Allowed

Tabrez Qualique v. The State of Telangana

Telangana HC16 Jul 2024CRLP/7834/2024

Case brief

AI extract

What is this about?

Petitioners sought quashing of proceedings in a gutka/tobacco seizure case and return of seized property. The matter being covered by an earlier order of the same Court, the petition was allowed on the same terms: proceedings quashed and seized property ordered returned.

What did the court decide?

Proceedings in Crime No.204 of 2024 quashed; SHO directed to return seized property on proper identification and verification under due acknowledgment.

Tabrez Qualique Vs The State of Telangana — Quashing and FIR | Telangana HC (2024)

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IN THE HIGH coURT FoR THE STATE oF TE LANGANA AT HYOERABAD

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

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PRESENT

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THE HONOURABLE SMT JUSTTCE K.SUJANA

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CRIMIN AL PETTTI ON NO: 7834 0F 2024

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Between:

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1 Tabrez Qualique. S/o lVtohammed Abdul eualique, Aged about 42 years. occ. Business. Fi/o. H.No zz_t_sa\taiz6l, Ft;i'iH."o;, suttanpur, Noorkhan Bazar, Hyderabad.

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2 S/o Ahmed Ati Agerd about 36 years Occ: Driver, H.No. Bider, i3ffi,:#,

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.....PETITIONERS/ACCUSED

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AND

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The State of Telanoana. throggh S.H.O. ^Dichpally police Station, Nizamabad District, rep. by pu6tic piosecu-tor, uigh cor',il;iliolir6ro.

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.....RESPONDENT/COMPLAINANT

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Petition under section - 528 of BNSS praying that in the circumstances

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stated in the Memorandum of Grounds or crimin'ar petition, the High court may

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" !.e n]9aseo to quash the- proceeding against the petitioners/accused in crime. No' 204 0t 2024 0n the of p.S- oicrriarri poric" it"tion, Nizamabad District, and :9lse-q-u-eltly^{direct the porice Dichpailyio return} the sized materiar in crime. No. 204 of 2024

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l.A. NO:2 oF 2024

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Petition under Section . S2g of .BNSS praying that in the circumstances stated in the Memorandum of Grounds or cri[rin'ai'iretition, the High court may be pleased to direct the oorice to return tne serzei materiar arong with vehicre vide its No' KAo'rAF239s in crime. No. 204 .irn;; on the fire of p.s. Dichpary Porice Station, Nizamabad District to the petiiio;;;Accused, pending disposar of the above criminal petition

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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 Burri behalf of Ganesh, the Sole RespondentAdvocate for the petitioners and the AJditionat ,ri,O "r*"Jr"r" ",

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The Court made the following: ORDER

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THE HONOURABLE SMT. JUSTICE K. SUJANA

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CRIMINAL PETITION No.7834 of 2o24

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ORDER:

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This Criminal Petition is filed under Section 528 Bharatiya Nagarik Suraksha Sanhita (for short tsNSSJ to quash the proceedings against the petitioners / accused Nos. 1 and 2 in Crime No.204 of 2024 on the hle of Dichpally police Station, Nizamabad District, registered for the offences punishable under Sections 272, 275 of BNS, Sections 5 and 7 of COTP Act.

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Heard Sri Burri Grahesh, learned counsel for the petitioners as well as Sri Arun Kumar Doddla, learned Additional Public Prosecutor for respondent/ State. perused the record.

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[carned counsel for the petitioirers submitted that the matter is squarely covered by the order dated 15.04.2024 in Criminal Petition No.2309 of 2024.

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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 allowed in terms of the above said order, adopting the reasoning contained therein. The proceedings against the petitioners/accused Nos.1 and 2 in Crime No.2O4 of 2024 on the file of Dichpally Police Station, Nizamabad District, are hereby quashed. Further, the Station House Officer/lnvestigating Ofhcer is hereby directed to return the seized property on proper identihcation and verihcation under due acknowledgment.

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

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Sd/- P. PADMANABHA RE DY ASSISTANT REGIS AR

//TRUE COPY//

SECTION OFFICER

To,

The Station House Officer, Dichpally Police^{Station, Dichpally Nizamabad District} 2. One CC to Sri Burri Grahesh, Advocate [OPUC]

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Two CCs to the Public Prosecutor, High Court^{for the Stateoffelangana,at} Hyderabad [OUT]

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Two CD Copies

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(Atong with a copy of the order dated 1514124 in Crl.P.No. 2309124) Y,/

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HIGH COURT

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DATED: 1610712024

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ORDER CRLP.No.7834 of 2024

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ALLOWING THE CRIMINAL PETITION

