Allowed

P.L.Manoj Kumar @ kankanal Sreenivasa rao, v. The State of Telangana

Telangana HC19 Nov 2024CRLP/13921/2024

Case brief

AI extract

What is this about?

Petition to quash tobacco-sale prosecution against accused No.2 in a Kodad calendar case under BNS and COTPA offences. Both sides agreed the matter was covered by an earlier batch order. Court allowed the petition on those terms, quashed the proceedings and directed return of seized property.

What did the court decide?

Proceedings in C.C. No. 805 of 2024 quashed; SHO/IO directed to return seized property on proper identification and verification under due acknowledgement.

P.L.Manoj Kumar @ kankanal Sreenivasa rao, Vs The State… — Narcotics (NDPS) | Telangana HC (2024)

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132s7 |

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE NINETEENTH DAY OF NOVEN/IBER TWO THOUSAND AND TWENry FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE JUWADI SRIDEVI

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CRIMINAL PETITIO N NO: 13921 OF 2024

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Between:

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irf^{l.rlllryot Kumar_} @^{KankanalSreenivasa Rao,S/o.Laxminarsaiah} @ M.usalaiah, Ag_e.3Syears, Occ. private Employee, R/o. H.No. i_1i-qOZ, Chaitanyapuri Colony, Nalgonda Nalgonda Disirici

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...Petitioner / Accused -2

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AND

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1 The State of Telanga.na, Rgp py its public prosecutor, High Court for the State of Telangana Hyderabad^'

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The Sub-lnspector of Police, Kodad Town police Station, Suryapet District

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Respondent / Complainant

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Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings in C.C. No. 805 of 2024 on the file principal Junior Civil Judge Court Kodad, Suryapet District against the petitioner.

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l.A. NO: 2 OF 2024

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Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to direct the respondents in C.C. No. 805 of 2024 on the file Princ(ral Junior Civil Judge Court Kodad, Suryapet Dlstrict to release the property Amber149 Packets ( Each packet containing 28 sachets) '149x28=4172 Sachets, Each Packet Rs 2601 149x260 Worth Rs.38740/-, 2) Bluebul-25 Packets ( Each packet containing 10 sachets) %x10=25O Sachets, Each Packet Rs.110/-, 25x1 1O Worth Rs.27501, 3) Vimal-S7 Packets ( Each eontaining 30 sachets) 57x30=1710 Sachets, €ach packet Rs.130l 57x13O Worth Rs.7410l-, 4) R R Tobaoco-34

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Packets ( Each containing^{20 sachets) 34x20=680Sachets' Eachpacket Rs 150/-} ,34x150WorthRs.5100i-,S)-Famous-g'lPackets(Eachcontaining30sachets) 91x30=2730 Sachets,^{Each packet Rs.70l- 91x70 Worth Rs. 6370/-6). Super ',|26-} 47 packers Each^{packel Rs 60/- 47x60 worth Rs.2820/-Allworth Rs 63,190/-} SuryapetDistricttoreleasethepropertyl)Peacockbrandcigarettes-seizedin FIR No. 229 of^{2024 on the file of KodadTownPolicestation, surypetDistrictin} favor of the^{Petitioners/Accused.}

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ThisPetitioncomingonforhearing,uponperusingtheMemorandumof Grounds of criminal^{Petitionand upon hearing the argumentsof smt B Keerthi} Reddy, Advocate^{Rep. Sri Bala Murali Y, Advocate for the Petitioner and Mr} Jithender Rao^{Veeramalla, AdditionalPublicProsecutor on behalf of the} Respondents.

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The Court made the^{following Order :}

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t t

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THE IIONOURABLE SMT. JUSTICE JUVVADI SRTDEYI

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C PETITIONNo.1392lof 2024

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ORDER:

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This criminal petition is filed under Section 52g of Bharatiya Nagarik Suraksha Sanhitha, 2023 (forshort .BNSS,), seeking to quash the proceedings against the petitioner/accused No.2 in C.C.No.g05 of 2024on rhe file of principal Junior Civil Judge Court, Kodad, Suryapet District against the petitioner registered for the offences punishable under Section s 275,223(b) of Bharatiya Nyaya Sanhi tha, 2023 (for short BNS) and Section 24(I) of Cigarenes and Other Tobacco products Act. 2003.

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Heard Smt. B.Keerthi Reddy, learned counsel representing on trehalf of Mr.y.Bala Murali, Iearned counsel for the petitioner and Mr.Jithender Rao Veeramalla, leamed Additional public

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Prosecutor appearing for the State and permed the record.

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Learned counser for the petitioner submitted that the rnatter is squarely covered by tfie order, dated 05.07.2021 in

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Crl.P.No. I 52 of 2020and batch.

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15, t Crl.P.No.13927 ot2024

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Learned Additional Public^prosecutor also submitted that the issue in the present criminal petition is covered by the earlier order in the above Criminal petition.

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.In view of the said representation and as the matter is squarely covered by the order in the above Criminal petition, this criminal Petition is ailowed in terms of the above said order, adopting the reasoning contained therein. The proceedings against the petitioner/accused No.2 in C.C.No.g05 of 2024 on the file of Principal Junior Civil Judge Court, Kodad, Suryapet District are hereby quashed. Further, the Station House Officer/Investigating Officer is hereby directed to return the seized property on proper identification and.verification under due acknowledgement.

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Pending miscellaneous applications, if any shall stand

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closed.

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Sd,- N. SRIHARI ASSISTANT REGISTRAR r /TTRUE COPY// D, i

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SECTION OFFICER

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To,

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1 The Principal Judicial First Class ltlagistrate at Kodad

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2 The Principal Junior Civil Judge Court, Kodad, Suryapet District 2 The Station House Officer, Kodad Town PS, Suryapet District

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I I

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4 lwo CCs to tre public pr Hyoeraoiojoi^{' --'tu rroSecutor' H(7h Court} for

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State of Telangana.

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One CC to Sri Bala Murati y, Advocate [OpUCl

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6, Two res

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Vtugh

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IAlo wiih the copy of the Order dated OS-07_ in Crl.P. No. 152 t2O2O)

! l i I I i

HIGH COURT

DATED:1911112024

\ \

ORDER

CRLP.No.13921 ot²⁰²⁴

-f H 'r,q
((
l oo 2 1 lll0t/ 20?l p
o .,:)
*
P.^

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ALLOWING^{THE CRLP}

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acof("^d X*

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IN TIIE IIIGII COURT TOR TUE STATE OF TELAT\GANA

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A I: tIYDERABAI)

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CORAi\I:

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TIIE gON'BLE SRI JUSTICE K. LAKSTIMAN

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CRINILNAL PETITION No,I52 OF 2020 & Batch

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70 DeliYered 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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Vs.

