Allowed

Obul Setty Hari Babu v. State of Telangana

Telangana HC2 Jul 2024CRLP/118/2021

Case brief

AI extract

What is this about?

High Court examined Criminal Petitions regarding charges under IPC and COTPA for transporting/tobacco products. It relied on prior judgments quashing similar proceedings for lack of legal ingredients against IPO and COTPA violations, allowing the petitions.

What did the court decide?

Proceedings in C.C. No. 1014 of 2017 and multiple other Criminal Petitions are quashed. Seized property is directed to be returned.

Obul Setty Hari Babu Vs State of Telangana — Quashing and FIR | Telangana HC (2024)

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|³²⁵⁷ )

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND TWENTY FOUR

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PRES ENT

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THE HONOURABLE SMT. JUSTICE JUWADI SRIDEVI

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CRIMINAL PETITION NO: 118 OF 2021

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Betw06n:

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Obul Setty Hari Babu, S/o. Satyanarayana, Occ: Business, Aged 46 years, H. No. 9-4-6714, Pailpeta Chilkawari Street, Guntur, State of Andhra Pradesh

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lrrladdula Lakshmana Hanumanth Prasad, S/o. Sambasiva Rao, aged 49 y6ars, Private Employee, Buchaiah Thota, Eighth Line, Guntur, State of Andhra Pradesh.

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..Petitioners/Accused Nos.7 and 8

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AND

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State of Telangana, Represented by its Public Prosecutor, Hiqh Court Buildings, Hyderabad.

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..RespondenUComplainant

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleasec.i to call for the records in relation to C.C No.1014 of 2017 on the file of lX Additional Chief Metropolitan l,4agistrate, Hyderabad and quash the same against the^petitioners / Accused No. 7 and B.

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l.A. NO: 1 OF 2021

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the lvlemorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceeding in C.C No. 1014 of 2017 on the tile of lX Additional Chief Metropolitan Magistrate, Hyderabad.

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This Petition coming on for hearing, upon perusing the lvlemorandum of Grounds of Cnminal Petition and upon hearing the arguments of Sri G Kalyan Chakravarthy, Advocate for the Petitioner and the Assistant Public^prosecutor on behalf of the Respondent.

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The Court made the following: ORDER

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THB HON'BLE SMT. JUSTICB JU,'VADI STUDI'VI

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CRIN{INAL PETITION No.118 Olt 2.021

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OTtD}iR:

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Petitioners, who are accused Nos.7 and B in C.C.No.l014 of 2017 on the file of IX Additional Chief Metropolitan Magistrate, Hyderabad, are seeking to quash the proceedings against them in the said casc. 2. I{eard leamed counsel for petitioners and learned Assistant pubtic Prosecutor appearing for the respondent-State.

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The offrnces alleged against the petitioners are under Sections 272, 273 and 336 of IPC on the ground that petitioner No.l /accused No.7 had come to Hyderabad to book an order for Gutka and pet itioner No.2/accused No.8 has assisted petitioner No.1. It is alleged that both the petitioners were packing and transporting Gutka and other Tobacco products at Kaveri Road Carriers, King Koti branch, Hyderabad. 4. A perusal of the record would reveal that the /rs involved in this case had aiready been dealt with by this Court extensively in a batch of cases in Mohd. Jameel Ahmed v, State of Telanganat and also in an urireportcd order datcd 10.06.2022 in Crl.P.No.56t9 of 2020 and barch. 5. In Mohd. Jameel Ahmed's case (l supra), it is held that as per Section 2'12 of IPC, whoever adulterates any article of food or drink. is '^zozz C'.ittl 6qz \

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)

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punishable. The word 'adulteration' is not defined in IPC and is delrncd undcr the provisions of the Eood Safety and litandards Act. As pcr Seotion 212 ol IPC, il a material is uscd to makg the food unsafe/substarLdard cr mis-branded, then only the of'fence ivould be attracted. It is further held in the said^judgment that as per Section 273 of It,C, whoevcr sells or offers or exposes for sale, as food or drirk, or any arlicle u,hich has become noxious, is punishable. The word 'uoxious' is not defined cithcr ir-r IPC or in the Food Sal'ety snd Standai'ris Act.'l'he dictionan rneaning of the word 'noxious' is harmful, deleterious, injurious, poisonous etc., lt is further held in the said^judgrnent that as per Section 336 of IPC, whoever does any act so rashly or negligently as to cndanger human lil'e or thc pcrsonal safety of others, is punishable.

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With thc aforesaid purpoft of the olfences under Sections 272, 213 and 336 of IPC, the allegation in this case is that the petitioncrs were found packing and transpofting Gutka and other Tobacco products, which does not fall within the arnbit of Section 272 of IPC. Similarly, Seotion 213 of IPC would be attracted only when an articlc was made noxious. 'fl'ris provision is also not attracted in the present case, as thc petitioncrs rvere merely allcgcd to have been packing and transporling Gutka and other Tobacco products. Coming to Section 336 of IPC, there is no allegation of rash^and negligent^act endangcring human lil'e or personal

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salety of others, against the petitioners, as per thc contents of the complaint ol the charge sheet.

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Therefore, in view of the aforesaid law taid down by this Cour1, this Criminal Petition is allowed quashing the procccdings against thc petitioners herein, in C.C.No. 1014 of 2017 pendingl on the hle of IX Additional Chiel' Metroplitan Magistrate, Hyderabad.

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Miscellaneous P11itio,s, pending,f "y:jn"'1 .l""9rl,i'ilrororor.

ASS'STANT REGISTRAR

To,

//TRUE COPY//

SECTION OFFICER

1 . The lX Additional Chief tr/etropolitan tvlagistrate, Hyderabad 2. The Station House Officer, Narayanaguja pof icu dGtion, Hyderabad 3. fwo CCs to the^public prosecutor, High Court for tne Siate ot felangana at Hyderabad [OUT]

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9n" 99^{to Sri G Katyan Chakravarrhy, Advocate} [OPUC]

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Two CD Copies

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HIGH COURT

DATED:0210712024

ORDER

CRLP.No.118 of 2A21

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ALLOWING THE CRLP

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IN TIIE HIGH COURI' FOR THE STATE OF TELANGANA AT: HYDERABAD

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CORAM:

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TI{[ IION'BLE SRI JUSTICE K. LAKSHIVIAN

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CRIN{INAL PETITIO\ No.152 O}' 2020 & tsatch

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7o Delivered on: 05-07-2021

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Between in Crl.P. No.l52 of2020:

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Mr. Mohd. Jameel Ahmed

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Petitioner

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$ The State ofTelangana, rep.by Pubtic Prosecutor High Court ofTelangana, I{yderabad & another

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Respondenls

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! For respective Petitioners

