Partly allowed

Shivasatti Mayadevara, v. The State of Telangana

Telangana HC4 Jul 2024CRLP/7180/2024

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings under Sections 188, 269, 270, 272, 273 of IPC and Section 20(2) of COTPA against an accused for possessing gutka and ganja. Led by precedents, the court held these offenses were not maintainable for transportation of these products, but permitted prosecution under NDPS.

What did the court decide?

Quashment of proceedings under IPC Sections 188, 269, 270, 272, 273 and COTPA Section 20(2). Permission for trial on NDPS charges only.

Shivasatti Mayadevara, Vs The State of Telangana — Quashing and FIR | Telangana HC (2024)

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[^338s ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE FOURTH DAY OF JULY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT. JUSTICE K. SUJANA

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CRIMINAL PETI TION NO i 7180 0F 2024

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Between:

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Shivasattj _Mayadevara, S/o. Mani, Aged about: 2g years, Occup: Business, No. 1-4-28614, Near vitat Hospital, Ma"rket noaO, Suriap"t, Sr.Vib"t Oisiiici"'

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...Petitioner/Accused

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AND

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1 IIp.^{Slgtg gl T"hnoglg,, Rep by its pubtic prosecutor, High Court for rhe} state ol lelangana At Hyderabad.

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2 Ilg District9yn^{lnspector of Potice, Suryapet ll Townpolice} Station Hyderabad

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...Respondents/ Defacto Complainant

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Petition under section 4g2 of cr.p.c praying that in the circumstances stated in the Memorandum of Grounds of criminl petition, the High c;;,i;"y be pleased to quash the proceedings in FrR No.278 of 2024 Jn tne ite ot Suryapet ll rown Porice Station, Suryipet District against the petitioners.

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l.A. NO: 2OF 2024

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Petition under section 492 of cr.p.c praying that in the circumstances stated in the Memorandum of Grounds of criminar petition, the High C;r; ;uy be pleased to direct the respondents/ Suryapet ll town police station to release the property seized in FrR No.278 ot 202ti on the fire of suryapet rr to*r, pori"" Station, Suryapet District in favour of the petitioner.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminar Petition and upon hearing the arguments of Sri y. Bara Murali, Advocate for the petitioner and Sri S. Ganesh, Assistant pubric Prosecutor on beharf of the Respondent No.1 and none appeared for-ihe Respondent No.2

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The Court made the following: ORDER

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I I

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THE HONOURABLE SMT. JUSTICE K. SUJANA

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CRIMINAL PETITION No.718O of 2024

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ORDER:

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This Criminal Petition is hlcd under Section 482 o[ Code of Criminal Procedure, 1973 (for short 'Cr.P.C. ) to quash the proceedings against the pctitioner/ accused in Crime No.278 of 2024 on thc file of Suryapet II Town Police Station, Suryapet, registered for offences punishable under Section I88 of IPC and Section 24(Il of COTPA.

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Heard Sri Y.Bala Murali, learned counsel for the petitioner as well as Sri S.Ganesh, learned Assistant Public Prosecutor for respoEdenl No. 1 State. Perused the record.

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3- Learned counsel for the pe[itioner submitted thirt the matter is squarcly covercd by the order dated 15.04.2Cr24 in Criminal Petition No.2309 ol 2024.

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Learned Assistant Public Prosecutor aiso 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 lepresentation ald as the mat ter is squarely covered by the order in the above criminal petition, this criminal petition is allowed in terms of the above said ,trder,

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adopting thc reasoning contained therein. The proceedings against the petitioner/ accused in Crime No.278 of 2024 on Lhc file of Suryapct Il Town Police Station, Suryapct, are hereby quashed. Further, the Station House Ofhcer/ In vestig;r tin g

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Ofhcer is hereby directed to return the seized property on proper identihcation and verification under due acknowledgment.

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Pending miscellaneous petitions, if any, in this Criminal

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Petition shall also stand closed.

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To,

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//TRUE COPY//

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sd/- A.v.s. PR4,6AD, ASSISTANT REGISfRAR sEcloN #r,..*

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1 The Principal Judicial First Class Magistrate Court at Suryapet.