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$ The State ofTelangana, rep-by Public Prosecutor FIigh Coun of Telangana, Hyderabad & another

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. Respondents

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| [or respective Petitioners

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: Mr. M.A.K. Muktreed Mr. Gajaaand Chakravarthy Mr. K. Surender

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M!. Praveen Kumar Veeriala, Ms. P. Radhika

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Mr. Srinivas Reddy Balakisti Ms. C. Sunitha Kumari Mr. Kondadi Ajay Kumar Mr. S.M. Subhan

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Ms. N. Arthi

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Mr. Y. Bala Murali

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Mr. Boggula Raju Mr. S. Chandrasekhar

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Mr. V. Yadukrishna Sainath Respective leamed counsel

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"^{For Respondents}

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: Leamed Public Prosecutor

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< Gist

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Head Nole

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? Cases Referred

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r. 20r8 ArR^(SC) 5348

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2.20t6cn.L.1.2401

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2019 SCC Online Bom¹⁸⁵⁷

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Crl.P. No.373I of2018 & batch,^decided on^2?.08.2018

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2020(l) ALT(Crl.)215(APllC)

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r995^(l) SCJ 277 7. 201I (2) Crimcs 250 I 2017 SCC Online Cal 16323 9.2002Ctl.L.!.2812

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1992 Supp^(l) SCC¹³⁵ IL 2020 Supreme^(AP)348

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Crimjnal Pelilion No.5323 of2009,^{d€cidedon17.09.2009}

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Criminal Petition No.15248 of20l6,^{decidedon26.10.20I6}

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HON'BLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION Nos.l52. 153. 155. 162 & 5826 OF 2020 AND 3498. 3500. 3509. 3514.3768. 3879. 4046. 4070. 40?7.4098.4099.4100. 4102. 4ll0. 11t9. 4t40. 4141. 4151. 415'7 . 4178. 4182. 4187. 4194.4216. 4230. 4247. 4249. 1251, 4258. 4262. 4277. 1361, 4405. 4415, 4542. 4612. 4615. 4622. 4632. 4640. 4681, 4727. 4'.1',15 & 4825 0F 2021,

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COMMON ORDER:

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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

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Cases, offences alleged, nature of offences etc., are mentioned in

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the following tabular form:

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SI, No. l	Crl.P No.	CrimeNo	Number	offences aJlegedly cornmitted	NatureofofleDce
0l	376ti21	217120ofPS Manoharabad	sole accused	272,273 IPC& 20 (Z\rlw1(2)of COTPA	Transponationof,q.mb:r lobacco
02.	)8',7912t	31/2tol PS Kadam	sole accused	270&273tPC	Saleofbanne'd tobacc,r
03	1046i21	78/21ofPS (T) Adilabad	Al&2	-do-	Saleofgutkrtobacco illegallyin godo,"r!
loo	4077/21	2t121ofPS Eassoan	sole	-do	Possessionofgutka /lobaccoinpanshop
05	4098/2r	18s/21ofPS(T) Nirmal	A1to3	210,2'73tPC& 20(2)ofCOTPA	Transportationot prohibrled sutka
06	4099/2r	No.l62l ofPS Koutala	sole accused	2'70&273IPC	Possessionoftobaccc productsinthehouse
07	4100/21	No.l8l21ofPS Easgoan	sole	2'70&273lPC	Possessionofbanned gutka&olbertobaccc itemsin^panshop
08.	4102/21	455/21ofPS KukaFaUy	sole accused	336,273&188 IPC&59(i)of rSSA	Tmnsponation and sal. ofprohibrtedtobacco products
09.	4t4t/2t	45/21ofPS Chiragpally	A1to3	270&273tPC& 20(2)rlw7(21ot COTPA	Trdnsponationof tobacco products
t0	4l5ti2l	198/21ofPS Chouruppai	sole accused	272&273 tPC& 20 (2)ofCOTPA	Slorageoftobacco pmductsforsale
lt	4151/21	Il4l21ofPS Chityal(NLC)		272, 273&328 rPC&20(r)&7 (3)ofCOTPA	Purchase and saleof prohjbiledtobacco products
t2	I41822		74121ofPS Raghunadhpalem	AI&2	2',70&2'73tPC
1l	4187/2t	202/21ofPS(T) Mancherial	sole accused	-do-	Possessionof bamed tobacco^products

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1.1	1211t21	61121ofPS Town Adilabad	accused	-do	Poss.ssioDofbanned gutkaproducts
IJ	4219t21	l0l/21ofPSI TowrAdilabad	Ai &2	-do-	Saleofgutkaand
l6	42)ti21	90i2tofPsI Town Adilabad	sole accused	-do-	Aboutto transport noxious gulkaand
17	I 425Et21	9ll21ofPSI Town Adilabad	sole accused	-do	Saleofbann€dgulkaand tobacco products
tt.	lrzozzr	107121ofPSI Town Adilahad	Al&2	-do-	TmnsporlatioBoftutka andtobacco Droducts
19	42',71/21	162121ofPS Abdullapurmet	Alro3	188,212,2'73& 328lPC	Saleofbamedtobacco (tambaku)productsin lo.ry
20	4405/21	202121ofPSI TownNalgonda	sole accused	tEE,272&273 I?C	Tmnsportationof gutka./tobacco products
2).	44t5/2t	232121ofPSIl (T)Nalsonda	sole accused	-do	PossessioDofbanned gutka /tobacco products
2)	4542/2t	E7l21ofPSIII (T)Kothagudem	At&2	188,269,2'70, 2'13r/w 14IPC & 3ofEDA&51 (b)ofDMA	Possessionoftobacco products inkimnashop
23	46t5/21	225D1ofPS Nirmal Town	A1&2	270&.27f IPC	PossessioDofprohibiied tobacco^productsfor sale
21.	1610/21	89/20ofPS Mamada	AI	-do- r/rv34IPC	Traff?ortationof banned tobacco/gutka pockets
25.	4681/21	186,21ofPS Peddavoora	A2	328rlw5ll,2'72 &273 tPC	Possessionofbanned Sutka^&tobacco products inkjmnashop
26	4121/21	l64i2lofPS Adibatla	A2	270,272&273 IPC&20 (2)of COTPA	Transportationof cigarette or other tobacco producEwithout valid license
2'7	4115i21	214/21ofPSI (T)Nalgonda	AIto4	328,2'72,273& I88IPC	Saleofgulka &khaini
23	1825121	215i21ofPS Khammam(R)	At&2	328,270&271 r/w5lIIPC&20 (2)ofCOTPA	Tmnspo(ation ofbanned gu*a

