of law in the aforesaid judgments, as discussed above, coming to the facts o[ the cases on hand, the allegations against the accused in respective

¶101

ro 2020 Supreme (Ap) 348

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¶103

sxs,J Ctl-P-No.23O9 OF 2O24

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cases are transportation, possession, storage, sale and purchase of banned products viz-, respectively- ln Chidurala Shgam.sr},d.er (Supra 1), the learned Single Judge observed that transportation of chewing tobacco or khaini or pan masala do not constitute an offence punishable under Section - 27O of IPC and that manufacturing of pan masala is not included in Section 273 of IPC and, therefore, the same is not an offence since it is not a noxious food. The learned Single Judge has further observed in the said judgment which is as under:

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"... Tlte act done bA the petitioners i.e., transportation of khaini and cheuing tobttcco though dqngerous of human hfe, it LDould not spread- or infect or casue any disease on ac.count of transportation and if those products are consumed bg human being, it u,'ould certainlg cause damage to the healtll. Therefore, trqnsportation of khaini or cheuing tobacco ts not bg itseLf is not an offence undet Section - 27O of Irc and it would fall within Section 27O of IPC."

¶106

Section - 272 of IPC makes punishable an offence by a person, who adulterates any article of food or drink. Therefore, the said section would only come into play or drink is adulterated. There is no definition of 'adulteration' in IPC. The definition 'adulterant' is found in the provisions of the FSS Act. Section 3 (1) (a) of the FSS Act deals with 'adulterant' which means a material -which could make the 'food' unsafe or sub-standard or mis-brarded. According to Section - 272 of IPC, if a rnaterial is used to make the food unsafe/ sub-standard or mis-branded, then

¶107

¶108

SKS'J C.I.P.No.2309^OF2024

¶109

only the oflence^{would be attracted.Whereas, as discusserlsupra'} the allegation in the^{presentbatch of cases is with re'gardto} transportation,^{possession, storage,sale and purchaseoI banned} products viz, Lobacco f tambaku/gutkal^khaini I^{zarda/ pan masala} etc-, respectively.^{Therefore,according to this Court, the said} allegation does^{not fall within the ambit of Section} -^{272 of IPC'} Therefore, I agree with^{the principle laid down by the learned} Single Judges of^{the High Court of Andhra Pradesh in Chidurala} Shgamsubder^{(Supra 1), Sri Jaganath Enterprises(Supra2)} and V.Nagesuara Roo^(SuPra10).

¶110

ln Joseph Kurian^{(Supra 4), the HonbleSuprereCourt} held that for Section 272 -^{IPC to be attracted, the followin'3should} be present.⁽¹⁾ That^{the articleinvolved was food and drink meant} to be consumed by^{live persons;(2) that the accused adulteratedit} and the adulteration^{rendered it noxious as a 'food ord rink'; (3)} that the accused^knew at^{the time of adulterationthat tLe would} setl the article as^{foodor drink and knew that sucharticl':cannot} be solcl as food or drink.^{The Hon'ble SupremeCourt clerrrlyheld} that the oflence is completed^{on the introductiono[ the adulterant'} 'Adulterant' u,ould mean that^{a material whichis mixed to make} the 'food' ur-rsafe or^{drink unsafe. In the presentcase on hand,} tobacco is not a food or^{drinkand.what is statedto be mixed in it} is not clearl.y established^{by any cogent materialas an 'adulterant'}

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1,1

¶112

SKS,J crt.P.tlo.2309^{OF 2024}

¶113

for the offence^underSection -^{272 of IPC to be pressed into} servlce.

¶114

Section -^{273 of IPC deals with sale of a noxious food or} drink, and^{as per which, whoeversells' or offersor exposes for} sale, as food^{or drink,any articiewhichhas been renderedor has} becomenoxious,orisinaStateunfitfordrink,knowingorhaving 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 drink"any articlewhich has} become^{noxiousor is in a state of unfit for "foodor drink" Thus'} the said^{section wouldapply,when an article which has become} noxious or^{which has been rendered noxious lt aiso appliesto} food or drink^{only. As held in Sri jaganath Enterprises' the word} 'noxious'is^{not definedin IPC or in FSS Act' As per the dictionary} meaning, the^{word 'noxious'is harmful' deleterious' iniurious'} poisonous etc'^{As stated above' the allegation in the criminal} petition is with^{regard to transportation'possession'storage' sale}

¶115

respectively.^{Therefore, accordingto this Court'the contents of the} complaint/charge^{sheet lacks the ingredientsof Section -273 of} IPC.

¶116

¶117

sl(s,J Crl.P.No.23O9 OF 2024

¶118

As far as Section - l8g of IpC is concerneci, as per the settled law on the subject, before an accused is charged, there must be; an order duly promulgated by the pubtic servant; the public servant must have the lawful authority to promulgate the order; the person flouting the same should have knorvledge alout the order directing him to abstain from the act; he must dis,rbey the said order with the knowledge; and such disobedience of the duly promulgated orcler should cause a danger to the human tif,r etc. ln Boop Singh Tyagi a Division Lrench of Allahabad High Court held that right to promulgate the ordinance/order is also an issue rvhich is being raised, because under the FSS Act, the Commissioner of Food Safety alone has the authority to J)ass the orders only if the article of^,food,can causes danger or is injurious to health

¶119

L7- In lV. ?. Ramr: Rao as. The State of A.p., rep bg public Prosecutortt rvhile dealing with the offences under Sections _ lgg and 283 of IPC, the learned Single Judge of the combint:d High Court of Andhra Pradesh held as under:

¶120

".;) Euen if the allegation that the petitionet conducted public meetings at three road junctions contrarA to the permission accorded Jor conducting of a pubLic meeting onl7 at ofte specif.ed place is trui, such o d[rcction under Section 30 of the police Act, 1861 could have been giuen onlg bg thc Superintendent or the Asststc.nt Supeiitendent of