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2 The station House officer, suryapet ll rown police station, suryapet District

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3 Two CCs to the Public Prosecutor, High Court for,the State of Telangana at Hyderabad. [OUT]

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4 One CC to Sri Y. Bala tVlurati, Advocate tOpUCI

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5 Two CD Copies

HIGH COURT

DATED: 0410712024

-rH E ST416
i 12 JUL zut az
I i
OEsPATcs gO

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ORDER

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CRLP.No.7180 ot 2024

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ALLOWING THE CRIMINAL PETITION

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

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ORDER:

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This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners / accused Nos.1 and 2 in S.C.No.24 ot 2021, on the hle of the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 188, 269, 27O, 272,273 of the Indian Penal Code, 186O (for short 'the IPC'), Section 8 (c) read with Section 20 (b) (i1) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short'the NDPS Act') and Section 20 (2) of the Cigarettes and Other Tobacco Products Act, 2OO3 (for short 'the COTP Act').

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Brief facts of the casc of the petitioners is that on 27.O3.2O2O while police were in patrolling, they found the petitioners possessing, selling ald purchasing the banned products viz., gutka and ganja respectively, for which, the Police registered a case against the petitioners for the offences alleged against the petitioners are that Sections l9a, 269, 27O, 272 and 273 of the IPC, Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS Act and Section 20 (2) of the COTP Act, respectively. Basing on the said complaint the Police rcgistered the casc in Crimc No.53 of

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SI(S,J CrI.P.No.2309 OF 2O24

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2O2O and after completiod of investigation, they filecl charge sheet and the same was numbered as S.C.No.24 of 2O2l on the filc of the VIII Additional Chief Metropolitan Magistrate, Hydcrabad.

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Heard Sri Y. Bala Murali, learned counsel appearing on behalf of the petitioners as well as Sri S. Ganesh, learned Assistant Publc Prosecutor appearing on behalf of the respondcnts.

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Learned counsel for the petitioners submitted that the allegations levelled against the petitioners are vagne and did not attract any of the offence. Making his submission, he reliecl on the judgment of this Court vide order dated O5.07.2021 in Ctriminal Petition No. 1 52 of 2O2O, wherein this Court quashed the proceedings against the petitioners and he further submrtted that the present matter is also covered by that order. As such, he prayed thc Court to allow the Criminal petition.

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Per contra, learned Assistant public prosecutor submitted that he has no objection with regard to Sections lgg, 269, 27O, 272, 273 of IPC and Section 20 (2) ol. the COTP Act. The petitioners were also charged for the offence under Section Section 8 (c) read with Section 20 (b) (i1) (B) of the NDpS Act and he has prayed the Court that the trial has to be conducted for the offence punishable under NDpS Act.

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

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RELEVANT PROYIS.TO]VS UNDER IPC:

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"18E. Dsobedience to order dultl promulgated by public seruant. - tt)h<.teuer, knouing lhat, bg an order promulgated bg a public seruant laufully empouered to promulgate such order, he is dvected to abstain from a certain act, or to take certain propefiA in his possession or under his managemen| disobegs such direction, shaLl, rf such disobedience causes or tends to cause obstruct[on, annogance or injury, or nsk of obstruction, annoAance or injurg, to anA person lawfullg emploged, be punished tuith simple impisonment for a term uthich mog extend to one month or with fine u.thich mag extend lo tuo hundred rupees, or uith both; ond if such disobedience ceuses or trends to cause danger to human lrfe, health or safettl, or cau-ses or tends to cause a riot or affray, shall be punished u[th impisonment of either desciption for o term uhich mag extend to six months, or Lt)ith Jine which mag extend to one thousand n)pees, or uith both

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Exptanation: It is not necessary that the offender should intend to produce harm, or conternplate his disobedience as likelg to produce harm. It ts sufficient that he knous of the order which he disobegs, and that his disobedience produces, or is likely to produce, hafln.

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nfustatton: An order is promulgated bg a public seruant laufullA empowered to promulgqte such order, directing that a rehgious procession shall not pq.ss doutn a certain street. A knowingly disobeas the order, and therebg causes danger of ioL A has committed the offence def.ned in this section."

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"269. Negligent act likely to spread infection of disease dartgerous to ltfe. - Whoeuer unlatufullg or negligentlq does ang act Llthich is, and which he knows or has reason to belieue to be, ltkelg to spredd the infectiorr of ang disease dangerous to hfe, shalt be punished tuith tmpisonmett of either desciption for a term whrch rnag extend to six months, or urith fi.ne, or uith both "

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27O. Moligftant act LikelA to spread tnfection of diseasc dangerous to llfe. - Whoeuer malignantly does ong acl uhich is, and uthich he knous or ho.s reason to belteue to be, likelg to spread the nfection of ang disease dangerous to lrfe, shall be punished uith imprisonment of either descnpt'Lon for a tertn tuhich mag extend to tluo Aears, or with fine, or with both."