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			CA	LENDARC	ASES
		3515/19of		270, ?73&
29.	r52120	I.AJMFC, Warangal	A2	188,420tPC &58ofFSSA	Transponadon ofbamedzatda Products
l,o I	t5li20	2121/19ol \VIIAC\lV, H-vd.	A2	272&213 IPC&59of FSSA, 2006	Saleofzardai1le8ally
l1	155r20	l5l8/19of I'AJlvlFC,	A3	420,2-/0& 271 tPC&58 ofFssA	Transportation ofbannedzalda
32	t62i2A	4137/18of XIAMM, Sec.bad	A2	272,273,3)6 &420 IPC& 20 (2)ol COTPA	Saleofprohibitedgutkaand chewing tobacco produc!s
l3 I	5826/20	Special Magistrate ofIIClass, Jagtiai	Al&2	t88,270& 273lPC	Transportation ofAmbergutka pockets
31	1198/2t	216nAof JFCM, Devarkonda	AI&2	420&273 IPC	Saleofbannedtobaccoandgutka products
35	1500/21	963/19of JFCM, 'liryalguda	Alro4 tt	420&273 rPC&20(ii) ofcoTPA,2oOl	Trans?onation of tobaccoand gutka products

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36.	3509/21	45A20of XXV MMC, tbrahimparan	Al&2	1r38,270 & 2'73tPC,20 (2)ofCOTPA, 3ofEDA& 51 (b)of DMA	Storageofbarned^gutkaandolh.r tobacco pmductsilleBally forsale l I
3',7	3514/21	63U19of XXVMMC,	Al!o8	r88,270,273 &420 tPC& 20 (2)of COTPA	Supplyofgutkaandother iobacco products
38	1010t21	547/21of PJMFC, Gajwei	A1&2	2'/2&213 rPC&20(2) r/w 7(2)of COTPA	TransponatjonofAnertobacco
39	4)10t21	509120of Spl.PCR Mobile Court-cum- JMFC, Adilabad	Alto5	2'70&213 rPC&20(2) rlw 1(2)of COT?A	Trans?onationofpanmasalaand bannedgutka
,10	4lt9t21	512/20of Spl.PCR Mobile Coun-cum- JMFC, Adilabad	A1to4	210, 271.2'72 &2'73rlw34 ]PC Sec.3ofEDA	'l'rrnrporturron ofaotton ,aad. und1 banncdgulka l
1l	1110t21	STC No.20l21of IVAMM- cum-IV AJCJ, L.B. Nagar	A1&2	272&211 IPC&Sec.20 (1),20(2)of COTPA	Tmnsporlationofballned tobacco andgurka
42	4)-t8/2)	810D1of IAJMIC, Kharnlnam	sole	2'70&273 rPC&20(2) ofCOPTA	Purchase and saleofbanned gutka]
.11	4194/21	616'7nlof XVIIACMM, Nampally	sole accused	188,272& 2'73tPC&20 (2)&5of COTPA	Saleoftobaccoproductsinhi! shop anddisobeyinB lhe rulcs imposedbyGovr.in NoLNo.505/FSS
41	12I6r'.21	1298/21of PJMFC, Klarnmam	Al&2	270&213 rPC&20(2) ofCOTPA	Transportationof Ambergutkz
,15.	4230t21	829/21of PJMFC, K}IaInmam	Al &2	-do-	Tmnsponation ofgutka/pan masala
,16	1361/',2I	108/21of AJMIC, Asifabad	Al&2	270&213 IPC	Possessionof tobaccoproCucr: illegallyforsale
1',7	16t2t2t	533D0 AJMIC Nirmal of	Sole accused	do-	Purchase and saleofprohibitec guka pockets
18	4622t21	622/19of AJMFC, Nimral	At&2	do'	Possess'onofgutkapacketsarbus standlorsaleillegally
19	1612121	413120 of AJMIC, Nirmal	A3	-do-r/x14 IPC&20(2) ofCOTPA	Transportation of bannedtobac(o products

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

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Mr. K- Surender, Mr. Praveen Kumar Veeq'ala, Ms. P. Radhika,

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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. Yadukrishna Sainath, learned counsel appearing on behalf of respective perilioners 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 of by way of this 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 viz., tobacco / tambaku / gutka / khaini / zarda lpan masala respectively. The offences alleged against the petitioners are under Sections - 188, 270, 269,271,272,273,328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short 'lPC'); Sections - 20 (l), 20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition ol Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short'COTP Act'); Secrions - 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 - 51 (b) of the Disaster Management Act, 2005 (for short DS Act) respectively.

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The respective leamed counsel appearing on behalf of the petitioners in the above criminal petitions would submit that the contents of complaint / charge sheet lacks the ingredients of the offences alleged against the accused. For the offences under the provisions of FSS Act, only Food Safety Oflicer is having poryer to initiate criminal proceedings against accused and the police are not having any power to register a case for the offences under the provisions of FSS Act. There is no inducement by the peritioners and, therefore, offence under Section - 420 of IPC does nol arise. According to them, the contents of complaint / charge sheet are also lacking the ingredients ofthe offences under Secrions -269,270.271. 2'12,273,328 and 336 ofIPC.

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i) According to them, there is no violation of Sections - 20 (l), 20 (2) a;nd 5 read with 7 (2) and 7 (3) of rhe COTp Act. The Investigating Officers / Complainants without following rhe procedure laid down under the Code of Criminal Procedure, 1973 ({br short 'Cr.P.C.'), have registered the cases for the offence under Secrion - 188 of IPC and laid charge sheet against the accused. Necessary ingredients to attract the provisions of Secrion - 3 of rhe ED Act and Section - 5l (b) of the DM Act are lacking in rhe complaint / charge sheet.

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

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6, On the other hand, leamed publio prosscutor rcferring to the

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principle laid down in the State of Maharashtra v. Sa).yed llassan Sayyed Subhanl by the Hon'ble Supreme Court and in Ganesh Pandurang Jadhao v. The State of Maharashtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtra3 by the Bombay High Court would submit that police are having power to register cases under various provisions of IpC. COTp Act, ED Act and DM Act. There is no inegularity in registering crimes, seizing material including the vehicles and laying charge sheet against respective accused in the aforesaid crimes / calendm cases. According to him, the accused were transporting possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku / gutka / khaini / zarda / pan masala respectively. According to him, the accused have to face either investigation or trial and prove their innocence, and instead of doing so, they have filed the presenr criminal petitions under Section - 482 of Cr.p.C. which cannor be considered at this stage.

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i) With the above said submissions, leamed public prosecuror sought to dismiss the above criminal petitions.

