Allowed

Mohammad Mosin Ali v. The State of Telangana

Telangana HC10 Jul 2024CRLP/7538/2024

Case brief

AI extract

What is this about?

Petition to quash FIR over possession and sale of banned tobacco/gutka products, registered under BNS and COTPA provisions. Court allowed it in terms of its earlier order, quashed proceedings against accused Nos.1 and 3 and directed return of seized property.

What did the court decide?

Quashing of FIR No.229/2024 against accused Nos.1 and 3 and return of seized tobacco packets on due identification and acknowledgment.

Mohammad Mosin Ali Vs The State of Telangana — Quashing and FIR | Telangana HC (2024)

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[³³⁸⁵ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY, THE TENTH DAY OF JULY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON'BLE SMT. JUSTICE K. SUJANA

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CRIMI NAL PETITION No: 7538 of 2024

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Between:

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Mohammad^{MosinAli, S/o. M. IVlomin Ali, Age:48years, Occ: Business, Rl/o.} H.No.3- 25219, Nayanagar,^{NearMadeenat\4asjid KodadSuryapet District.}

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...Petitioner/Accused-l

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P. Nadimkhan,^{S/o P. Jan Khan,Age. 50 years, Occ:Business' H.No.1-38,} Duraj Palli, Nalgonda.

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... Petitioner/Accused-3

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AND

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The State of^{Telangana, Rep by its Public Prosecutor, High Courtfor the} State of Telangana At^HYderabad.

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The Sub lnspector^{of Police, KodadTown Police Station. SuryapetDistrict}

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...Respondents/Defacto Complainant

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Petition under Section 482 of^{Cr.P .C praying that in the circumstances} stated in the Memorandum^{of Groundsof Criminal Petition, the High Courtmay} be pleased to^{quashthe proceedings in FIR No. 229 of 2024on the file of kodad} Town Police Station, Suryapet^{District againstthe Petitioners.}

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l.A. NO: 2OF 2024

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Petition under Section 482 of Cr.P.C^{praying that in the circumstances} stated in the Memorandum of Grounds of^{Criminal Petition, the High Cou( may} be pleased to direct the respondents/^{kodadtown police station to releasethe} prope(y seized Amber-149 Packets ( Each^packet containing 28 sachets) 149x28=4172 Sachets, Each^{Packet Rs 2601149x260Worth Rs. 387401-} ,²⁾ Bluebul- 25 Packets⁽ Each^{packetcontaining 10 sachets)25x1O=250Sachets,} Each Packet Rs.^{'1 10/-} , 25x11O^{WorthRs. 27501-} ,^{3) Vimal- 57 Packets( Each} containing 30 sachets) 57x30=1710^{Sachets,Each packetRs. 130157x130} Worth Rs. 74101- ,4) RRTobacco-^{34 Packets( Each containing 20 sachets)} 34x20=680 Sachets, Each^{packetRs. 1501,34x150 Worth Rs. 5100/-5).} Famous- 91 Packets ( Each containing 30^{sachets)91x30=273OSachets,} Each

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packet Rs. 7Ot- 91x70 Worth Rs. 6370/- 6).^{Super 126- 47 packets Each packet} Rs 60/- 47x60 Worth Rs.^{282Ot-All Worth Rs 63,190/- in FIR NO 2'29 of 2024 on} the file of kodad^{Town Police station, suryapet Districtin favour of the petitioner-} 1.

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This Petition coming on for hearing,^{uponperusingthe lr/lemorandumof} Grounds^{of Criminal Petition and upon hearingthe argumentsof Sri Y. BALA} MURALI, Advocate for^{the Petitionersand the Sri ARUN KUMAR DODDLA,} Additional Public^Prosecutor on^{behalf of the RespondentNo.1 and None} Appeared for the^{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.7538 of 2024

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ORDER:

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This Criminal Petition is hled under Section 528 of Bharatiya Nagarik Suraksha Sanhita^(for short tsNSSJ^to quash the proceedings against the^{pe ti Lioners/ accused Nos.1} and 3 in Crime^{No.229 of 2024 on the file of Kodad Town Police} Station, Suryapet^{District, registeredfor the offences punishable} under Sections 275,223^{(b) of BNS and 24 (1) COTPA.}

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Heard Sri Y.Bala Murali, learned counsel for the petitioners as well as Sri Arun Kumar Doddla, learned Additional Public Prosecutor for responden^ts /^{State. Perused the} record.