¶121

I Criminal Petition No.5323 of 2009, decided on 17.09.2009

¶122

¶123

SI(S,J CrLP-No.23O9 OF 2024

¶124

Poltu: of the Distrbt but not bg ong of their subordinates. IJ such a pennission is granted under Sectioru 30 of the Police Act, 1861 and is uiolated, Section 195 (1) (a) of Code of Ciminal Procedure mandates that the complaint in this regard. has to be made bg the public seruant concemed or some other person to whom such a public seruqnt is administratiuelg subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminat Procedure. In the present case, the charge sheet was filed bA the Sub Inspector of Pofice, who could not haue been the authoritA to grant pennission for the public meeting and therehre, the corlplaint/ charge sheet is in uiolation oJ the mdndatorg proukion of Section 195 (1)9a) of Code of Ciminal Procedure.

¶125

Tlaat aryft, the olJence alleged to haue been committed under Section 283 of the Indian Penal Code bg the petitioners and others is obuiousLy in ansequence to the alleged olfence under Sectton 188 of Indian Penal Code and is not an tndependent of the same. Dven otherwtse, the conduce of^public meeting at three road^junctions or obstnlctton to the traffic could not haue been considered as causing ang danger or injury to anA person. In so far as the obstruction in any public wag is concemed, which can also be couered bg Section 283 of the Indian Perutl Code, the charge sheet cites onlg one uitness to speak about the tralFc^jam caused bg the rocLd show. But, when the conduct of the^public meeting at least at one place Lt,,s been permitted and tf the gatheiW for ttnt public meeting resulted in anA inconuehience bg uag of obstructing the trdfrtc, the same cannot be considered- to be uith necessary guiltA mens rea to construe the eistetrce oJ an offence punishable under Indian Penal Code. Uttder the circumstances, none of the offences alleged can be said to haue ang reasonable basis and in ang uiew, the amplaint/ charge sheet bei4g in uiolation of Section 195 {1) (ct) of Code of Criminal^procedure, ho.s to fail.

¶126

As the comptaint hr;s failed due to its unsustainabilitA, the proceedtngs in their entlrelA heue to fail, though the l"t accused^alone approached this Court by wag of lhis Ciminal Petition. "

¶127

In Thota Chandra Sekhar os, The state ol^And.hro Prodesh, through S.ILO., P.S. Eluru Rural, West^Godauari

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1,4

¶129

SKS,J CrI.P.No.2:tO9 OF 2o24

¶130

Districtt2 , rvherein by relying on various judgment inclui.ing lV. T. R(Imq. Ra.o (Supra 11) and also the guidelines laid dowu by the Apex Court in Bhajan.LcI (Supra 9) more particularly, 53-rideline No.6, ivhich says that where there is an express legal bar engrafted .^{in any of the provisions} of the Code or the concerned Act funder which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specilic provision in the Code or the concerned Act, providing eff cacious remedy to redress the grievance of the party, it was held rhat 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 technical defect of obtaining prior permission under Section _ 155 (2) of Cr.p.C. and taking cognizance on the complaint filed by V.R.O and it is against the purport of Scction - 195 (1) (a) of Cr.p.C.

¶131

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 the advertisement of, and to provide for the regulation of trade and commerce ir, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. A reading of the said objects of the said Act would reveal D Criminal Petition No 15248 of 2016, decided on 26.10.2016

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srs,J Crl.P.No.2309 OF 2024

¶133

¶134

that a total ban of tobacco products was not envisaged by the said 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 COTP 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 COTP Act deals with 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, and no person shal1 be part of any advertisement.

¶135

Section - 20 of COTP Act deals with punishment for failure to give specified warning and nicotine and tar contents. But, in the complaints/charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and specilied warning on the said products. In view of the same, the contents of the complaints/charge sheets Iack the ingredients^of Section 20⁽²¹ of the COTP Act. Even there is no allegation^{that the} seized products do not contain labels with statutory^warning. Thus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 20 (21of COTP Act, but

¶136

'-.

¶137

¶138

sxs,J Crt.P,No.2309 OF 2024

¶139

also contrary to the principle laid down in Chid.urala Shgam.subder. In view of the same, the offence under Section 20 (2) of COTP Act is also liable to be quashed against the petitioners. I once again reiterate that I agree with the principle laid rlown by the learned Single Judges of the High Court of Andhra przrdesh in Chidurala Shyamsubder, Sri Jaganath Enterprises and V. Nageswara Rao.

¶140

[n view of the above said cliscussion, 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. Thereforc, it cannot be said that Sections _ 1gg, 269, 27O, 272 and 273 of tlne IpC and Section 20 (2) ot COTp Act are attracted to the present case. lnsofar as the offence under Section 8 (c) read with Section 20 (b) (ir} (B) of the NDpS Act, the petitioner is liable to be prosecutecl.

¶141

In the result, the Criminal petition is allowed 1n part and the proceedings against the petitioners/accused Nos.l and 2 in S.C.No.24 of 2021, on the hle of the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 1gg, 269, 27O, 272 and 273 of the IpC and Section 20 (21 of the CO,Ip Act only are hereby quashed while permitting the prosecution to

¶142

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.J.1

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srs,J Crl.P.No.23O9 OF 2024

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proceed further against the petitioners/ accused Nos.l and 2 for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS Act.

¶146

Miscellaneous applications, if any pending, shall also stand closed

¶147

Date:15.O4 .2024 sAl

¶148

K. SUJANA, J

Mohd Habeeb Hussain v. The State of Telangana

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Mohd Habeeb Hussain v. The State of Telangana

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