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

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'.20i8AlR(sc)5348

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'.^{20rccn t. J 2401}

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r. 2019 SCC Online Bom 1857

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RELEVANT PROVISIONS^{UNDER IPC}

¶120

"188.^{Disobedietrceto order duly promulgatedby public} servant.-Whoever, knowing^{that. byan order promulgatedby} a public servant lawfully empowered to^{promulgate such order,} he is dtected to abstain fiom a certain^{act,or to takecertain} order with certain^property in^{his possession} or^underhis such management, disobeys such direction, shall, if disobedience causes or tends to cause obstruction,^{aonoyance or} injury. or risk of obstructioD. annoyaDce or^{injury.to anyperson} lawfully employed, be punished with simple imprisonnent^{for a} term which may extend to one month or^with fine^{which may} extend to two hundred rupees, or with both; and if^such disobedience causes or trends to cause dang to human^life, health or safety, or causes or tends to cause a riot or affray,^shall be punished with imp sotrment of either description^{fora term} which may extend to six months, or with fine which may extend to otre thousand rupees, or with both.

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Explanatiotr. It is not necessary that the offender should intend to produce harm, or contemplate his disobedience^as likely to produce harm. It is sufficient that he knows oflhe order which he disobeys, and that his disobedience produces- or is likely to produce, harm.

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Illustration An order is promulgatcd by a public seryant lawfully empowered to promulgate such ordcr. directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger ofriot. A has commifted the offerce defined in this section."

¶123

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

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"270.^{Malignantact likely to spreadinfectionofdisease} dangerous to life. Whoever malignantly does any act which

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is, and which he knows or bas reason lo believe to be, likely lo spread the infection of any disease dangerous to lifc, shall bc punished with imprisonment of either descriprion for a term which may extend to two years, or with ftne, or with both."

¶126

"271. Disobedience to quarantitre rule.-Whoevcr knowingly disobeys any rule made and promulgated by the Govemment for putting any vessel into a state ofquamntine, or for regulating the intercourse of vessels in a state of quaranrine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and olher places, shall be punished with imprisonment of either descriprion for a terrn which may extend to six months, or with fine. or with both."

¶127

"272. Adulteration of food or alritrk intended for sale.Whoever adulterates any article of food or drinh so as ro make such article noxious as food or drink, intendi[g to sell such article as food or drink, or knowing il to be likely that the same will be sold as food or drink, shall be punishcd u.ith imprisonEent of either description for a term which may extend to six Eonths, or with fine which may extend to one rhousand rupees, or widr both."

¶128

"273, Sale ofnoxious food or drink. Whoever sells, or offem or exposes for sale, as food or driak, any anicle which has becn rendered or has become ooxious, or is in a state utrfit for food or drink, knowing or havlng reason to believe that the same is noxious as food or drink, shall be punished with imprisonmeol of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees. or with both."

¶129

"328. Causing hurt by means of poison, etc., with intent to commit an olfence.-Whoever administers to or causes to be taken by any person any poison or any srupefuing, intoxicating or unwholesome drug, or other thing with inlent to cause hun to such person, or with intent to commit or to facilihte the commission of an offence or knowing it 1o be likely that he will thereby cause hun, shall be punished with imprisonment of

¶130

either description for a term which may extend^{to ten years, and} shall also be liable to fioe."

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"336. Act etrdangeriDg life or personal safety of others.Whoever does any act so rashly or negligently as to endarger human life or the personal safety of others, shall be^punished with imprisonment of either descriptiol for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both."

¶132

"420. Cheating and dishonestly induciug delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to d€liver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anyhing which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of eilher description for a term which may extend 10 seven years, and shall also be liable to fine."

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"34. Acts done by several persous in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention ofall, each of such persons is liable for that act in the same manner as if it were done by him alone-"

¶134

"511. Punishmcnt for attemptilg to commit offences punishable with imprisonmelt for life or other imprisotrment. Whoevcr attempts 10 commit an offence punishable by this Code with imprisonmert for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the conmission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt. be punished with imprisonment of any description provided for the offence, for a term which may extcnd to one-halfofthe imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or rvith such fine as is provided for the offence, or with both."

¶135

BELEVANT^PROYISIO

¶136

"5. Prohibition of advertisement of cigarettes and other tobacco prod[cts.-(l) No person engaged in, or purported to be eogaged in the production, supply or distribution ofcigarettes or aoy o1hff tobacco products shall advenise ard Do person having control over a medium shall cause to be adverlised cigarettes or any other tobacco pro&rcts through that medium and no person shall take pafl in any advenisement which dire{tly or iudirectly suggests or prorDotes the use or consumption ofcigarettes or any other tobacco products.

¶137

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

¶138

(a) display, cause to display, or pemrit or authorise to display any advertisement ofcigarettes or any other tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a film or video lape containing advertisement of cigarettes or any other tobacco product; or

¶139

(c) distribute, cause to distribute, or permit or authorise to disribute to the public any leaflet, hand-bill or document which is or which contains an advertiseme[t of cigarettes or any other tobacco producti or

¶140

(d) erect, exhibit, fix or letain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoevcr in any^place any advertisemeot ofcigarettes or any other tobacco product:

¶141

Provided that this sub-seclion shall not apply in relation tc

¶142

(a) ao advertisement of cigarettes or aDy othq tobacco product in or on a package containing cigarettes or any other tobacco product;

¶143

(b) advenisement of cigarettes or any other tobacco product which is displayed at the eBtraoce or inside a warehouse or a shop where cigarettes and any other tobacco^products are offered for distribution or sale,

¶144

(3) No person, shall, under a contract or olherwise promote or

¶145

agree lo promote lhe use or consumption of

¶146

(a) cigarettes or any other tobacco prcduct; or

¶147

(b) any kade 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 aaother^person."

¶148

"20. Punishmeut for failure lo give specified warning and nicotine and tar contents.-

¶149

(l)Any person who produces or manufactures cigaretles or

¶150

tobacco prcducts, which do not contain, either on the^package or

¶151

on their label, the specified waming aod the nicotine and tar contents, shall b the case of first conviclion be punishable with imprisonment for a term which may extend to two years, or with fine whicb may exlend to five thousand rupees, or with both, aod for the second or subsequent conviction, u/ith imprisonment for a term which may extend to fiye years and with fine which may extend to len thousaDd rupees.

¶152

(2) Any person who sells or diskibutes cigarettes or tobacco products which do not contain either on the package or on their label, the 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 one year, or with fine which may exrend to one thousand rup€es, or with both, and, for the second or subsequeDt conviction, with imprisonment lor a rerm which may extend to two years and with fine which may extend to three thousand rupees.,'

¶153

"7. RestrictioDs otr trade &trd coqlm€rce in, and production, supply and distribution of cigarettes and other tobacco products.

¶154

(l) No person shall. direcrly or indirectly, produce, supply or distribute 6 cigare es or any olher tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or disrributed by bim bean thereon, or on its iabel such specified waming including a pictorial waming as may be prescribed.

¶155

(2) No person shall carry on trade or commerce irl cigarettes or any other tobacco products unless every package ofcigarettes or any other lobacco products sold, supplied or distributed by hirD bears thereon, or on its labcl, the specified warning.