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Learned counsel for the petitioners submitted that the matter is squarely covered by lhe^{order dated 15.O4.2024 in} Criminal Petition No.23O9^{ot 2024.}

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4- Learned Additional Public Prosecutor also submitted that the issue in the^{present criminal petitionis covered} by^the earlier order in^{the abovecriminal petition.}

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In view of the said representation and as^{the matteris} squarely covered by^{the order} in^{the abovecriminal petition,}

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this criminal petition is allowed in terms of the above said order, adopting the reasoning contained therein. The proceedings against the petitioners/ accused Nos. 1 and 3 in Crime No.229 of 2024 on the file of Kodad Town Police Stalion, Suryapet District, are hereby quashed. Further, the Station House Officer/ Investigating Officer is hereby directed to return the seized property on proper identihcation and verification undt:r due acknowledgment.

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Pending miscellaneous petitions, if any, in this Criminal Petition shall also stand closed.

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Sd/. MOHD. ISMAIL ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To, \

1 . The Judicial First Class^{Magistrate at Kodad.}

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The Station House Officer,^{KodadTown Police Station,suryapet District.}

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Two CCs to the Public^{Prosecutor, Highcourt for the state of Telangana at} Hyderabad.^(OUT)

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One CC to SRt Y. BALA^{MURALI, Advocate} [OPUC]

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Two CD Copies

kam

HIGH COURT

DATED:1010712024

ORDER

CRLP.No.7538 of 2024

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ALLOWING THE CRIMINAL PETITION

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,tl e{

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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 of 2021, on the file of the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 188, 269, 27O, 272, 273 of the lndian Penal Code, 1860 (for short 'the IPC'), Section 8 (c) read with Section 20 (b) (ii) (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, 2003 (for short the COTP ActJ.

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Brief facts of the case of the petitioners is that on 27.O3.202O while police were in patrolling, they found the petitioners possessing, selling and 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 188, 269, 270, 272 and 273 of the tPC, Section 8 (c) read wlth Section 20 (b) (ir) (B) of the NDPS Act and Section 20 (21 of the COTP Act, respectively. Basing on the said complaint the Police registered the case in Crime^No.53 of

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

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2O2O and after completion of investigation, they filed charge sheet and lhe same was numbered as S.C.No.24 of 2O2). on the lile of the VIII Additional Chief Metropolitan Magistrate, Hyderabad.

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Heard Sri Y. Bala Murah, Iearned counsel appearing on behalf of the petitioners as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of the respondents.

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Learned counsel for the petitioners submitted that the allegations ievelled against the petitioners are vague antl did not attract any of the offence. Making his submission, he relied on the judgment of this Court vide order dated 05.07.2O2L irt Criminal Petition No. 1 52 ol 2O2O, wherein this Court quashed the proceedings against the petitioners and he further submitted that the present matter is also covered by that order, As such, he prayed the Court to allow the Criminal Petition.