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Adulteration of food or dink intended for sqle.-Whoeuer adulterates ang article of food or dink, so as lo rnoke such article noxious as food or dnnk, intenditg lo sell such article os food or dink, or

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SKS,J Crl.P.No-2309 OF 2O24

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knotuing tt to be likelg that the same uiII bc so/tl tr.s food^{ot dnnk,} shall^{be punished} utith impisonrnent of eitttc:r de,sciption for a term u.thiclt mag extend to ;ix monl/rs, or with rtne whtch mag extend to one thousand tupees, or uith both."

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"273. Sale of noxious food or dnnk. Whoeuer sells, or o|Jcrs or exposes for sale, as food or dink, .1au orltclc tuhr-h hqs been rendered or has become not-.o,,.!. or s in a stote unfit for food or dink, knouing or heuulg reason to belteue that the same is non_:cious qs fo()d t)r c)ink, shatt be punished rDith impisonment oi eithc,r <lesciptton for a tenn uhich maA extend lo six motLllts, or with fi.ne tuhich mag extend to orte thousand rupet,s, or Luith both."

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RELEVANT PROI|ISIO,IVS UNDER COTP ACT:

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Purushment for failure to gue specifi(,d wamirtg ctnd nicotine and tar contenls.-

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(2) AnA person LUho sells or distibut.s cigarelles or tobacco products which do not conteit wiher on the package or on their label, the specrfietl u.taming and the nicottne and tar contents shall in t.ct:;c oJfirst conuiction be punishable with imprisonment Jor a term, which may extend to one gear, or tuith f.ne tuhir.h meg extend to one thousand tapees, or with both, crnd, for^thesecond or subsequent conuiction, Lutlh impisonment for a term which mag extend to tu)o A(,at s and with f.ne uthich maA extend to three thousan.) rupees "

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The lis involved in the present petition is no more res integra. A learned Single Judge of the High Court of Judicature at Hydcrabad for the State of Telangana and the State of .Andhra Pradesh tn Chidurala Shgam.subder us. State of Telanganat had an occasion to deal with the issues involved rn the present criminal petition. After referring to various provisions of IpC. COTP Act and also the principle laid down by the Apex Court and other High Courts in several judgments, the learned Singlc Judge had framed the issue s, which are as under:

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' Crl.P.tto.3731ot 2018 & barch, decided on 2i.Oa.2)tg

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SKS,J Crl-P.No-z309 OF 2024

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"1) Whether the respondent/ Sub-[nspcctor of Police, is competent to investigate into the offence punishable under Sections 54 and 59(l) of FSS Act?

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Whether the petitioners in all the petitions are found committing any act with malicious intention, with knowledge and reason to believe that such act Iikely to spread the infection o[ any diseasc dangerous to life? And whether the petitioners selling or offering or exposing for sale as food or drink, any article which has been rendered or has become noxious or is in a state unht for food or drink or reason to believe that the same is noxious as food or drink? [f so, are they liable to be proceeded for the offence punishable under Sections 27O and 273 lPC.?"

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7 . In the very same judgment, the learned Single Judge further held that che\ring tobacco and khaini are not the 'food'within the dehnition of Section 3 [) of the FSS Act and the manufacture, sale or exposing for sale of tobacco etc., is governed 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 offence 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 of the offence punishable under Section - 273 of IPC since transportation of noxious food is not included under Section 273 of lPC. 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

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SI(S,J Crl.P.No.2309 OF 2024

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accolrnt of transportation and if those products are consumed by human beit-tg, it rvould certainly cause damage to the health. Thcrefore, transportation of khaini or chewing tobacco by itsclf is not an offence under Section - 27O of IPC. Pan Masala is not a tobacco product to fall within the purview of COTP Act. Therefore, the provisions of the COTP Act have no application, thereby registration of crime on the ground of violation of Sectrons; - 7 ( 1) (2) (3) (5) and Section 26 of COTP Act is an illegality. The tearncd Single Judge further held that registration of cases for the offence under Section 20 (2) read witll, 7 (2) of COTP Act is illegal. With the said frndings, the learned Single Judge has quashed the crrmes and calendar cases in the said judgment.