¶156

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

¶157

(4) The specified waming shall appear on trot less than one of the largest panels ofthe package in which cigarettes or any other

¶158

tobacco products have bcen packed for distribution, sale or supply for a valuable consideration.

¶159

(5) No person shall, dircctly or indirectly, produce, supply or distribute cigarelles or any orher tobacco products uoless every package of cigarettes or any other tobacco products produced, supplied or disributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with tbe maximum pemissible limits thereol Provided that the nicotioe and tar contents shall not exceed the maximum permissible quantiry thereof as may be prescribed by rules made under this Act."

¶160

ANT PROVISIONS UNDER F. A

¶161

"58,^{Petralty for contraventionsfor rhich no specilic peDalty} is provided.-Whoever coutavenes any provisions of this Act or the rules or regulations made thereunder, for the contravertion of which no penalty has been separately provided in this Chapter, shall be liable to a penalry which may extend to two lakh rupees."

¶162

"59. Putrishment for uosafe food,-Any person wbo, whether by himself or by any other person on his behalf, maoufactures for sale or stores or sells or disaibules or imports any article of food for human consumption which is unsafe, sball be punishable,-

¶163

(i) where such failure or contravention does not result in injury, with imprisonmeDt for a terr rvbich may exteud to six monlhs and also with fine which may extend to one lakh rupees;

¶164

(ii) where such failure or contravention results in a non-grievous injury, with imprisonmenl for a terrn which may extend 1o one year aud also wilh fine which may extend to three lakh mpees; (iii) where such failure or cootravenlion results in a grievous injury, with imprisooment for a telln which may extend to six years and also with fitre which may extend to five lakh mpees; (iv) where such failure or contravention results in death, with imprisonment for a term rvhich shall not be less than seven years but which may exteod to imprisonment for life and also with fine which shall not be less than ten lakh rupees."

¶165

RELEVANT PROVISION UNDER E.D. ACT:

¶166

"3. Penalty. Any person disobeying any regulation or order made undcr this Act shall bc deemed to have committed ao offence punishable under sectioD 188 of the Indian Penal Code (45 of I860 )."

¶167

RELEVANT PROVISION UNDER D.i\t. ACT:

¶168

"51. Punishmetrt for obstructioD, etc,--

¶169

( I ) Whoever. without reasonable cause- (l) Whoever, without

¶170

reasonable cause "

¶171

(a) obstrucls any officer or employee of the Central Govemmetrt or lhe State Govemment, or a person authorised by the National Authority or Stare Authority or Disrict Authority in the discharge ofhis functions under this Act; or

¶172

(b) refuses to comply vith any direction given by or on behalf of lhe Central Govemment or the State Govemment or the National Executive Committee or the State Executive Committee or the District Authority uader this Act, sball on convicrion be puoishable with ioprisonment for a term which may extend lo one year or with fine, or with both, and if such obslruction or refusal to comply with directions results in loss of livcs or imminent danger thereof, shall on conviction be punishablc rvith imprisonment for a term which may extend to tu'o vears. nores on clauses Clauses 5l to 58 (Secs. 5l to 58) seeks to lay down what will constitute an offence in telms of obstruction of the funclioos under the Act, false claim for relief, misappropriarion of relief material or funds, issuance of false waming. failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivalce at contrav€ntion of the provisions of the Act. Thc- clauses also provide for penalties for these offences.,,

¶173

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

¶174

integra. A leamed Single Judge of the High Coun of Judicature ar Hyderabad lbr rhe State ofTelangana and the State ofAndhra pradesh in Chidurala Shyamsubder v. State of Telangana'r had an occasion to deal with lhe issucs involved in the present criminal petitions. Alter relerring 10 various provisions of IpC, FSS Act, COTp Act and also the principle laid down by the Apex Court and other High Courts

¶175

'.^Crl.P.No.l7l I^{of 20t 8} & barch, dccided on 27.08.2018

¶176

in sevcral judgurents, the leamed Single Judge had fiamed the issues,

¶177

which are as under:

¶178

"l) Whether the respondent/ Sub-lnspector of police, is competeot to investigate inlo tbe offence punishable under Sections 54 and 59(l) of IrSS Act?

¶179

Whether $e peritioners ia all the petitions are found committing any act with malicious intenrior, with knowledge and reason lo believe that such act likely to sprcad the infection of any disease dangerous to life? And whether the petitioners selling or offering or exposilg for sale as food or drink, any anicle which has been rendered or has become noxious or is in a state u.fit for food or drink or reason to believe that the same is noxious as food or drink? If so, are they liable to be proceeded for $e offence punishable under Sections 270 atd 2.13 IPC,?"

¶180

After an elaborate discussion and on consideration of various aspects, the leamed Single Judge has held that the police cannot take cognizance of the offence, to investigate into and file charge sheet against the accused therein for the offence punishable under Sections - 54 and 59 (l) of FSS Act, as they were nor empowered under the said Act to launch the prosecution, but only Food Safety Officer appoinred by the Govemment alone is competenr to launch proseculion for those two offences. With the said findings. the learned Single Judge has quashed rhe proceedings where rhe offences are under Sections - 54 and 59 of FSS Act initiated by the police.

¶181

I 0. In the very same judgment, the leamed Single Judge further held that chewing tobacco and khaini are not the^.food, within the definition of Section - 3O ofthe FSS Act and the manufacture, sale or

¶182

exposing for sa'le of^{tobacco etc.,is govemed by the provisionsof} COTP Act, but not by^FSS Act^{andso also theprovisionsof IPC. The} respondcnts - police are incompetent to^{investigate the offence} punishable under Sections - 54 and 59⁽¹⁾ of the^{FSS Act and} allegations in the charge sheet^{coupledwith thestatementsdo not} disclose the commission ofthe^{offance punishable under Section - 273} ol IPC since transportation of noxious food^{is not includedunder} Section - 273 of lPC. The act^done by^{the accusedthereini.e-,} transportation of khaini^and chewing^{tobaccothough dangerous to} human lil'e. it would not spread or infect or^{cause any diseaseon} 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 ol'the COTP Act have no application, thereby regislration of crime on the^ground of violation of Sections - 7^{(1) (2) (3) (5) and} Section - 26 ofCOTP 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.

¶183

I l. In Sri Jaganath Enterprises Eluru yasadhi Tripati Rao

¶184

v, The State ofAndhra^pradeshs, a leamed Single Judge ofthe High Courl of Andhra Pradesh at Amaravti had also an occasion ro dsal with the said issue. Afler 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 Ramdhani Chaurasia3, Joseph Kurian v. State of Kerala6, Sayyed Hassan Sayyed Subhanr, M/s. Pepsico India Holdings @vt) Ltd., v. State of U.p.7, Sanjay Anjay Stores v. Union of IndiaE, Boop Singh Tyagi v. Statee, State of Haryana v. Bhajan Lalro and Chidurala Shyamsubdera, fie learned Single Judge has quashed the FIRs / Calendar Cases- The learaed Single Judge referring to the law laid down in Chidurala Shyamsubdera held that despite the said authoritalive pronouncement of law, stahrs quo continues. The said judgment attained finality. Even then, the police are registering cases against accused on the very same allegations for the very same offences.