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Per contra, learned Assistant Public Proset:utor submitted that he has no objection with regard to Sections 188, 269, 27O, 272, 273 of IPC and Section 20 l2l of the COTP Act. The petitioners were a-lso charged for the offence under Section Section 8 (c) read with Section 20 (b) (ii) (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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SKS,J Crl.P.No.2309 OF 2O24

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RELE VANT PROVISIOffS UffDER IPC;

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"788. Dsobedience to order dutA promulgated bA public seruant. - tuhoeuer, knowing that, by an order promulgated bg a public seruant lawfullg empouered to promulgate such order, he is directed to abstain from a certain act, or to take certain^propeftV in^{hispossession} or under his management, disobeys such^dlrection, shnll, tf such disobedience causes or tends to^cause obsttaction, dnnogance or injury, or^,,isk of obstntction, annoAance or injury, to ang Person taufullg emploged, be punislrcd with simple^imprisonment for^{a tenn} uhich maA ertend to one moflth or with fine which^maA extend to ato hundred rupees, or uith both; and if^such disobedience causes or trends to cause danger^to humdn lik, health or safety, or causes or^{tends to} cause a riot or affrag, shall be^punished with impisonment of either descriptton for a term uhich mag extend to^six months, or with fi.ne which mag ertend to one thousand rupees, or with both.

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Explanation: It is not necessary thal the olfender should intend lo produce harm, or contemplate^his disobedience as likety to^produce harm. It is sufficient that he knous of the order which he d.isobegs, and^that his disobedience produces, or is likelA to^produce, harm.

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llluslretion: An order is promulgaled by a public seruant laLufullA empou.tered^{to promulgate} such^order, directing that a religious procession shall not^pass doun a cerlain street. A^{knotuinglgdisobeys the order,} and therebg causes danger of iot A^has committed^the olfence deJlned. in lhis section.^"

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"269. Negligent act likely to spread infection of disease dangerous to lik. - Woeuer unlawfutly^or negligentlg does ang act uthich is, and which he^knou)s or has reason to belieue to be, likelg to sPread^the infedion of any disease dangerous to life, sLnlt be punished uith imprisonment of either desciption for a tenn tuhich mag extend to six month,s, or uith fine,^or with both. "

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27O. Ma\gnant act lilcalg to spread infection of disease dangerous to tife. -^{Whoever malignantlgdoes} dng act u.)hich is, and which he knous or^{h,,s reasonto} belieue to be, likely to spread the infection of^ang disease dangerous to W, shall be^punished uith ifipisonment of either desciption fot a^term which^mag extend to tt o Vears, or uith fine, or uith^both."

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Adulteration of food or dink intended for sale.-Whoeuer adulterates anV afticle^of food or dink, so as to make such arttcle noious^as food or^drink, inteading to sell such article as food or dink,^or

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

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knoluing it to be IikeIA thot the same uill be sold as Jood^{or dink, shall be punished wttll imprisonmentof} either descrtption for a tem which mag ertend to six months, or tuith fne Lthich mag extend to one thousand rupees, or uith both."

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"273. Sate oJ noious food or drink- Whoeuer sells, or offers or eq)oses for sale, as food or drtnk, any article uhich has been rendered or h,.s become noious, or ts in a state unfi,t for food. or drinJg kttouting or hnutng reason to belteve that the same is non:ious as Iood or drink, shall be punished Luith imprisonment of either desciption for a term tuhich mag ertend to sir months, or with fne uhich mag ertend to one.tll/lusand rupees, or uith botLt"

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RELEVANT PROWSIOIvSU DER COTP AC?.

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htnishment for Jailure to giue specrfed warning and nicoline and tar contents.-

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AnA petson who -sells or distnbuLes cigarettes or tobacco products tuhich do not contain wither on the package or on thetr label, the specifed Luaming and. the nicotine and tar cantents shal[ in case of firsl conuiction be punisttable with impisonment for a term, uhich mag ertend to one gear, or Lutlh fi.ne which maA extend to one thousand rupees, or wtth both, and, lor^{thesecond. orsubsequent} conuiction, uith imprisonment for a term which mog extend. to tuo Aears and. utith fne uhich maV extend to three thousond rupees."