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: Mr. M.A.K. Mukhccd Mr. Gajanand Chakavarthy Mr. K. Surende. Mr. Praveen Kumar Veerjala, Ms. P. Radhika Mr. Srinivas Reddy Balakisti Ms. C. Sunitha Kumari Mr. Kondadi Ajay Kumar Mr. S.M. Subhan

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Ms. N. Anhi

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Mr. Y. Bala Murali

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Mr. Boggula Raju Mr. S. Chandrasekhar

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Mr. V. Yadukishna Sainath Respective learned counsel

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^^{For Respondents}

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: Leamed Public Prosecutor

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< Gist

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Head Note

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? Cases Referred

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t. 2018 ArR (sc) 5148 2.2016cn.L.!.2401

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2019 SCC Onlioe Bom 1857

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Crl.P. No.373l of20l8 & batch, decided on^27.08.2018

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2020⁽¹⁾ ALT(Crl.) 215^(AIHC)

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1995 (r) SCJ 277

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201I⁽²⁾ Crimes 250

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20t7 SCC Online Cal 16323

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9.2002Cr1.L.t.2872

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1992 Supp (l) SCC 335 ll. 2020 Suprcme^(AP) 348

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Crimiml Petitiod No.5323 of?O09, decided on 17.09.2009

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Criaiml Petition No.15248 of2016, decided on^25.10.2016

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KI.J C4-P- No-t52 of 2020 & bat.t

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HON'BI,I' SRI JUSTICE K, LAKSIIMAN

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CRIMINAL Plt'l'lTlON Nos.ls2. 153. 155. 162 & 5826 OF 2020 AND 3498. 3500. 3509. 3514. 3768. 3879. 4046. 4070. 4077. 4098. 4099. 4100, 4102. 4l 10. 4t19.4t40. 4141.4151. 4157 . 1t78. 4182. 4187 - 4194.4216.4230.4247.4249. 4251. 4258. 4262. 4277. 4361. 1405. 4415. 4542- 4612. 4615. 4622. 4632, 4640. 468t . 472'7 . 477s & 4825 0F 2021.

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COI'IN{ON ORDEIT

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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, offences alleged, natue of offences etc., are mentioled in

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the following tabular form:

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sl. No	Crl.P No.	CrimcNo	Number	offences aUegedly committed	Natureofoflen(c
0l	3768i21	217,?0ofPS Maaoharabad		272,173tPC& 20 (2)t/'t7Q)ot COTPA	Transportation of Amber
0:	i879,'2t	33/21ofPS Kadad	sole	210&273tPC	Saleofbannedtob.rcco
0l	4016/21	7821ofPS (T) Adilabad	A1&2	-do-	Sale of gutka,/tobacco
0.,1	4077/2t	2ll21 of PS Easgoan	sole	-do-	PossessioDofgutka /tobacco inpatrshop
05	4t98/2t	185/21ofPS(T) Nirmal	A1to3	210,213lPC& 20 (2)ofCOTPA	ired
06	4099/21	No.36/21ofPS Koutala	sole	2'tok211tp('	Possessionoftobacco
0r'	4100i21	No.382lofPS Easgoao		270&271tPC	Possessionofbanncd gutka&other tobacco
08	4to2/21	45521ofPS Kukagally		336,273&188 IPC&59(i)or FSSA	Traosporiation aod sal. ofprohibitedtobacco
D9	4t4t/21	45,21of PS ChinSpally	Alto3	270&273 tPC& 20(21tlw7(2tof COTPA
l0	41511?t	198,21ofPS Choutuppal		272&273tPC& 20 (2)ofCOTPA	Storageoftobacco
u	4t57/2t	134/21ofPS Ctityalo'I-G)	Atto4	272,273&32a tpc&20(tl&'7 (3)ofCOTPA	Purcha5e audsalcol' prohibitedtobacco
l2	41S2/21	7421 ofPS Rashunadhpalem	A.t&2	2't0&273IPC	Transportatiotrofbanoed
l3	4t81/2t	202,21ofPS(T) Maftherial	sole	-do-	Possessionofbanncd

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KL,J Crl P. No. t 52 of2020 & batch

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l4	4241tzt	61/21ofPSII Town Adilabad	SOIC			Possessionofbaoncd gu&apmducts
Ll	4249iZt	10U21ofPSI ToMAdilabad	r\l&2			Saleofgu*aand
i6.	4251,,21	90/21ofPSI Towo Adilabad	sole	-do		Abouttouiosport DoxioLrs^gutkaand
t1	425811t	9ll21of l'SI TownAdilabad				Saleofbannedsurka and tobacco^products
18	4lar2'21	107/21ofPSI	Al&2			fransportatiooof gutka and tobacco^pmducts
l9	411121	l62nI ofPS AMUIapurmet	AIlol	t88.272. 328 IPC	273& I	Saleofbannedlobacco (tambaku)prodlcrrin lorry
20	440J/21	zDlzlofPSI Town Nalgonda	solc I	t8a.272 IPC	&273	Transportationof gutktobaccoproducts
2t	44tr,2l	232121ofPSll (T)Nalqotrda				Possessioootbasned eulka^{/tobacco products}
22	4542i11	87121ofPSlll (T)Kodagudee	Al&2 I	188,26 271r/wl4 3ofEDA (b)otDM	9,270. IPC& &51 ^	Possessio.ofloba..6 pmductsin kirana shop
ll	46ti2l	225,21ofPS Nirmal To*al	Al&2	270&273		'C
24	4640i21	89/20of PS Mamada		-do- r/w1.1	IP('	Transponatioo ofbanned tobacco/Butka^pockcts
25	468t/21	186/21ofPS Peddavoom	,\2	328r/w5 &271tPC	ll.21Z	Posscssionof hilr,red gutka&tobacco produclsinkinnaslrcp
26.	4727121	164/21ofPS Adibada	A]	210, 212 IPC&20 COTPA	&273 (2)of	Transpo(alionof cigaretteororherlobacco pmducts withoutvalid license
21	4715i21	234121ofPSI (T) Nalgonda	I	328,272, 188 rPC	213&	SaIeofgutka&khaini
28	41\25t21	245/21ofPS	At&2	32A.2t0 r/w 5lIIP (2)fCT	&273 C&20 l'A	Trnosportation ofbanncd
		Klammam tR) 3515/19of	CALEN 210	oo DAR 2t3&	CASES	sulka I
29	152t20	I.AJMFC,	A2 I88 &5	, ,420IPC 8ofFSSA	Transp	ortatiod ofbaDncd zarda products
30	153/20	2724119ot x,It CMM, Hvd.	A2 27 IPC FSS	&273 &59of A,2006	S	aleolzardaillegally
ll	I55./20	3518/19of I-AJMFC,	A] 420 273 OfF	, 270& rPC&58 SSA	Tra$p	oftationofbanncd zarda
il	161i20	4137/18ot XIAMM, Sec.bad	A] 272 &4 20 COT	,273,116 20 tPC& (2)af PA	Sale chc	of p.ohibitedgutkaand wingtobacco products I
t3	5826/20	Sp€cial Magistrate ofIIClass, Jaetial	AI &2 188 273	,270& IIC	Tmnsp	otutiotr ofAmber gutka pockels
34 I	l{98/21	2rcn0ot JFCM, Devarkonda	Al&2 42 IPC	0&273	Sa,eofb	annedtobaccoandgutla products
35.	3500/21	963/19of JFCM, MEalguda	420 rPC ofc	&273 &20(i0 orPA,200l I	Trans	portalion oftobacco aod gulka Droducts