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ncod4 W, {1t.oVY

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THE HONOURABLE SMT. JUSTTCE K. SUJANA CRIMINAL PETITIoN No.23O9 oF 2024

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ORDER:

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This Criminal Petition is Iiled under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.p.C.J to quash the proceedings against the petitioners/accused Nos.I ald 2 in S.C.No.24 of 2O2L, on the frle of the learned WII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 1gg, 269, 22O,272,273 of the Indian Penal Code, 1860 (for short^.the IpCJ, Section g (c) read with Section 20 (b) (ii) (B) of the Narcotic Drugs and psychotropic Substances Act, 1985 (for short^.the NDpS Act) ald Section 20 (2) of the Cigarettes and Other Tobacco products Act, 2OO3 (for short 'the COTPActJ.

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Brief facts of the case of the petitioners is that oo 22.O3.2O2O 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, 27O, 222 arrd. 273 of the IPC, Section 8 (c) read with Section ZO 1Uy 1it1 @) of rhe NDpS Act and Section 20 (2) of the COTp Act, respectively. Basing on the said complaint the police registered the case in Crirne No.53 of

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srs'J crLP.No.23Og^{OF 2024}

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2O2O arrd^{after completion of investigation,they filed charge sheet} and the same^{was numbered as S C'No.24of 2O2l on the file of the} VIII Additional Chief^{Metropolitan Magistrate, Hyderabad'}

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Heard Sri Y. Bala^{Murali, learnedcounsel appearingon} behalf of the^{petitionersas well as Sri S' Ganesh' learnedAssistant} Public Prosecutor^{appearing on behalfoftherespondents'}

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4 . Learned counsel^{for the petitionerssubmitted that the} allegations^{levelled against the petitionersa-re vague and did not} attract any of^{the offence. Making his submission' he relied on the} judgment of this Court^{vide order dated O5'O7'2O2 1 in Criminal} Petition^No. 152^{of2O2O,wherein this Court quashed the} proceedings against^{the petitioners and he furthersubmittedthat} the present^{matter is ul"o} "ou"t"d^{by that order'As such' he} prayed the Court^{to allow the Criminal Petition'}

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Per contro,^{leamedAssistant Public Prosecutor submitted} that he has no^{objectionwith regard to Sections la9' 269' 27O'} the 272, 273 of^{IPC andSection20 (2\ of} COTP Act. The^{petitionerswere also charged for the offence under} Section Section^{8 (c) read with Section 20 (b) (ii) (B) of the NDPS} Act and he^{has prayedthe Courtthat the trialhas to be conducted} for the offence^{punishable underNDPS Act'}

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srs,J Crl.P-I{o.2309 OF 2024

RELEUANT PROWSIOirS

IPC:

"788.^Dtsobedience to order dulg promuQated bg public seruant. - ulaeuer, knotting ttat, hg an ord.er promulgated bg a public seruant taufullV empowered to promulgate such order, he is directed to abstai.n from a certain act, or to take certatn properl! in his possession or under his management, disobegs such direction, shal\ if such disobedience causes or tends to cause obstructiot\ annogance or injury, or risk of obstruction, annogance or injury, to anA person laufully employed, be punished. with simple impisonment for a tenn uhich may ertend to one month or uith fne uhich may ertend to ttuo lundred. rupees, or uith both; and if such disobedience causes or trends to cause danger to human life, health or safetg, or causes or tends fo cause a iot or aJfrag, slull be punislrcd with inpisonment of either description for a term tuhich mag ertend. to six months, or uith f.ne uhich mag extend. to one thousand rupees, ot tuith both.

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Erylanation: It is twt necessary that the oJfender should intend to ptoduce tarm, or mntemplate his disobedience as likelg to produce lam. It is sufficient th.at he lmotus of the order uhich Le disobegs, and that his disobedience produces, or is likelA to produce, harm.

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Ilfustratton: An ord.er is promulgated. bg a public seruant lawfullA empotuered to promulgdte such order, directing tLat a religious procession sh,'ll not po'ss doun a certain street. A knowinglg disobegs the order, and thereby causes danger of riot. A ho's committed the oJfence d.efined in this section.^"

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"269. NegLige act likely to spread infectton of disease dangerous to W. - Whoeuer unlaufullg or neglQently does ang act uhich is, and. uthich he knows or has reason to belieue to be, likelg to spread the infection of ang disease..Qangerous to ttfe, shall be punished with imprisonment of etth.er description for a term uhictt maA extend to six^rrlrlnths, or with fine, or tuith botlL"

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27O. Malignont act likely to spread. infection of disease dangerous to lik. -^Wlpeuer malignantlg d.oes ang act which is, and uhich he knows or has reason to belieue to be, likelg to spread the infection oJ ang disease d.angerous to life, shall be punished uith impisonmcnt of either desciption for a term which may ertend to tuo Aeo.rs, or uith fine, or uith both."