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8. In Sri Jaganath Enterprises Elut-u Vaso,nd.hi Tripati Rao

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us. The State of Andhra. Pradesh2, a learned Single Judge of the High Court of Andhra Pradesh at Amaravati had also an occasion to deal with the said issue. After referring to the contention of the respective parties therein, various provisions of IpC, FSS Act, COTp Act and relying on the principle laid down in Ano,nd Rannd.ho.ni Chaurasia3, Joseph Kurian us. State of Keralaa, Sagyed. .Efassan Sagged Subho'ns, M/s. Pepsico India Hotdings (put)

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'^{zozo (r)} lr^{(ca.) 21s} {ApHc)

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'2019^{scc onlin" Bom1857}

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" rsss 1r1 scr zzr

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t zot8 atn 1sc1 s:as

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sxs,J CrLP.No.2s09 OF 2024

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Ltd., us. State oJ U.P.6, Sanjag Anjag Stores us. Union of Indiq.T , Boop Singh Tyagi us. States , State of Hargana us. Bhajan Lale and Chiduralo Shgannsubd.er (Supra 1), the learned Single Judge has quashed the FIRs/Calendar Cases. Thc learned Single Judge referring to the law laid down in Chidurala Shyo,m.subd.er (Supra i ) held that despite the said authoritative pronouncement of [aw, status quo continues. The said judgment attained finality. Even then, the police are registering cascs against accuse d on the very same allegations for the very same offences.

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Referring to the provisions of Sections - 188, 269,27O, 272 and 273 of IPC, the learned Judge in Sri Jaganath Enterprises held that the offences registered under the said Sections are not maintainable. It further held that the provisions ol the COTP Act can only be pressed into service in the limited circumstances only where there is violation of Sections - 4, 5, 6,7 and 1O of the COTP Act. By referring to the principle laid down by the Apex Court in Bhajan Lal and M/s. Pepsico India Holdings (Pvt) Ltd., the learned Single Judge has quashed the proceedings in various crimes/ calendar cases.

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6 2011(2) crimes 250

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/ 2017 scc onLine cal 16323

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'^{2oo2crl.L.Jz|l2}

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'g^{1992 Supp (1)sCC335}

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SI(S,J CrI-P.No.2309 OF 2024

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1O. Another learned Single Judge of the High Ctourt of Andhra Pradesh at Amaravati in V.Nageswara Ror us. State of And.hra Prad.eshlo [-rad also an occasion to deal with the said issue and agreed with the principle laid down in Chidurala Shgam-subder (Supra 1 ).

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In Sagged Hassan Sagged Subha.n (Supra 5), the Apex Court while clealing with legality of the order passed by the Bombay High Court in a batch of criminal writ petitions and criminal applications, which wcre filed challenging thc registration of FiRs for the offences under Sections 188, 272, 2'/3 an<l 328 of IPC and Sections 26 and 3O of FSS Act where there is an allegation of transportation and sale of Gutka/Pan Masala etc., held that thc judgment of Bombay High Court is contrary to the provisions of the Act and law laid down by it. With the said finding, the Apex Court remitted the matter to the Ilombzry High Court for fresh consideration on the issue that whether the aforesaid offences are made out in the FIRs, which are subject matter of the cases pending before the Bombay High Court_

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1,2. In view of the authoritative pronouncement o[ Iaw in the aforesaid judgrnents, as drscussed above, coming to the facts of the cases on hand, the allegations against the accusetl in respective

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10 2020 Supreme (AP) 348

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SN.s,J CrLP.No.2309 OF 2O24

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cases are transportation, possession, s[orage, sale and purchase of banned products viz., respectively. In Chiduralo. Shgamsubder (Supra 1), the learned Single Judge observed that transportation of chewing tobacco or khaini or pan masala do not constitute an offence punishable under Sectiot 27O of IPC and that manufacturing of pan masala is not included in Section 273 of lPC and, thereforc, the same is not an offence since it is not a noxious food. The learned Single Judge has further observed in the said judgment which is as under:

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l'he act done bg the petitioners i.e-, transponadon of khaini and cheuing tobacco though dangerous oJ human hfe, it tuould not spread or tnfect or casue ong disease on account of transportation and rf those products^qre consumed by human being, it utould certainlg cause damage to the heqtth. Therefore, trensportation of khaini or chewing tobacco is not bg itself is not an offence under Section - 27O of IPC ond it tuould fall utithin Section 27o of IPC."