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{

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K].,J

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Ctl.P. No.l52 of2020 & batch

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l6	li09/2I	452n0of xxvtdMc,	Al&2	r88,2?0& 273tPC.,20 (2)ofCOTPA, 3ofEDA& sl (b)of DMA	I Sto.rgc ofbanned^gutkaandother tobaccoproductsillega[yforsa,,:
t7	t5t412t	632/19of XXVMMC,	Alto8	t88,210,273 &420ltc& 2012)or COTPA	Supplyofgutkaard olher tobacc. Products
3S	4011)nt	54'I/21of P'MFC, Gajwel	Al &2	2t2&273 tPc&20Q) lw7(2) of COTPA	Traosportalioo of Ambertobaccc
l9	,11l0/2I	sO9D0of Spl.PCR Mobile Court-cum- JMFC, Adilabad	Al105	2t0&271 rPc&20⁽²⁾ t/w7(21or COIPA	TraBportationofpaonasalaand batrred^gu&a
40	4u9/21	512n0of Spl.PCR Mobile Coun-cum- JMFC, Adilabad		210,27t,272 &271vt34 IPC Sec.3ofEDA	TraNportatio! ofcottonseeds arul banned^gu&a
4t	4140./2I	STC No.20/21of IVAMM, AJCJ, L.B. Nagar	At&2	212&273 IPC&Sec.20 (l),20(2)of COTPA	TraNportationofbanned tohacco and^gutka
4l	1tlA/2t	810/21of IAJMFC, Khammam		210&2',t3 rPc&20⁽²⁾ ofCOPTA	Purchase andsaleof baarcdgutkL
1l	1194/21	6167D1of xvflACMM, Nampally		t88,2t2& 273 tPC&20 (2)&5of COTPA	Saleoflobaccopmductsin his shopand disobeying therules imposedbyGo\1. itr Not.No.505/F'SS-I/2I.dt.6.1.2I
41	4216/2t	1298/21ot PJMI:("	Al&2	2t0&273 rPC&20⁽²⁾ ofCO]?A	Tnnsponation of Amber gu&a
45	42i0,21	829n1of PJMFC, Khaofiam	At&.2	-do-	Totrspo(atioD of^gutka/pan
	136t/2t	108121 AJMF(', Asifabad of	AI&2	270&271 tPC	Possessionoftobaccopmducis illegallyforsale
11	46t212t	533n0ot AJMFC, Nirmal	Sole	-do	Puchase alldsaleof^prohibited grlka pockets
4S	4622t2t	622/19of AJMFC. Nirmal	At&2	di,	Possessiooof^{guika packets}atbus standforsaleilegally
	4632/2t	413/20of AlMr(, Nirmal	A3	-do' r/w34 rPC&20⁽²⁾ ofCOTPA	Transpoftatiotr ofbanned tobacco products

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Heard, Mr. M.A.K. Mukheed, Mr. Gajanand Chakavarthy,

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

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a,l P Io 1t2 of2020 & hd.j,

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Mr. Srinivas 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, learned counsel appearing on behalf of rcspective petitioners and leamed Public Prosecutor appearing on behalf of respondents - State.

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The question involved in all the above matters is one and the same and, therefore, the same are disposed ofby way olthis common order.

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The main allegations against the petitioners - accused are that they were transporting, possessing, storing, selling and purchasing the banned products vrz., tobacco / tambaku / gutka / VJtatni / zarda I^pan masala respectively. The offences alleged against the petitioners are under Sections - 188, 270, 269,271, Z7Z,273,328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860^(for short 'IPC'); Sections - 20 (1), 20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Advedisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act,2003^(for short'COTP Act'); Sections^- 58 and 59 ofthe Food Safety and Standards Act, 2006^(for short 'FSS Act'); Section - 3 of the Epidemic Diseases Act, 1897^(for short'ED Act') and Section - 5l (b) of the Disaster Management Act, 2005^(for short DS Act) respectively.

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C .P. No-lt2 oJ2020 &batch

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The respective leamed counsel appearing^{on behalf} of^the petitioners in the above criminal^petitions would submit that^the contsnts of complaint / charge sheet^lacks the^{ingredientsof the} offences alleged against the accused.^{For the offencesunder the} provisions of FSS Act, only Food Safety Officer^{is having powerto} initiate criminal^proceedings against^{accused and the policeare not} having any^power to^registcr a^{casefor the offences underthe} provisions of FSS Act. There is no inducement by the^petitioners and, therefore, offence under Scction - 420 of IPC^{does not arise.} According to them, the contents of^{complaint / charge sheet are also} lacking the ingredients ofthe^{oflences under Sections -269,270,?71,} 272,273,328 and 336 of IPC.

¶102

i) According to them, there is no^{violationof Sectioos - 20 (l),} 20 (2) and 5 read with 7 (2) and 7⁽³⁾ of the^COTP Act.^The Investigating Offrcers / Complainants without^{following the procedure} taid down under the Code of Criminal^{Procedure, 1973(forshort} 'Cr.P.C-'), have registered the^cases for^{the offence under Section -} 188 of IPC and laid charge sheet against the^{accused.Necessary} ingredients to attract the^provisions of^{Section- 3 of the ED Actand} Section - 5l (b) of the DM Act are lacking^{in the complaint/ charge} sheet.

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iD With the above said submissions, the^{respectiveleamed} counsel sought to^{quash the proceedingsin the aforesaid crimes/} calendar cases.