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The lis involved in the present petition is no more res integrd. A learned Single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and t}re State of Andhra Pradesh in Chldutala Shgamsubd,er as. St'rrte of Telo;ngar.dJ had an occasion to deal with the issues involved in the present criminal petition. After referring to various provisions of IPC, COTP Act and a.lso the principle laid down by the Apex Court and other High Courts in several judgments, the learned Single Judge had framed the issues, which are as under: 'Cl'l.PNo^{3231of 2018& batch, decided on 27.08.2018}

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

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"1) Whether the respondent/ Sub-lnspector of Police, is competent to investigate into the offence punishable under Sectrons 54 and 59(1) ofFSS Act?

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Whether the petitioners in all the petitions are lound committing any act with malicious intention, with knowledge and reason to believe that such act likely to spread the infection of any disease dangerous to life? And whether the petitioners selling or offering or exposing for sa.le as food or drink, any article which has been rendered or has become noxious or is in a state unfit for food or drink or reason to believe that the same is noxious as food or drink? If so, are they liable to be proceeded for the offence punishable under Sections 27O and 273 IPC.?"

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In the very same^judgment, the learned Single Judge further held that chewing tobacco and khaini are not the 'food' within the definition 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 Sectlons - 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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srs,J Crl.P.No,23O9 OF 2024

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account of transportation and if those products are consumed by human being, it would certainly cause damage to the hea-lth. Therefore, transportation of khaini or chewing tobacco bl rtself is not an offence under Section - 27O of lPC. 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 ol Sections - 7 (I ) (2) (3) (5) and Section 26 of COTP Act is an illegality. The learned Single Judge further held that registration of cases for the offence under Section - 20 l2l read with 7 (21 ot COTP Act is illegal. With the said findings, the learned Single Judge has quashed the crimes and calendar cases in the said judgment.

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8. In Sri Jaganath Enterprises Elutlt Vasandhi Hpati Rao

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os. The State of And,hra Pradesh2, a leamed 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 Anand. Ramd.hani Chaurasla3, Joseph KurTqn us, State of Keralaa, Sagged Ilassan Sayged Subhans, M/s. Pepslco Ind,la Holdings (Pvt)

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s!(s,J Crt.P,No.2309 OF 2024

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Ltd.., us. State of U,P.6 , Sanja.g Anjay Stores us. Union of India1, Boop Singh Tyagi us, States, State of Haryana vs. Bhajan Lals and Chidurala Shgamsubder (Supra 1), the learned Single Judge has quashed the FIRs/Calendar Cases. The learned Single Judge referring to the law laid down in Chid.urala Shgam.subder (Supra 1) held that despite the said authoritative pronouncement of law, status Eto continues. The said^judgment attained final.ity. Even then, the police are registering cases against accused 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 of the COTP Act can only be pressed into servrce in the limited circumstances only where there is violation of Sections - 4, 5, 6,7 and 10 of the COTP Act. By referring to the principle laid down by the Apex Court in Bhajan Lal and M/s. Pepsico India Holdings (Brt) Ltd., the learned Single Judge has quashed the^proceedings in various crimes/ calendar cases.

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S'(S,J Crl-P-No.2309 OF 2024

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1O. Another learned Single Judge of the High Court of Andhra Pradesh at Amaravati in V.Nageswara Roo us. Stote of Andhra Pradeshto had also an occasion to deal with the said issue and agreed with the principle laid down in Chidurala Shyamsubder (Supra 1).

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il. In Scygred Ilcsscn Segged Subhcrn (Supra 5), the Apex Court while dealing with legality of the order passed by the Bombay High Court in a batch of criminal writ petitions and criminal applications, which were frled challenging the registration of FIRs for the offences under Sections - 188, 272,273 and 328 ot IPC and Sections - 26 and 30 of FSS Act where there is an allegation of transportation and sale of Gutka/ Pan Masala etc., hetd that the 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 Bombay High Court for fresh consideration on the issue that whether the aJoresaid offences are made out in tl.e FIRs, which are subject matter of the cases pending before the Bombay High Court.