¶185

i) Rel'erring lo rhe provisions of Sections - 153, 188, 269,270, 271, 272, 773, 284, 328, 353 of IPC, the leamed Judge in Sri Jaganath Enterprisess held that the offences registered under the said Sections are not maintainable. It further held that the provisions of the COTP Acl can only be pressed into service in the limited

¶186

'.2020{ I) nLr^{(c,1.)215 (ApHC)} 6 t995 ( l) SCJ 277 r. 201I (2) Cnmes 250 s. 20t 7 SCC Ontinc Cat 16323 ''. 2oo2 crt.L.r.2t12

¶187

ro. 1992 Supp (r ) SCC 135

¶188

circumstances only where^{there isviolationof Sections} 4, 5, 6,7 and 10 of the^{COTP Act.By referringto the principlelaid} down by the Apex Court in^{BhajanLalr0 and lWs. PepsicoIndia} Holdings (Pvt) Ltd.?, the^{leamed SingleJudgehasquashed the} proceedings in various crimes / calendar^cases.

¶189

Another leamed Single Judge of^{the High Court of Andhra} Pradesh at Amaravati in V. Nageswara^{Rao v. Stateof Andhra} Pradeshll had also an occasion to^{deal withthe said issue and agreed} with the principle laid down in Chidurata Shyamsubdera.

¶190

In Salyed Hassan Sayyed Subhanr,^{the Apex Courtwhile} dealing with legality of^the order^{passedby the Bombay High Counin} a batch of criminal writ petitions and criminal^{applications, which} were filed challenging the registralion of^FIRs for^{the offences under} Sections - 188,272,273 and^3?8 of^{IPCand Sections - 26 and 30 ol} the FSS Act where there is an^allegation of^{transportation and saleol'} Gutka / Pan Masala etc., held that^{the judgmentof Bombay High} Court is contrary to the^provisions ofthe Act^{andlaw laid down by it.} With the said finding, the Apex Court remitted the matter^{1o the} Bombay High Court for fresh consideration on the^{issuethat whether} the aforesaid offences are made out in the FIRs, which^aresubject matter oflhe cases pending before the Bombay High Court.

¶191

1r. 2020 Supreme (AP) 34E

¶192

¶193

In view of the authoritative pronouncement of law in the aforesaid judgments, as discussed above, coming to the facts of the cases on hand, the allegations against the accused in respective cases are tansportation, possession, storage, sale and purchase of banned producls yr2., tobacco / tambaku / gutka / khaini / zarda / pan masala etc., respectively. In Chidurala Shyamsubdera, the leamed Single observed that transportation of chewing tobacco or khaini or pan masala do not constitute an offence punishable under Section _ 270 of IPC and that manufacturing ofpan masala is not included in section - 213 of lPC and, therefore, the same is not an offence since it is not a noxious food. The leamed Single Judge has firrther observed in the said judgment which is as under:

¶194

"....The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would nor spread or infect or cause any disease on account of transportation and if &ose products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section _ 270 of IpC and it would fall within Section 270 of IpC.,,

¶195

Section - 272 ol IpC makes punishable an offence by a person, who adulterates any article of food or drink. Therefore, rhe said section would only come into play iffood or drink is adulterated. There is no definition ol^{.aduiteration,} in IpC. The definirion ol 'adulteranr' is found in rhe provisions of the FSS Act. Section - 3 (l)

¶196

¶197

(a) of the FSS^{Act deals with 'adulterant' whichmeansa material} which could^{makethe 'food' unsafe or sub-standard or rnis-branded'} According^{to Section- 272 of IPC, if a materialis used to make the} foodunsafe/sub-standardormis-branded,thenonlytheoffencewould be attracted.^{Whereas, as discussedsupra' the allegationin the} present batch^{ol cases is withregard to transportation'possession'} storage,^{sale and purchaseofbanned productsviz'' tobacco / tambaku} / gutka / khaini^{/ zarda/ panmasalaetc, respectively'Therefore'} according to^{this Court, the said allegationdoes not fall withinthe} ambit of Section^{-272of lPC. Therefore, I agreewith the principle} laid down by^{the leamedSingle Judgesof the High Courtof Andhra} Pradesh in Chidurala^{Shyamsubdera,Sri JaganathEnterprisess} and V. Nageswara^Raorl.

¶198

i6. In Joseph^{Kurian6,the Hon'b1e Supreme Court heldthat} for Section - 772lPC^{to be attracted, the followingshould be present'} (1) That the aflicle^{involved was food and drink meant to be} consumed by^{live persons; (2) that the accusedadulteratedit and the} adulteration rendered^{it noxious as a 'food or drink'; (3) thatthe} accused^{knewat the time of adulteration that he would sell the arricle} as food or drink^{andknew that such article cannot be soldas food or} drink.^{TheHon'ble SupremeCourt clearlyheld that the offenceis} completed on^{the introductionof the adulterant' 'Adulterant'would} mean that a^{materialwhich is mixed to make the 'food'unsale or} drink unsafe. In^{the presentcase on hand, tobaccois nota food or}

¶199

drink and what is stated to bo mixed in it is not clearly established by any cogent material as an^.adulterant, for the offence under Section - 272 IPC to be pressed into service.

¶200

As far as Section - 328 of IpC is concerned, in the same judgment it r.vas held as follows:

¶201

"10. In order to prove offence under Sectiou 32g the prosecution is required to prove that the substance in questio[ was a poison, or any stupefuing, intoxicating or unwholesome drug etc, that the accused administered the substauce to the complainant or caused ttre complaioant to take such substance, that he did so with intent to cause hurt or knowirg it to be likely 19 that he would thereby cause hurt, or with the intention to commil or iacilitate the commission ofan offence It is, therefore, essential for the prosecutioo to prove thal the accused was directly responsible for administering poison etc. or causing it to be taken by any person, tbrough another. . _ . . ..,,

¶202

Tobacco does not fit into this dehnition

¶203

Section - 273 of lpC deals with sale ol a noxious tood or drink, and as per which, whoever sells, or offers or exposes ibr sale, as lbod or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or haviag 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 article *.hich has become noxious or is in a state of unfit for^..food or drink,,. Thus, the said section rvould apply, when an article which has become noxious or which has been rendered noxious. It also applies to food or drink only_ As held in Sri Jaganath Enterprisess, the word^.noxious, is not defined in

¶204

IPC or in FSS Act.^{As per the dictionarymeaning, the word 'noxious'} is harmful,^{deieterious,injurious,poisonousetc As statedabove' the} allegation in the^{entire batchof present criminal petitionsis with} regard to transportation,^{possession, storage,sale and purchase of} banned^{productsviz., tobacco/ tambaku/ gutka/ khaini/ zarda/ pan} masala etc., respectively.^{Therefore, accordingto this Court,the} contents of^{the complaint/chargesheetlacksthe ingredientsof Section} - 273 ol lPC.