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KL,J <:.1 P No I^j2 of2020 & bat.h

¶105

On the other hand, learned Public^{Prosecutor referring to the} principle laid down in the State of Maharashtra v. Sayyed Hassan Salyed Subhanr by the Hon'ble Supreme Court and in Ganesh Pantlurang Jadhao v. The State of Maharashtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtras^{by theBombay} High Court would submit that police are having^power to register cases under various provisions of IPC, COTP Act,^ED Act^andDM Act. There is no irregularity in registering crimes, seizing^material including the vehicles and layiag charge sheet against respective accused in the aforesaid crimes / calendar cases.^{According to him,} the accused were fansporting,^possessing, storing, selling^and purchasing the banned products vz., tobacco / tambaku /^gutka / khaini / zarda / pan masala respectively.^According to him,^the accused have to face either investigation or trial and prove their innocence, ald instead of doing so, they have filed the^present criminal petitions under Section - 482 of Cr.P.C.^{whichcannotbe} considered at this stage.

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i) With the above said submissions, leamed Public^Prosecutor sought to dismiss the above criminal^petitions.

¶107

In view of the above rival submissions, it is^{apposite to} extract the relevant^provisions of^{IPC, COTP Act,FSS Act, ED Act} and DM Act, which are as under:

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'.2ol8ArR(sc)5i48 '^{2or6cn L.J.24ol} r. 2019 SCC onlineBom 1857

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KI,'J Crl-P- No 152 oJ 2t)20 &bdtclL

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RELEVANT PROVISIONS UNDER IPC

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*188. Disobedience to order duly promulgated by public servrnt. Whoever, 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 certain order with certain prcperty in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury. or risk ofobsiruction. annoyance or injury. to any person laufully employed, be punished with simple imprisonment for a term which may extend to one month oI with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause^a riot or affray, shall be punished with imprisonment of either descriptiofl for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

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Explanation, It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to p.oduce harm. It is sulhcieut that he knows ofthe order which he disobeys, and that his disobedience^produces, or is likely to produce, harm.

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Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall trot pass down a certain street- A knowingly disobeys the order, and thereby causes danger ofriot. A has committ€d the offence defined in this sectioo."

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

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"270,^{Malignant act likely to spreadinfectionof disease} dangerous to life. Whoever malignaotly does any^actwhich

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¶118

KL,J Crl P No 152 ot 2020 & hd.h

¶119

is, and which he knows or has^{reasonto believeto be, likelyto} sDread the infection of any disease^{dangerousto life,shallbe} punished with imp sonment of either description for a term which may extend to two^years, or^{with fine, or with both."}

¶120

"271. Disobedience to^{quaratrtinerule.-Whoeverknowingly} disobeys any rule made aod^{promulgated bytheGovemmentfor} pulting any vessel into a state ofquarantine, or for regulating^the intercourse of vessels in a state^{of quamntinewiththe shore or} with othe. vessels, or for regulating^{the intercourse between} places where an infectious disease^prevails and other^places, shall be punished with imprisonment^{of eitherdescription fora} term which may extend to^{six months,or withfine,or with} both."

¶121

"272. Adutteration of food or drink iutended for^sale.- Whoever adulterates any article^{of food or drink,so as to make} such article noxious as^{food or drink,intendingto sellsuch} articlc as food or drink, or^{knowingit to be likelythat thesame} will be sold as food or drink,^{shatl be punished with} imprisonmeot ofcither description^{for a termwhichmay exteod} to six months, or with fiue^{which mayextendto one thousand} rupges, or with both."

¶122

"273. Sate of noxious food or drink.-Whoever^{sells, or offers} or exposes for sale, as food^{or drink, any articlc whichhasbeen} rendered or has become^{noxious, or is in a slate unfit forfoodor} drink, knowing or having^{reasonto beiieve that the same is nox-} ious as food or drink, shall be^{punishedwithimprisonment of} either description for^{a term which may ext€nd to six motrths, or} with fine which may exte[d to one^{thousand rupees,or with} both."

¶123

"328. Causing^{hurt bymeatrsof poisoo, etc''withitrtent to} commit an offence.--Whoever^{administers to or causesto be} taken by any^person any^{poisonor any stupefying, intoxicating} or unwholesome drug, or other^{thingwithintent tocausehurtto} such persoo, or with^intent to^{commit or to facilitatethe} commission ofan offence^{or klowing it tobe likelythathe will} thereby cause hurt, shall^{be punishedwithimprisonmentof}

¶124

l(l

¶125

KI,.J Crl. P. No. I 5 2 of 2020 & bakh

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either description for a tenn which may extend to ten years, aod shall also be liable to fine."

¶127

"336- Act endangering life or personal safety of others.Whoever does any act so rashly or negligcntly as to endanger human life or thc personal safety of otllers, shall be punished with imprisonmenl of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both."

¶128

"420. Cheating and dishooestly ioducitrg delivery of property.-Whocve r cheats and thereby dishonestly induces the persotr deceivgd to deliver any property to any person, or to make, alter or dest oy the whole or aoy part of a valuable securiqr, or alything which is signcd or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

¶129

"34. Acts done by several persons io furtherance of commotr inteotiotr.-When a criminal act is donc by several persons in fiirtheratrce ofthc common intention ofall, each of zuch persons is liable for that act in the same manner as if it were done by him alone-"

¶130

"511. Punishment for attempting to commit offences punishable with imprisotrment for life or oaher imprisotrmetrt.-Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment. or to cause such an offence to be committed. and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempr, be punished with imprisonment ol any description provided for the offence, for a term which may extend to one-half of thc imprisonment for life or, as the case may be, one-half of the longest term ofimprisonment provided for that offence, or with such fine as is provided for the offence. or with both."

¶131

K],.J Crl.P- No.IJI of 2020 & bddt

¶132

IITLEVANT PRO{SIONS UNDER COTP ACT

¶133

"5. Prohibition of advertisemeDt of cigarettes aod other tobacco products. {1) No person engaged in, or purported to be cngaged in the p.oduction, supply or distribution ofcigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any oth€r tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption ofcigarettes or any other tobacco products.

¶134

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

¶135

(a) display, cause to display, or permit or authorise to dis?lay any advertisemelt ofcigarettes or any other tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a fiim or video tape containing advertisement of cigarettes or any other tobacco product; or

¶136

(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or

¶137

(d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structurc or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement ofcigarettes or any other tobacco product:

¶138

Providad that this sub-section shall not apply in r€latio[ to

¶139

(a) an advertisemeflt of cigarettes or any othcr tobacco product in or on a package containing cigareftes or any other tobacco product:

¶140

(b) advertisement of cigarettes or any other tobacco product which is displayed at the ent.ance or inside a warehouse ot a shop where cigarettes and any other tobacco^producls are offered for distribution or sale.

¶141

(3) No person, shall, under a contact or otherwise promote or

¶142

agree to promote the use or consumption of-

¶143

(a) cigarettes or any other tobacco product; or

¶144

(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship,^gift,prize or scholarship given or agreed to be^given by another^person."

¶145

"20. Punishmelt for failure to give specified warning and uicotine and tar cotrtents.