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In view of the authoritative pronouncernent of lau, in the aforesaid judgments, as discussed above, coming to the facts of the cases on hand, the allegations against the accused in respective

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

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

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"... The act done bA the petitioners i.e., trdnsportation of khaini and cfLewing tobacco though dangerous of human tife, it uould^not spread or infect ot casue ang disease oi accbunt of transpoftation and if those^p.oducts are consumed bg human being, it u.tould certainlg cause damage to the health. Therefore, transportation of khaini or cheuLing tobacco ts not bA itsetf $ not an offence under Section -^27O of IPC and it utould JalL wtthin Section 27O of IPC."

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

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sxs,J Crl.P-No.23O9 OF 2024

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only the offence would be attracted. Whereas, as discussed supra, the allegation in the present batch of cases is with regard to transportation, possession, storage, sale and purchase o1'banned products viz., tobacco f tambaku/gutka/ kh,atn\ / zarda/pan masala etc., respectively. Therefore, according to this Court, the said allegation does not fall within the ambit of Section - 272 of lPC. Therefore, I agree with the principle laid down by the learned Single Judges of the High Court of Andhra Pradesh in Chidurq,la Shgam-subd.er (Supra l), Sri Jaganath Enterprises (Sr-rpra 2) and. V.Nogeswara Rao (Supra 10).

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In Joseph Kurlan (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 adulteration rendered it noxious as a 'food or drink'; (3) that the accused knew at the time of adulteration that he would sell the article as food or drink and knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court clearly held that the offence is completed on the introduction of the adulterant. 'Adulterant' would mean that a material which is mixed to make the 'food' unsafe or drink unsafe. In the present case on hand, tobacco is not a food or drink and what is stated to be mixed in it is not clearly established by any cogent material as an 'adulterant'

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sr(s,J CrLP.No.2309 OF 2024

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for the offence under Section - 272 of IPC to be pressed into servlce

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Section - 273 of IPC deals with sale of a noxious food or drink, and as per which, whoever sells, or offers or exposes for sal.e, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with imprisonment specified therein. Therefore, if a person offers for sale a "food or 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 which has been rendered noxious. It also applies to food or drink only. As held in Sri^jaganath Enterprises, the word 'noxious' is not defined in IPC or in FSS Act. As per the dictionary meaning, the word hoxious' is harmful, deleterious, injurious, poisonous etc. As stated above, the allegation in the crimina-l petition is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco/ tambaku/ gutka/ kh aini / zardal par, 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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sxs,J crl.P.No.2309 OF 2024

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

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In JV,T, Ra,mrr Rao us. The State of A.P,, rep bg Public Prosecutort^I while dealing with the offences under Sections - 188 and 283 of IPC, the learned Single Judge of the combined High Court ofAndhra Pradesh held as under:

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"5) Euen if the allegation that the petitioner conducted public meetings at three road junctions controry to the pemission accorded for conductirtg of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could haue been giuen onlg bg the Superintendent or the Assistont Superintendent of

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

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sI(s,J Crl.P.No.23O9 OF 2O24

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Police of the Distict but not by anLt of lheir subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 end is uialated, Section 195 (1) (a) of Code of Ciminul Procedure mandates that the complant in this regard has to be made bg the public seruant concerned or some other person to whom such a public seruant is admtnistratiueLA subordinate to enable anA Court to take cognaance of^qn olfence under Sectton 188 of Code of Criminal Procedure. In the present case, the charge sheet uJas filed by the Sub Inspector oJ Police, who coutd not haue been the authoitA to grant permission for the public meeting and therefore, the complaint/ charge sheet b in uiolatton of the mdndatory prouision of Section 195 (1) 9a) of Code of Criminal Procedure.