¶205

As far as^{section - 188 IPC is concerned , as per the settled} law on the subject,^{before an accusedis charged,there must be; an} order duly^{promulgatedby the publicservant; 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 mustdisobey the said order with the} knowledge; and such^{disobedience of the dulypromulgatedorder} should cause^{a dangerto the humanlife etc. In Boop Singh Tyagie a} Division Bench of^{Allahabad HighCourt held that right to promulgatc} the ordinance/order is^{alsoan issuewhichis being raised, because} under the FSS Act,^{the Commissionerof Food Safety alone has the} authority to^pass the^{orders only if the article of 'food'cancauses} danger or is injurious^{to health.}

¶206

In N.T. Rama Rao v. The State of A.p., rep. by putrlic

¶207

Prosecutorl2 while dealing with the offences under Sections _ lgg and 283 of IPC, the learned Single Judge ofthe combined High Court ofAndhra Pradesh held as under:

¶208

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the pemission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the police Act, tg6l and is violated, Section 195 (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 person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 ofCode of Criminal procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) ofCode of Criminal procedure.

¶209

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

¶210

r'z. Crimiral PetirionNo.5323 of2009, decided on 17.09.2009

¶211

independent of^{the sameEven otherwise,the} conduct of^{publicmeetingat three roadjunctions} or obstruction to^{the trafficcould not havebeen} considered as^{causing any dangeror injury to any} person. ln so far^{as the obstructionin any putrlic} way is concemed,^{which can also be covered by} Section 283 of^{the Indian Penal Code, thecharge} sheet cites only^{one witness Io speak aboutthe} traffic^jam caused^{by the road show. But, when} the conduct of^{thepublic meeting at leastat one} place has been^{permitted and if tbe gatheringfor} ttrat public meeling^{resulted in anyincoovenience} by way of obstructing^{thetraffic, the samecannot} be considered^{to be withnecessarygtllty mensrea} to constme the existence^{of an offence punishable} under lndian Penal^{Code.Underthe} circumstances,^{noneof the offences allegedcanbe} said to have any^{reasonable basis and in any view,} the complaint/charge^{sheet beingin violation of} Section 195^{(1) (a) ofCode of Criminal Procedure,} has to fail.

¶212

As the complaint has^{failed due to its} unsustainability,^{theproceedingsin their entirety} have to fail, though^the l"^accusedalone approached this Cou( by^{way of this Criminal} Petition."

¶213

In Thota Chandra^{Sekhar v. The State of Andhra} Pradesh, through S.H.O.,^{P.S. Eluru Rural, West Godavari} Districtr,^{whereinby relying on various judgmentsincludingN'T'} Rama RaoI2 and also^{the guidelines laid down by the Apex Court in} Bhajan Lalr0 more^{particularly, guideline No'6,whichsays that}

¶214

Cnminat Petition No.l52,t8 of2016. decided on 26.10.2016

¶215

where there is an express legal bar errgrafted in any of the provisions ofthe Code or the concemed Acl (under which a criminal proceeding is instituted) to the institution and conrinuance of the proceedings and./or where there is a specific provision in the Code or the concemed Act, providing efficacious remedy to redress the grievance of the pafy, it was held that the proceedings in the said C.C- were quashed by exercising power under Section - 4g2 of Cr.p.C. It was also lirther held that the proceedings .shall not be continued due to tecbnical defect ofobtaining prior permission under Section _ 155 (2,)of Cr.p.C. and taking cognizance on the complaint filed by V.R.O. and ir is against the purport ofSection - 195 (1) (a) of Cr.p.C.

¶216

Yide Notification No.50I/FSS_ 1/2020, dated 06.01.2020, the Commissioner of Food Safety, Telangana Directorate of Institute of Prevenrive Medicine, public Health Labs and Food (Heairh) Administration, Narayanguda, Hyderabad, restricted the manufacture, storage, distribution, transportation and sale of gutka / pan masala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure tobacco, khaini, khara, scented tobacco / flavoured tobacco or by whatever name locally il is called packed in sachets / pouches / package in the entire Slage of Telangana under FSS Act, 2006. lt is for one year. Vide Notification No.505/FSS- l /2021, dated 06-01.2021, rhe same was exlended for one more year. As per the information fumished and instructians received, several writ petitions were filed challenging the said

¶217

Notifications^{bcforethis Court as well as the Hon'bleSupremeCourt'} A Division Bench ol^{this Courtdeclinedto entertain somewrit} petitions on the^{ground that the Hon'bleSupremeCourt seizedofthe} said issue. lt is^{also relevantto note that the Hon'bleSupremeCourt} remanded back^{the matter to this Court'Therefore,sucha notification} can only be issued^{foremergencysituations antl for prohibitingthe} distribution and^{sale of any article of a food carmot be lost sight ol} Therefore, in view^{of the law laid downin the abovejudgments} including the^{judgments in ChiduralaShyamsubdera, Sri Jaganath} Enterprisess^{and V. NagesrvaraRaoll. According to thisCourt,} Section - 188 of^{IPC will not attract to the allegations leveledagainst} the pctitioners herein^{in this batch of criminalpetitions.}

¶218

As far as Section^{- 328} of^{IPC is concerned, it dealswith} causing hurt by^{means of poison, etc., wkh intentto commitan} offence. As^{per thesaidprovision, whoever administersto or causes} to be taken by^{any person any poison or anystupefying, intoxicating} or unwholesome drug,^{or otherthingwithintentto causehurt to such} person, or wirh intent to commit^or lo^{facilitatethe commissionol an} offence or knowing it^{to be likelythat he will thereby causehurt, shall} be punished with^{imprisonment of either descriptionfor a termwhich} may exlend to ten^{years, andshallalso be liable1o fine.Therefore.} there should be administering^{poison, intoxicatingetc., with intent to} cause hurt 1o such^person or \vith^{intent to commitor to facilitatethe} commission of an offence or knowing it^{to be likely that he will}

¶219

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

¶220

As far as Section - 336 ofIpC is concemed, it deals with an act endangering life or personal safety of others, and as per which, whoever does any act so rashly or negligently as to endanger human Iife or the personal safety of others, shall be punished with impris_ onment 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. In the complaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to fiis Cowt, the contents of the complaints / charge sheets lacks the ingredients of Section - 336 ofIPC.