¶146

(l)Any person who produces or manufactures cigarettes or tobacco products, which do not contain, either on the^package or

¶147

¶148

KLI Crl-P- No-152 of 2020 & bd.h

¶149

on their label, thc specified waming and the nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment 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 exteod to five years and with fine which may extend to ten thousand rupees.

¶150

(2) Ary person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar coltents shall in the case of hrst conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupces, or with both, and, for the second or subsequent conviction, with imprisonment for a term u'hich may extend to two years and with fine which may extend to three thousand rupees."

¶151

"7. Restrictions on trade and commerce io, aod production, supply and distribution of cigarettes and other tobacco Products.-

¶152

(l) No person shall, directly or indirectly, produce, supply or disfiibute 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 prcscribed.

¶153

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

¶154

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

¶155

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

¶156

¶157

KL.J Crl. P. No I 5 ) of 2020 & batch

¶158

tobacco products have^{been packedfor distribution,sale or} supply for a valuable comideration.

¶159

(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any^{other tobacco products unless every} package of cigarettes or auy other tobacco^{productsproduced,} supplied or distributed by^{himindicates thereon,or on its lab€|,} the nicotine and tar cotrtents^{on each cigarette oras the case may} be on other tobacco^{productsalong with the maximum} permissible limits thereof: Provided that^{the nicotineand tar} contents shall not exceed the^{maximum permissible quantity} thereofas may be^{prescribed by rules madeunder this Act."}

¶160

RELEVANT PRO^{VISIONStlliDER F.S.S.Act:}

¶161

"58,^{Penaltyfor contraventiotrsfor whichno specific penalty} is provided.-Whoever contravencs^{any provisionsof this Act or} the rules or regulations^{made thereunder,forthe contrav€ntion} of which no^{penaltyhas been separatelyprovided in this} Chapter, shalt be^{liableto a penalty whichmay extend to two} lakh rupees."

¶162

"59. Punishmetrt^{for unsafefood.-Any persor who,whether} by himself or by any other^{personon his behalf, manufach[es} for sale or stores or sells or^{distributesor imports any article of} food for human consumption^{which is unsafe, shallbe} punishable,-

¶163

(i) where such failure or contravention^{does notresult in injury,} with imprisonment for a^{term which mayextendto sixmonths} aod also with fine^{which may extend toonelakh rupees;}

¶164

(ii) where such failure or contravention^{resultsina non-grievous} injury, with imprisonment^{fora term which may extendto one} year and also with fine which may^{extend to three lakh rupees;} (iii) where such failure or contravention^{results in a grievous} injury, with imprisonment^{for a term whichmayextendto six} years and also with ltne which^{mayextend to five lakhrupees;}

¶165

(iv) where such failure ot contravention^{resultsin death,with} imprisonment for a term^{which shall notbe less thanseverl} years but which may €xtend to^{imprisonmentfor lifeand also} with fine which shall not be less^{than tenlakh rupees."}

¶166

¶167

KI,.J Crl.P No 152 of2020 & bdt.h

¶168

RELEVANT PROVISION LTNDER E.D. ACT

¶169

"3. Penalty, Any^person disobeying any^{regulatio[or order} made under this Act shall be deemed to have committed an offence punishable under section 188 ofthe lndian Penal Code (,15 of 1860 )."

¶170

RELEVANT PROVISION UNDER D.M. ACT:

¶171

''51. Punishmenl for obstruclion, etc.

¶172

(1) Whoever, without reasonable cause- (l) Whoever, \t'ithout

¶173

reasonable cause "

¶174

(a) obstructs any officer or employee ofthe Central Govemment or the Stats Covemment, or a person authorised by the National Authority or State Authodty or Dist.ict Authority irl the discharge ofhis functions under this Act; or

¶175

(b) refuses to comply with any direction given by or on behalf of the Central Govemment or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonrnent for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or irnminent danger thereof, shall on conviction b€ punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs.5l to 58) seeks to lay down what will constitute an off€nce in terms of obstruction ofthe functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false waming, failure of an officer to perform the duty imposed oo him under the 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."

¶176

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

¶177

integra. A learned Single Judge of the High Coud of Judicature at Hyderabad for the State ofTelangana and the State of Andhra Pradesh in Chidurala Shyamsubder v. State of Telatrgana4 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 laid down by the Apex Cout and other High Courts

¶178

'.^{Crl.p.r.-o.:zt t of 20t 8 & batch. decidedon27.08.20I 8}

¶179

¶180

KI"J Crl,P- No-152 of2020^&batch

¶181

in several^{judgments, the learned Single Judgehad framed theissues,}

¶182

which are as under:

¶183

"1) Whether^{the respondent/SubJnspector of Police, is competentto} investigate into the offence^{punishableunder Sections54 and59(1) of} FSS Act?

¶184

Wh€ther the^{petitiooers in all the petitions are foundcommittingany} act with malicious^{intention,with knowledgeand reasonto believethat} such act likely to spread^{theinfectionof anydiseasedangerousto life?} And whether the^{petition€rs selling or offeringor exposingforsale as} food or drink, any^{article whichhas beenrenderedor hasbecome} noxious or is in a state^{unfit for food or drinkor reasonto believe that} the same is noxious as^{food or drink? If so, are they liableto be} . proceeded for the offence^{punishableunderSections270ar,d273} IPC.?"

¶185

After an^{elaborate discussionand on consid€rationof} various aspects, the^{leamed Single Judge has heldthat the police} cannot take cognizance^{of the offence, to investigateinto and file} charge sheet against^{the accused thereinfor the offencepunishable} under Sections - 54^{arrd 59 (1) of FSS Act, as they were not} empowered utrder the^{said Act to launch the prosecution, but only} Food Safety Ofhcer^{appointedby the Government aloneis competent} to launch^{prosecutionfor thosetwooffences. With thesaidfindings'} the leamed Single^{Judge hasquashedtheproceedings where the} offences are under^{Sections- 54 and 59 of FSS Act initiatedby the} police

¶186

In the very^{samejudgment,theleamed Single Judge further} held that chewing^{tobaccoandkhaini are not the 'food'within the} definition of^{Section - 3O oftheFSS Actand the manufacture,saleor}

¶187

¶188

KL,J Crt.P. No t52 of2020 & batch

¶189

exposing for sale of tobacco etc., is govemed by the provisions of COTP Act, but not by FSS Act and so also the provisions of IPC. The respondents - police are incompetent to investigate the offencc punishable under Sections - 54 and 59 (1) of the FSS Act and allegations in the charge sheet coupled with the statements do not disclose the commission ofthe offence punishable under Section - 273 of IPC since transportation of noxious food is not included under Section - 273 of IPC. The act done by the accused therein i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of 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 by itself is not an offence under Section - 270 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 Sections - 7 (1) (2) (3) (5) and Section - 26 of COTP Act is an illegality. The learned Single Judge further held that registration of cases for the offence under Section - 20 (2) read with 7 (2) of COTP Act is illegal. With the said findings, the learned Single Judge has quashed the crimes and calendar cases in the said^judgment.