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

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SI(S,J Crl.P.No.2309 oF 2024

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only the offence would be attracted. Whereas, as cliscussed supra, the allegation in the present batch of cases is rvith rr:gard to transportation, possession, storage, sale and purchase of banned products viz., tobacco f tambaku/ gutka/ kinaini /zarda/pan masala etc., respectlvely. Therefore, according to thrs Court, lhe said allegation does not fall within the ambit of Section 272 of lpC. Therefore, I agree with the principle laid down by the lcarncd Single Judges of thc High Court of Andhra Pradesh tn Chid.urala Shgamsubd.er (Supra 1), Sr, Jaganath Enterprises fSupra 2) and V.Nageswa.ra Rq.o (Supra 10).

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In Joseph Kurian (Supra 4), the Hon,ble Supreme Court held that for Section 272 - IPC to be attracted, the following should be present. (1) That the article involved was food and drink meant to be consumed by live persons; (2) that the accused adulterated it and the adulteral ion rendered it noxious as a^,food or drink,; (3) that the accused knew at the time of adulteration t1'rat 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 drink unsafe. In the present case on hand, tobacco is not a food or drink and what is stated to be mixr:d in it is not clearly established by any cogent material as an^,adulterant,

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1,1,

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sxs,J Crl.P.No.2309 oF 2o24

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for the offence under Section 272 of IPC to be pressed into setnlce.

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Section - 273 of IPC deals wrth sale of a noxious food or drink, and as per whrch, whoever sells, or offers or exposes for sale, as food or drink, any article^which has been^{renderedor has} become noxious, or is in a state unlit for drink, knowing or^having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment specif-ted therein.^Therefore, if^a person offers for sale a "food or drink" any article which has become noxious or is in a state of unfit for "food^or drink"-^Thus, the said section would apply, when an article^{which has become} noxious or whrch has been rendered noxious. It^{also appliesto} food or drink only. As held in Sri^{jaganathEnterprises, the word} 'noxious'is not dehned in 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^criminal petition is with regard to transportation,^possession, storage, sale and purchase of banned products viz., tobacco/tambaku/gutka/^k haini /^{zarda/ pan} masala etc-,

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respectively. Therefore, according to this Court,^{the contents of the} complaint/charge sheet lacks the^ingredients of^Section -^{273 of} IPC.

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SI(S,J ('rI P.No.2309 oF 2024

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As far as Section i88 of IPC is concerned, as 1;er thr: settled law on the subject, belore an :rccused is charged, thcre ntust be; an order duly promulgated by the public servzrnt, the public servant must have thc lawful authority to promulgirte the order; the person flouting the same should have knowledge about the order directing him to abstain from the act; he must drsobey the said order with the knowledge; and such disobedient:e of the duly promulgated order should cause a danger to the human life etc. In Boop Singh Tyagi a Division bench of Allahabad Fligh Cor_rrt held that right to promulgate the ordinance/order is also an issue which is being raised, because Llnder the FSS Act, thc Commissioner of Food Safety alone has the authority to pass the orders only if the article of 'food' can ciluses danger or is injurious to hea-lth.

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In lV. T. Ratna Rao us. The State oJ A.P., rep by public Prosecutorl^l while clealing with the offences undcr Sections - 188 and 283 of IPC, the lcarned Single Judge of the r:ombirred High Court ofAndhra Pradesh held as under

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"5) Euen if the allagation that the petitioner conducted publrc meelings at threc, road junctutn:; contrary to the perrnission accorded for conductinll qf a publtc nteeling onlg at one spectrtcd place is true. such a directiort under Section 30 of the Policc Act. 1861 could haue been giuen onlg b9 tht Supeintendent or ,he Assisadnt Superintendent ol

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tt Criminal Petition No.5323 of 2009, decided on Il Og.ZOO}

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

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Police oJ the District bul not blj ang of lheir subordincltes. IJ suclt a permission is grunted under Secion 30 of the Police Ac|, 1861 ond is uiolated, Section 195 (1) (a) of Code of Ciminal Procedure mondates that the complaint in this regard hrl.s to be made bg the public seruant concerned or some other person to whom such a publtc seruqnl is admirustratiuelg subordinate to enable an!, Court to take cognizance of an ofJbnce under Scction 188 of Code of Cnminal Prctcedure. In the^prcscnt case, the charge sheet utas flcd bA the Sub Inspector of Police, tuho could not haue been the authoitA to grant pennission for the public meeting and therefore, the complaint/ charge sheet is in uiolahon of^the mandatorg proui-sron o./ Seclion 195^{( 1)} 9a) of Code of Criminel Procedure