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Adulteration of food or dink intended for sale.-Whoeuer adulterates ang afticb of food or dintg so as lo make such article noxbus as food or drink, intending to sell such article as food or dink, or

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sKs'J crl.P-No.2gO9^{OF 2024}

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knouting Lt to be likelg^{that the same} uill^{be soldas} food^{or dink, shallbe punishedwith impisonmentof} eithe,r dasciption for^{a term uhichmag ertend to sL.} months, or with fne^{uthich mag extend to onethousand} rupees, or with both."

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'273. S<tle of noious food or dink.- Whoeuer^sell:;, or offers or exposes lor^{sale, os} food^{or dink, an11} article which has been^{rendered or h17sbecomenoxious,} or is in cr state unft for food^{or dink,knouingor lnving} reason to betieue lhat^{the sanleis nonxiousos} food^or d,rink, shall be punished^{ustthimprisonment of either} d.esciplion for o tenn^{uhich flLagextendto six montlLs} or uith llne which may^{ertendto onethousandrupees,} or uith both. "

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REI,EVANT PROWSTO^{SUNDER COTP AC?|.}

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htnishment for failure to^{givespecifie'd} tuarning and nicotine and^tarcontents-

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(2) Ang person u.tho setls^ordistibutes ciqarettes or tobacco^{products ttthich do not contain} wither on the^{pockageor on tlleir label' thespecified} uarning and the^{niatineand tdrcontentsshall in cqse} oI first conuiction^{be punishable uith imPisonment} Ior^a term, tuhich maA ertend^{to'6rui gear, or uith} fine^uthrch maA extend to one thousand^{rupees, or with both, and,} fot^{thesecondorsubsequent conuiction'with} imprisonment for a^{tennu.thichmaV ertendto trto years,} and uith fne^{Lt-thich maA} )ertend^{to three thousand} rupees.

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The lis involved^{in the presentpetitionis no more res integra'} A learned Single^{Judge of the High Court ofJudicatureat} Hyderabad for the^{State of Telanganaarrd the State of Andhra} Pradesh in Chidurolla^{Shgannsubdet as' State ofTelanganar} had an occasion to^{deal with the issues involvedin 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 Single Judge had} framed the issues,^whichare as^under:

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'^{crl.P No.37310f 2018& batch, decided on 27.08.2078}

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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 Sections 54 and 59(1) 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 likely to spread the infection of any disease 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 becomenoious 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 223 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 (i) 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 ald 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 S€ction _ 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 crLP.No.2309 OF²⁰²⁴

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account of tr.tnsportation and if those products are consumed by human being, il would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco by itself is not an offence under Section - 27O of IpC. pan Masala is not a tobacco product to fall within the purview of COTp Act. Therefore, the provisions of the COTP Act have no application, thereby registration ol' crime on the ground of violation of Sections - 7 (1) (2) (3) (5) and Section 26 of COTP Act is an illegality. The learned Single Judge further held that registration of cases for the offence under Section 20 (21 read with 7 (2) of COTP Act is illegal. With the said findings, the Iearned Single Judge has quashed the crimes and ca.lendar cases in the said judgment.

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ln Sri Jaganath Enterprlses Eluru Vasandhi Tripati Ro.o os. The State of Andhra Prad.esh2, 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 ofIPC, FSS Act, COTp Act and relytng on the principle laid down in Anand Rarnd.hani

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Chaurasiq3, Joseph Kurian vs. Stdte of Kerala+, Sagyed Hassrrn Sagged Subhans, hl/s. Pepsico India Eotdings (pvt)

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'zozo 1t1art 1ca.1^{z1s (ApHc)} t 2019 SCC Onlin" Bom 1857 o tsss 111 sc.t zzu t zota ltn (sc) s:aa

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strs,J CrLP.Ilo.2309 OF 2024

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Ltd-, vs. State o! lJ.P.6, Sanlag Anjag Stores as. Lfnion of IndiaT, Boop Singh Tyegi as. StateE, State of Haryana vs. Bh-a.jan LaF and, Chldurala Shgamsubder (Supra l), the learned Single Judge has quashed the FlRs/ca.lendar cases. The rearned single Judge referring to the raw laid down in chidur,,ra shgamsubd.er (Supra r) hetd that despite the said authoritative pronouncement of law, status quo continues. The said judgment attained finality. Even then, the police are registering cases against accused on the very sarne a.llegations for the very same offences.