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That apart, the offence alleged to haue been committed under Section 283 of the Indian Penal Code bg the petittoners and others is obuiously in consequence to the alteged offence under Sectton 188 of Indian Penal Code and is nat an independent of the same. Euen othenuise, the conduce of public meeting at three road junctions or obstruction to the traff.c could not haue been considered as causing ang danger or injury to ang person. In so far as the obstruction in any publtc waA is concerned, which can also be couered bg Sectton 283 of the Indian Penal Code, the charge sheet cites onlg one uitness to speak about the trafrt.c jam caused bg the road shou. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that publtc meeting resuLted in ang inconuenience bg wag of obstructing the traffc, the same cannot be considered to be uith necessary guiltg mens reo to construe the eistence of an offence punishdble under Indian Penal Code. Under the circumstances, none of the offences alLeged can be satd to haue ong reasonable basts and in ang uiew, the comptaint/ charge sheet being in uiolqtion of Sectlon 195 (1) (a) of Code of Ciminal procedure, ho.s to fail.

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As the complaint has faited due to its uns)stainabiliu, the proceedings in their entirelg haue to fail, though the 7.t accused alone approached this Coutl bg uag of thi.s Ciminal Petitton."

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Ir Thota Chand.ia Sekhar as. The stqte of Andhra Pradesfu t,nrrough S..Et O., P,S. Eluttt Rural, West Godaaari

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Districtr2, wherein by reiying on various^{judgment includingN' T.} Ro;nrra Rd.o (Supra 1l) and also the^{guidelineslajd downby the} Apex Court in BhajanLol (Supra 9) more^{particularly,guideline} No.6, which says that where there is an express^{Iegal bar engrafted} in any of the provisions of tfre Code or the concerned^{Act (under} which a criminal proceedings is instituted) to the institution^and continuance of the proceedings and/or whcre there is a^spccific provision in the Code or the concerned Act, provrding eliicacious remedy to redress the grievance of the party, it was held that the proceedings in the said C.C were quashed by exercising power under Section - 482 of Cr.P.C. It was also further held thal the proceedings shall not be continued due to technical defect of obtaining prior peimission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint frled by V.R.O and it is against the purport of Section - 195 (1) (a) of Cr.P.C.

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With regard to the offences under COTP Act, it is relevant to mention the objects ard the reasons of the said Act itself clearl5r 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 therewith or incidental thereto. A reading of the said objects of the said Act would reveal

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''^{Criminal Petition No15248of 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 dehne tobacco products, Pan Masala, gutkha and chewing tobacco are included rn 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 ciga.rettes 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 part of any advertisement.

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Section - 20 of COTP Act deals with punishment for failure to give specifred warning and nicotine and tar contents. But, in the complaints/charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contents of the complalnts/ charge sheets lack the^ingredients of Section 20 \2) of the COTP Act. Even there is no allegation that the se.ized products do not contain labels with^{statutorywarning.} 'lhus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 2A Ql of COTP Act, but

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also contrary to the principle laid down in Chidurala Shgamsubder. In vlew of the same, the oflence under Section 2O (2) of COTP Act is also liable to be quashed against the petitioners. I once again reiterate that I agree with the principle Iaid 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, according to this Court, transportalion, possession, storage, sale and purchase of tobacco products are not totaily banned in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections - 1BB, 269, 27O, 272 ard 273 of tl:,e IPC and Section 20 (2\ of COTP Act are attracted to the present case. Insofar as the offence under Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS Act, the petitioner is liab1e to be prosecuted,

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In the result, the Criminal Petition is allorved in Part and the proceedings against the petitioners / accu sed Nos.l and 2 in S.C.No.24 of 2021, on the file of the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 188, 269, 27O, 272 and 273 of the IPC and Seclion 20 {2) of the COTP Act only are hereby quashed while permitting the prosecution to

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proceed llrther aga.inst the petit.ioners/ accused Nos.1 and 2 for the offence punishable under Sectron 8 (c) read with Section 20^(b) (ii) (B) of the NDPS Act.

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Miscellaneous applications, if any^pending, shall^also

stand closed.

K. SUJANA, J

Date:15.O4.2024

SAI

Mohammad Mosin Ali v. The State of Telangana

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Mohammad Mosin Ali v. The State of Telangana

Case brief

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