¶190

t'7

¶191

KL,J C -P- No.t52 of2020 & batch

¶192

In Sri Jaganath Enterprises Eluru^Vasadhi Tripati^Rao

¶193

v. The State ofAndhra Pradeshs, a learned Single^{Judgeof theHigh} Court of Andhra Pradesh at Amaravti had^{also an occasion} to^deal with the said issue. After referring to the contentions ofthe^respective parties therein, various provisions of IPC, FSS Act,^COTP Act^and relying on the principle laid down in Anand^{RamdhaniChaurasiar,} Joscph Kurian v. State of Kerala6,^{SayyedHassanSayyed} Sutrhanr, M/s. Pepsico India^Eoldings @vt)^{Ltd., v. Stateof U.P.7,} Sanjay Anjay Stores v. Union of Indias,^{Boop Singh Tyagi v.} Statee, State of Haryana v.^{Bhajan Lalro and Chidurala} Shyamsubdera, the leamed Single^{Judge has quashedthe FIRs /} Calendar Cases. The learned Single^{Judgereferringto the lawlaid} down in Chidurala Shyamsubdcra^{held that despitethe said} authoritative^{pronouncement} of^{law,status quo continues.Thesaid} judgment attained flnality. Even then, the police are registering cases against accused on the very same^{allegationsfor the very same} offences.

¶194

i) Referrirg to the provisions of^{Sections - 153, 188,269,270,} 271, 277, 273, 284, 328, 353 of IPC,^{theleamed Judge in Sri} Jaganath Enterprisess held that^{the ot'fences registered underthe} said Sections are not maintainable. It^{fiulher held that the provisions} of the COTP Act can only be^{pressedinto service in the limited}

¶195

5.2020 (r) ALT (crl.) 215 (APHC)

¶196

1995 (t) scJ 277

¶197

20 1 1 (2) C.ines 250

¶198

2017 sCC ooline Cal 16321 e )or2 c,1t.t 7a72

¶199

to. 1992 Supp (l) SCC 335

¶200

1ti

¶201

KL,J Ctl-P- No.t52 of2020 & balch

¶202

circumstances only where there is violation ofSections - 4,5,6,7 and 10 of the COTP Act. By refening to the principle laid down by the Apex Court in Bhajan Lalro and M/s. Pepsico India Iloldings (Pvt) Ltd.7, the leamed Single Judge has quashed the proceedings in various crimes / calendar cases.

¶203

Another leamed Single Judge of the High Court of Andhra Pradesh at Amaravati in Y. Nageswara Rao v, State of Andhra Pradeshll had also an occasion to deal with the said issue and agreed with the principle laid down in Chidurala Shyamsubdera.

¶204

In Sayyed Hassan Sayyed Subhanr, the Apex Court while dealing with legality of the order passed by the Bombay High Courl in a batch of criminal writ petitions and criminal applications, which were filed challenging the registration ol FIRs for the offences under Sections - 188, 272,273 arrd 328 of IPC and Sections - 26 and 30 ol the FSS Act where there 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 ofthe Act and 1aw laid down by it. With the said frnding, the Apex Court remitted the mafter 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 ofthe cases pending before the Bombay High Court.

¶205

".2020^{Supremc(AP)348}

¶206

¶207

KL.J Cn P No.l52 of 2020 & batch

¶208

tn view of the authoritative^{pronouncementof law in the} aforcsaid^{judgments,as discussed above,comingto the facts of the} cases on hand, the allegations^{against the accusedin respectivecases} are transportation,^{possession, storage, saleand purchaseof banned} products v,2., tobacco / tambaku /^gutka /^khaini I^{zarda/panmasaLa} etc., respectively. In Chidurala^{Shyamsubdera, thelearned Single} observed that transportation of^{chewing tobaccoor khaini or pan} masala do not constitute an^{offence punishable under Section- 270 of} IPC and that manufacturing ofpan^{masalais not includedin Section-} 273 of IPC and, therefore,^{thesameis not an offence sinceit is nota} noxious food. The leamed^{SingleJudgehasfurtherobservedin the} saidjudgment which^is as^under:

¶209

"....The act done by the^{petitionersi.e.,} transportatior of khaini^{andchewingtobacco} though dangerous to human life,^{it wouldnot} spread or infect or cause^{any disease on accountof} tra$portation and if those^{productsare consumed} by human being, it^{would certainly cause damage} to the health. Therefore,^{transportationof khaini} or chewing tobacco is^not by^{itself is not an} offence under Section -^{270 of IPCand it would} falt within Section^{270 of IPC."}

¶210

Section - 272 of IPC^{makes punishablean offcnceby a}

¶211

person, who adulterates any article of^{foodor drink. Therefore,the} said section would^{onlycome into play if food or drinkis adulterated.} There is no definition of 'adulteration'^{in IPC.The defmitionof} 'adulterant' is^{found in the provisions of the FSSAct. Section - 3 (1)}

¶212

¶213

CrLP. No.l52 oF2020 & bat.h

¶214

(a) of the FSS Act deals with 'adulterant' which means a material which could make the 'food' unsafe or sub-standard or mis-branded. According to Section - 272 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 in the present batch of cases is with regard to transportation,^possession, storage, sale and purchase of banned products vi., tobacco / tambaku / gutka / khaini / zarda / pan masala etc., respectively. Therefore, according to this Court, the said allegation does not fall within^the ambit of Section - 272 ol lPC. Therefore, I agree with the^principle laid down by the learned Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V, Nageswara Raorr.

¶215

In Joseph Kurian6, the Hon'ble Supreme Court held that for Section - 272lPC to be attracted, the following should be present. (l) That the article involved was lbod and drin-k meant to be consumed by live persons; (2) that the accused adulterated it and the adulteration rendered it noxious as a 'food or drink'; (3) that the accused knew at the time of adulteration that he would sell the article as food or drink and knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court clearly held that the offence is completed on the introduction of the adulterant. 'Adulterant' would mean that a material which is mixed to make the 'food' unsafe or drhk unsafe. In the present case on hand, tobacco is not a food or

¶216

¶217

KL,J CtLP. No.l52 of)0)0 & bakh

¶218

drink and what is stated to be^mixedin it^{is not clearly establishedby} any cogent material as an 'adulterant' for the offence^{under Section-} 272 IPC to be pressed i.nto service.