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'fhat apart, the oJfence alleged to haue been committed under Section 283 of the Indian Penal Code bg the^petitioners and others is obuiouslg in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Euen othenuise, the conduce of^pubtic meeting at three road Junctions or obslntction to the traffi.c could not haue been considered as causing ang danger or inlury to ang person- In so Jar as the obstruction tn ang public wag is concerned, u)hich can also be couered bg Sectton 283 of the Indian Penal Code, the charge sheet cites only one uttness to speak about the traffc^jam caused b1| the road shou. But, when the conduct of^{the public meeting} at least at one place has been^pennitted and if^the gathenng for thet public meeting resulted in ang inconuenience bA woll of obstructing the trafrtc,^the some cqnnot be considered to be with necessary guittg mens rea to construe the existence of an offence punishable under Indian Penal Code.^Under the circumstances, none of the offeruces alleged can be said to haue any reasonable^basts and in any uieu.t, the complaint/ charge sheet^being in^uiolation of Section 195^{(1) (a)} of Code of Ciminal^procedure, has to faiL

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As the comp[qnt has failed due to its unsustainabililA, the proceedtngs in their entirelA haue to fail, though the l't occused^alone approached this Court bg uay of this Criminal Petition.^"

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In Thotq Chandra Sekhar vs. The state of^And.hra Prad.esh, through S.If. O., P.S. Eluru Rural" West^Godauari

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sxs,J Crl P.No-2309 oF 2024

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Districtr2, wherein by reiying on various judgment including N.7. Rrrlzl.a. Roo (Supra I 1) and also the guidelines laid dorvn by the Apex Court in Bhajan LaI (Suprzr 9) more partrcularly, guicleline No.6, which says that where thcrc is an exprcss Icgal bar engrafted in any of the provisions of the Code or the concerned Acr (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efhcacious remedy to redress the grievance of the party, it was held I hat the proceedings in the said C.C were quashed by exercisinp; power under Section - 482 of Cr.P,C, It was also further held that the proceedings sha-ll not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cogn2ance on the complaint filed by V.R.O and it is against the purport of Section 195 (1) (a) of Cr.P.C.

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19 . With regard to the offences under COTP Act, i t is relevant to mention the objects and the reasolts 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 therewitl'r or incidental thereto. A reading of the said objccts of the said Act would reveal

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t2 Crimrnal Petition No.15248 of 2016, decided on 26.10.2016

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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 adverlise the same. Similarly, no^person having the control over a medium can advertise cigarettes or tobacco products, and no person shall be part of any advertisement.

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Section - 20 of COTP Act deals with punishment for failure to give specihed warning and nicotine and tar contents. But, in the complaints / charge sheets, there is no allegation agarnst the petitioners that thcy were carrying on trade or commerce in contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contents of the 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) of COTP Act, but

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

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In view of the above said discussion, accordine to this Court, transportation, possession, storage, sale and purchasc of lobacco products are not totally banned in the State of Telangzrn:r and also in the Country. Therefore, it cannot be said that Sections - 188, 269,27O, 272 and 273 of the IPC and Section 20 (2) ot C()Tp Act are attracted to the present case. Insofar as the offencc under Section 8 (c) read with Section 20 (b) (i1) (B) of the NDPS Act, the petitioner is liable to be prosecuted.

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In the result, the Criminal Petition is allowecl rn part ernd the proceedings against the petitioners / accused Nos.l and 2 in S.C.No.24 of 2027, on the file of tlrc learned VIII Additional Chief Metropolitan Magistrate. Hyderrabad, registered for the offences punishable under Sections 188, 269, 27O, 272 ancl 273 of the IPC and Sectron 20 (2\ of rhc COTp Act only are hereby quashed while permitting the pr( )sccution to

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1,1

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proceed further against the petitioners/ accused Nos.1 and 2 for the olfence punishable under Section 8 (c) reacl with Section 2O (b)

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(ii) (B) of the NDPS Act.

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Misceilaneous applications, if any pending, shal1 also

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stand closed.