¶221

As far as Section , 420 of IpC is concemed, it deals with 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 sheet lack the ingredients of Section - 420 of IPC.

¶222

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

¶223

which is, and^{whichhe knows or has reasonto believe to be, likelyto} spread the infection^{ofanydiseasedangerousto life, shall be punished} with imprisonment of^{either descriptionfor a term which may extend} to six months, or^{with fine,or with both. But, a perusalof the} contents of complaints^{/ chargesheets in the present batch of cases,} such ingredients^{are lackingand,therefore, Section - 269 ofIPCdoes} not arise in^{thepresentbatch of cases.}

¶224

In view of the^{above saiddiscussion,according to this} Court, transportation,^{possession,storage, saleand purchaseof} tobacco products are^not totally^{bannedin theStateofTelanganaand} also in the Country.^{Therefore, it cannotbe said that Sections - 269,} 270,2'71,272 and 273, 328,336^{and 420 of lPCare attracted to the} cases in this batch.

¶225

As far as the offences^{under FSS Act is concemed, as} already discussed above, in Chidurala^{Shyamsubdera, theleamed} Single Judge following the^{guidelineslaid downby the Hon'ble} Supreme Court in Bhajan^{Lalr0 held that the policeare incompelent} to take cognizance of^{the offences punishable underSections- 54 and} 59 (l) ofthe FSS Act,^{investigatinginto theoffences along withother} offences under the^{provisionsof the IPC. It was further held that} filing charge sheet is a^grave illegality,^as the^{Food SafetyOfficer} alone is competent to investigate and to file charge^{sheet following the} Rules laid down under Sections - 41 and 42 of^FSS Act. In^the present case, the police have registered the crime for the offences

¶226

under Sections - lBB,27O anrl 273 of IpC. Therefore, in the present batch ofcases, entertaining the complainrs / filing the charge sheets by the police is contrary to the principle laid down in Chidurata Shyamsubdera.

¶227

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 tobacco products and for matters connected therewirh or incidental thereto. A reading of the said objects of the said Act would reveal lhat a total ban of tobacco products was not envisaged try 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 producrs. Section - 5 of the COTp Act deals with prohibition of advertisement ol cigarefle 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.

¶228

Section - 7 of the COTp Act deals with the imposition of restriction on the sale, frade, cornmerce of tobacco products unless

¶229

every^{package of cigarette or tobacco product containsa specified} waming (pictorial^{or otherwise).Section- 4 of the COTP Act' bans} smoking in^{publicplaces. In addition,Section- 6 of the COTP Act'} prohibits the sale of^{cigarettesor other tobacco productsto a person} who is under the^{age of l8 years are in an area within100 yards of} any educational^institution.

¶230

3 L A reading^{of this Act, particularlySections - 4, 5' 6 and7} clearly shows^{that there is no general banor generalprohibitionon the} manufacture/sale^{oftobaccoproducts. 22 What is barred is merely the} sale of these^{productsto a person, who is below the age of 18 years} and in an^{area within 100 yards of an educationalinstitution'The} other aspects^{coveredby Sections- 5 and 7 of the COTPAct, deal} with the advertisement^{and thewaming, whichis to be contained ona} package, in which^{the tobacco product is packed'This is a regulatory} mechanism only.^{Therefore,accordingto this Court, the abovesaitl} allegations of^{transpotation,possession, storage, saleandpurchase o['} banned tobacco^{productswill not attract the offence under Section-7} of the COTP^Act.

¶231

As far as^{Section - 20 (2) ofthe COTPAct is concemed,as} stated above, the^{allegations against the petitioner in respective} complaints / charge^{sheels arethat they were transporting,possessing'} storing, selling^{and purchasing the bannedtobacco products to the} customers illegally in^{orderto gainwrongful proflts.In view of the} said allegation, it is^apt to^{referto Section- 20 (2) of the COTP Act}

¶232

for beter appreciation of the case and to decide the issue in question,

¶233

and the same is as under:

¶234

"20. Punishment for failure to give specified warning and nicotine and tar cotrtents. (l)...

¶235

(2) Any person who sells or distributes cigarettes or tobacco products which do not cottain either on the package or on their label, the specified waming and the nicotine and lar conlmts shall in the case of fi$t conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, atrd, for the second or subsequent conviction, with imprisoment for a term which may extend to two years and \yith fine which may extend to three thousand rupees.,'

¶236

Thus, Secrion - 20 ofCOTp Act deals with punishment for failure to give specified waming and nicotine and tar contents. But, in the complaints I charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco producls without label and specified waming on the said products. In view of the same, the contents ofthe complaints / charge sheets lack the ingredients 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 only contrary to Section - 20 (2) ofCOTP Act, but also conlrary to the principle laid down in Chidurala Shyamsubdera. 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 lhe

¶237

principle laid down by^{the leamed SingleJudges of the High Court of} Andhra Pradesh in Chidurala^{Shyamsubdera,SriJaganath} Enterprisess and^{V. Nageslvara Raoll'}

¶238

For the foregoing^{discussion and the authoritativeprinciple} of law, Criminal^{PetitionNos. 3768,3879,4046, 4077,4098,4099.} 4100, 4102, 4141, 4151,⁴¹⁵⁷ ,^4182,41.87 ,⁴²⁴⁷ ,^{4249, 425].} '^4258, 4262, 4277, 4405, 4415, 4542,^{4615, 4640,4681,4727, 4775and} 4825 of 2021 are allowed^{quashingthe proceedings againstthe} petitioners therein in the respective^{crimesmentioned therein.Since} the proceedings in the^aforesaid Criminal^{Petitionsarequashed} againsl the respective^petitioners, the^{respectiveStationHouse} Officers / Investigating Officers^{are hereby directedto returnthe} seized prope(y / vehicles on^{proper identificationandverification o{'} ownership under due acknowledgment.

¶239

Further. Criminal Petition Nos.^{152, 153, 155, 162 & 5826} ol 2020, 3498. 3500, 3509, 3514,^{4070, 4110, 4119, 4110, 4178.} 4'194, 4216, 4230, 4361,^{4612, 4622and 4632of 2021 arealso} allowed quashing the^{proceedingsagainst thepetitioners 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 for^{retum of the seized} property / vehicle and the Magistrate shall consider the same in accordance with law.

¶240

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

¶241

Criminal Petitions shall stand closed.

¶242

K.LAKSHMAN,J

¶243

osrH JULY,2o2l

¶244

!9!9:^{L.R. copy to be marked.} (B/O.) Mgr

P.L.Manoj Kumar @ kankanal Sreenivasa rao, v. The State of Telangana

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P.L.Manoj Kumar @ kankanal Sreenivasa rao, v. The State of Telangana

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