¶219

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

¶220

judgment it was held as follows:

¶221

"10- In order to^prove offenc€^{under Section328 the prosecutionis} required to^prove that the substance in^{questiotr was a poison, or any} stuporying, intoxicating or unwholesome^{drug etc,that theaccused} administered the substancc to the^{complainantor causedthe} complainant to take such substance, that^{he didso with intent to cause} hurt or knowing it to be likely^{t9 that he would therebycausehurt, or} with the inteniion to commil or facilitate the commission of ao offence. It is. therefore, esseotial for^{the prosecution to prove that theaccused} was directly rcspoosible for administering^{poisongtcor causing it to} be taken by any person, through another......."

¶222

'l obacco does nol fit into this definition.

¶223

Section - 273 of IPC deals with^{sale of a noxious food or} drink, and as^{per which, whoever sells, or offers orexposesforsale,} as food or drink, any article^{which hasbeen rendered orhasbecome} noxious, or is in a state unfit for^{food or drink, knowing or having} reason to believe that the same^{is noxiousas food or drinlqshaU be} punished with imprisonment specified^{therein.Therefore,if a person} offers for sale a "food or drink" any^{article which hasbecomenoxious} or is in a state of unfit^{for "foodor drink".Thus,the said section} would apply, when an article which^{hasbecome noxiousor which has} been rendered noxious. It also^{appliesto foodor drink only. Asheld} in Sri Jaganath Enterprisess,^{the word'noxious'isnot defined in}

¶224

¶225

KI,-J Crt.P. No lt2 of2020 & batch

¶226

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 preseot criminal petitions is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco / tambaku / gutka / khaini lzarda / pan masala etc., respectively. Therefore, according to this Court, the contents ofthe complaint/charge sheet lacks the ingredients of Section - 2'13 of IPC.

¶227

As far as section - 188 IPC is concerned , as per the settled law on the subject, before an accused is charged, there must be; an order duly promulgated by the public servant; the public servant must have the lawful authority to promulgate the order; the person flouting the same should have knowledge about the order directing him to abstain from the act; he must disobey the said order with the knowledge; and such disobedience of the duly promulgated order should cause a danger to the human life etc. In Boop Singh Tyagig a Division Bench of Allahabad High Court held that right to promulgate the ordinance/order is also an issue which is being raised, because under the FSS Act, the Commissioner of Food Safety alone has the authority to pass the orders only if the article of'food' can causes danger or is injurious to health.

¶228

¶229

rJ,J C,l.P. No-t5) of2020 & bdt.h

¶230

In N.T. Rama Rao v. The State of A.P., rep. by Pulrlic Prosecutorl2 while dealing with the offences under Sections - 188 and 283 of IPC, the learned Single Judge of the combined High Court of Andhra Pradesh held as under:

¶231

'5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is tme, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Policc of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 186l and is violated, Section I95 (l) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concemed or some other pgrson to whom such a public servant is administratively subordinate to enable any Court to take cogrizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authorio/ to grant permission for the public meeting and therefore, the complainVcharge sheet is in violation of the mandatory proyision of Section 195(l)(a) ofCode of Criminal Procedure.

¶232

That apart, the offence alleged to have been conunitted under Section 283 of the Indian Penal Code by the petitioners and othen is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an

¶233

''z.^{Crim;nal Pcli(ionNo.5323of2009. dccidedoo 17.09.2009}

¶234

¶235

KL,J Crl.P. No.l52 of2020^&batch

¶236

independent of the same.^{Even otherwise,the} conduct of public mecting^{at threeroadjunctions} or obstmction to the tratlc^{couldnot havebeen} considered as causing^{any danger or injury to any} person. In so far as the obstruction^{in anypublic} way is concemed, which can^{also be coveredby} Section 283 of thc Indian^{Penal Code, the charge} sheet cites only one witness to^{speakaboutthe} trafhc^jam caused by the road^{show.But, when} the conduct of the^{publicmeetingat leastat one} place has been permitted and if the^gatheringfor lhat public meeting resulled^{in any inconvenience} by way of obstructing the^{traffic, the samecannot} be considered to be^{withnecessary guillymens rea} to construe the existence of an^{oflence punishable} under Indian Penal Code. Under^the circumstarces, none of the offences^{alleged can be} said to have any reasonable^{basis andin any view,} the complainVcharge sheet being in^violationof Section 195^{(1) (a)} ofCode^{of CriminalProcedure,} has to fail.

¶237

1. As the complaint has failed^due to^its unsustaiuability, the^{proceedingsin their entirety} have to fail, though the 1't^{accused alone} approached this Court by way of^thisCriminal Petition."

¶238

In Thota Chandra Sekhar v'^{The State of Andhra}

¶239

Pradesh, through S.H.O., P.S. Eluru^{Rural, West Godavari} Districtl3, wherein by^{relying on various judgmentsincluding N.T.} Rama Raol2 and also the^{guidelines taid downby the Apex Court in} Bhajan Lallo more^{particularly, guidelineNo.6, whichsaysthat}

¶240

rr. Criminal petition No.15248 of20l6, decided on 26.I0.20I6

¶241

¶242

KL,J Crl-P- No.l52 of202a & bakn

¶243

where there is an express legal bar engrafted in^{any of the provisions} of the Code or the concemed Act^{(underwhicha criminalproceeding} is instituted) to thc institution and continuance of^{the proceedings} and/or where there is a specihc^{provisionin the Codeor the concemed} Act, providing efficacious remedy to re&ess 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 alsofurther} 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 coglizance on the complaint hled by^{V.R.O.and it is} against the purport ofSection -^{195 (1) (a) of Cr.P.C.}

¶244

Yrde Notification No.5OI/FSS- l/2020,^{dated 06.01.2020,} the Commissioner of Food Safety,^{TelanganaDirectorateof lnstitute} of Preventive Medicine, Public Health Labs^{and Food(Health)} Administration, Narayanguda,^{Hyderabad, restricted the manufacture,} storage, distributioq kansportation^{and sale of gutka / panmasala,} 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 locallyit is} called packed in sachets /^pouches /^package in^{the entire Stageof} Telangana under FSS Act, 2006. It is^{forone year.Vide Notification} No.5O5/FSS- 1/2021, dated 06.01.2021,^{thesamewasextended forone} more year. As per the information fumished^{and instructions} received, several writ^petitions were^{filed challengingthesaid}

¶245

¶246

Ctl P- No-tt2 bf2020 & bttch

¶247

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

¶248

As far as Section - 328 of IPC is concerned, 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 will 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 administering poison, intoxicating etc., 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 will

¶249

2'.7

¶250

KL.J C.t P. No lt2 of2020 & balch

¶251

thereby cause hurt. As stated above, the allcgations^{in theentire batch} of criminal petitions are lacking. Therefore, according^{to this} Cout, the contents of the complaints / charge^{sheets lacks the ingredientsof} Section - 328 of IPC.

¶252

As far as Section - 336 of IPC^{is concemed, it dealswith an} act endangering life or^personal safety of^{others, and asper which,} whoever does any act so rashly or negligently^{as to endanger human} life or the personal safety of others, shall^{be punishedwith impris-} onment of either description for^{a term whichmay extend to three} months, or with fine which may extend to two^{hundredand fifty} rupees, or with both. tn the complaints /^{charge sheets,there is no} such allegation of rash and negligent^{act which endangershumanlife} or personal safety of others.^{Therefore, accordingto this Court,the} contents of the complaints /^{chargesheetslacksthe ingredientsof} Section - 336 ofIPC.

¶253

As far as Section -⁴²⁰ ol^{IPC is concerned,it dealswith} Cheating and dishonestly inducing^delivery of^{property.There is no} such inducement either at the^{inception or at a later stage. Thus, the} contents of complaints / charge^{sheetlack the ingredientsof Section -} 420 of tPC.

¶254

As far as Section - 269 of^{IPC is concemed,it dealswidr} negligent act likely to spread^infection of^{diseasedangerousto life,} and as per which, whoever^unlawfully or^{negligently does anyact}

¶255

2ti

¶256

KLJ C -P- No-lt2 of2o20 & botch

¶257

which is, and which he knows or has reason to believe to be, likely to spread the infection 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. 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 ofcases.

¶258

kt view of the above said discussion, according to this Court, transportation, possession, storage, sale and purchase of tobacco products are not totally barmed in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections - 269, 270,271,272 and 273,328,336 and 420 of IPC are attracted to the cases in this batch.

¶259

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 Latlo held that the police are incompetent to take cognizance of the offences punishable under Sections - 54 and 59 (l) of the FSS Act, investigating into the offences along with other offences under the provisions of the IPC. It was further held that filing charge sheet is a grave illegality, as the Food Safety Officer alone is competent to investigate and to hle charge sheet following the Rules laid down under Sections - 4l and 42 of FSS Act. tn the present case, the police have registered the crime for the offences

¶260

¶261

KI,,J C/t.P No.152 of2020 & tacn

¶262

und€r Sections - 188, 270 and 273 of IPC. Therefore, in the present batch olcases, entertaining the complaints / filing the charge sheets by the police is contrary to the principle laid down in Chidurala Shyamsubder{.

¶263

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 in, and production, supply and distribution of, cigarettes and other tobaeco products and for matters connected therewith or incidental thereto. A reading ofthe said objects of the said Act would reveal 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 shall be a part ofany advertisement.

¶264

Section - 7 of the COTP Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless

¶265

¶266

KL.J C,t P No.t52 of2020 &batch

¶267

every package of cigarette or tobacco^{product containsa specified} waming (pictorial or otherwise). Section -^{4 of theCOTPAct,bans} smoking in public^places. In 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 18^years are in an area within^{100 yards} of any educational institution.

¶268

A reading of this Act,^particularly Sections - 4,5,6^{and 7} clearly shows that there is no^general ban or^{generalprohibitionon the} manufacture/sale of tobacco^{products. 22 What is barred is merely the} sale of these products to a^person, who is below^the age of l8^years and ir an area within 100^yards of an educational instihrtion.^The other aspects covered by Sections - 5 and 7 of the COTP Act, deal with the advertisemetrt and the waming, which is to be contatted on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, accordi.ng to this Court, the above said allegations of hansportation,^possession, storage, sale and^purchase of banned tobacco products will not attract the offence under Section -7 of the coTP Act.

¶269

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 transporting, possessing. storing, selling and purchasing the banned tobacco^products to the customers 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

¶270

¶271

trJ,J OLP.lio.l52 of )A20 & batch

¶272

for better appreciation of the case and to decide the issue in questiou,

¶273

and the same is as under:

¶274

"20. Putrishment for failure to give specifi€d warnilg and Eicotine and tar contents. (1) ...

¶275

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on thc package or on their label, the specified waming atrd the nicotioe and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extetrd to one year, or with fine which may extend to one thousand rupees, or with both, aIId, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees."

¶276

Thus, Section - 20 ofCOTP Act deals with punislnnent for

¶277

failure to give specified waming 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 specified waming on the.said products. In view of the same, the contents of the complaints / charge sheets lack the iagredients of Section - 20 (2) 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 o[ly contrary to Section - 20 (2) ofCOTP Act, but also contrary to the principle laid down in Chidurala Shyamsubdera. L:r 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

¶278

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Crl.P. No 152 o12020 &batch

¶280

principle laid down by the leamed Single Judges^{of the High Couttof} Andhra Pradesh in Chidurala^{Shyamsubdera,} Sri^Jaganath Enterprisess and V. Nageswara^Raoll.

¶281

For the foregoing discussion^{andthe authoritativepdnciple} of law, Criminal Petition^{Nos. 3768, 3879,4046,4077, 4098, 4099,} 4100, 4102, 414t, 4151, 4151, 4182,⁴¹⁸⁷ ,^{4247, 4249, 4251,4258,} 4262. 4277, 4405, 4415, 4542,^{4615,4640, 4681,4727,4775 atrd} 4825 of 2021 are allowed^quashing the^{proceedings againstthe} petitioners therein in the respective crimes mentioned therein.^Since the proceedings in the aforesaid Criminal^Petitions are^quashed against the respective^petitioners, the^respective Station^House Officers / Investigating Officers^{arehereby directedto retumthe} seized property / vehicles on^{propffidentificationand verification of} ownership under due acknowledgment.

¶282

Further, Criminal Petition Nos. 152,^{153, 155,162} &⁵⁸²⁶ of 2020, 3498,3500, 3509, 3514,^{4070,41.10, 4119, 4140, 4178,} 4194, 4216, 4230, 4361, 4612, 4622 ar:d 4632 of^{2021 arealso} allowed quashing the^proceedings against^{the petitioners thereinin the} respective Calendar Cases mentioned therein. Since^{the proceedings} are^quashed, the respective^{petitioners are at liberty to} file^appropriate applications before the concemed Magistrate^forretum of^{the seized} property / vehicle and the Magistrate shall consider the same in accordance with law.

¶283

KI,J Crt P No.t52 of )D0 & batct

¶284

As a sequel, miscellaneous pctitions, if any, pending in all the

¶285

Criminal Petitions shall stand closed.

¶286

K. LAKSIIMAN, J

¶287

o5rtr JtrLY, zozl

¶288

Nqllg:^{L.R. copy to be marked.} (B/O.) Mgr

Obul Setty Hari Babu v. State of Telangana

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Obul Setty Hari Babu v. State of Telangana

Case brief

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