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Referring to the provisionj of Sections _ 1gg, 269, 2ZO, 222 and 273 of IPC, the leamed 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 service in the limited circumstances only where there is violation of Sections - 4, S; 6,7 and lO of the COTp Act. By referring to the principle laid down by the Apex Court in Bhajan LaI 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 (z) crimes 25o

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7 2017 scc ont-ine Cal 16323

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"^{z@2 crt.L.t.} z1l2

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'^{1992supp(U scc} 33s

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SES.J CrLP.No.2309 OF 2024

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Another learned single Judge of the High court of Andhra Pradesh at Amaravati in V.Nagesqtqra Rrro us. State of And.hra Prq4sslto had also an occaslon to deal with the said issue and agreed with the principle laid down in Chiqurata Shgamsubd,er (Supra 1)

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In Sagged .f,Iassan Sagyed Subho.n (Supra 5), the Apex Court r,r,hile dealing with legalit5r of the order passed by the Bombay High Court rn a batch of criminal writ petitions and criminal applications, which were filed challenging the registration of FIRs for the offences under Sections _ 1gB, 272, 223 and 32g of IPC and Sections _ 26 and, 30 ,of FSS Act where there is an allegation of transportation and sale of Gutka/pan Masala etc., held that the judgment of Bombdy High Court is contrary to the provisions of the Act and law laid down by it. With the said Iinding, the Apex Court remitted the matter to ttre Bombay High Court for fresh consideration on the issue that whether the aforesaid offences are made out-.in the FIRs, which are subject matter of the cases pending before the Bombay High Court.

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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

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l0 2020 Supreme (Ap) 348

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sl(s-J CrLP.No.2SOg OF 2Oi4

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cases are transportation, possession, storage, sale and purchase of banned products viz., respectively. rn Chldurala 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 Sectio n _ 2ZO of IpC arrd that manufacturing of pan masa.la is not included in Section 223 of IpC and, therefore, the same is not arl 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 bg e petitioners thoush. transportation dansero"s oJ kha;i ""i "1;:l,Ji"ioJJ;; "1^{nuiai ,ii}o,,,l"oi),on* spread. or infed or cisue ,"g ai;"". ":if,"_un, of transpottation and. tf^{-ri""-i"-"iii|} ,r" cnnsumed. bg _-__iirelore, -httyan^{b;ing, it _["a-JJnointg} cause damage -.p th, heaUn. transportation.of khatni or chetiig toOo"i * not IpC b a its and. e t r it is tuoutd not .an- fati-uithin ofk nce ""iii S";;";-;;;;;;C."i"ii.iil ) zo "t

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Section _ 222 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 delinition of .adulteration, in IpC. The defrnition adu.lterant, is found in the provisions of the FSS Act. Section _ 3 (1) (a) of the FSS Act deals with adulterant, which meals a material which could rnake the Tood, unsafe or sub_standard or mis-brarded. According to Section _ 222 of IpC, if a material is used to ma_ke the food unsafe/sub-standard or mis_branded, then

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sxs'J^I c.l.P.No.23o9^{Ol 2024}

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only the^{offencewouldbe attracted' Whereas'as discussedsupra'} the allegation^{in the present batch of cases is with regard to} transportation,^{possession, storage' sale and purchzrse of banned} products^vtz.,tobacco ftambaku/^{gutkal khatnilzarda/par. masala} etc., respectively.^{Therefore,accordingto this Cr:urt'the said} allegation^{does not fall within the ambit of Section - 272 of IPC'} Therefore, I^{agree with the principlelaid down by the learned} Single Judges^{of the High Court of Andhra Pradeshin Chidurala} Shgam.subder^{(Supra 1), Sri JaganathEnterprises(Supra2)} and V.Nageswara^{Roo(SuPra 10)'}

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In^{Joseph Kuriqn (Supra 4)' the HonlcleSupremeCourt} held that^{for Section 272} -^{IPC to be attracted'the following should} be present.^{(1) That the articleirr0olvedwas food and drink meant} to be consumed^{by Iive persons;(2) that the accust:dadulteratedit} and the^{adulterationrendered it noxious as a 'food or drink'; (3)} that the^{accused knew at the time of adulterationthathe would} sell the^{article as foodor drinkand knew that such article cannot} besoldasfoodordrink.TheHon,lcleSupremeCourtclearlyheld that the^{offenceis completedon the introductionof the adulterant'} Adulterant'^{would meanthat a material which is mixed to make} the 'food'^{unsafe or drink unsafe' In the presentcaseon hand'} tobacco^{is not a food or drinkand 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 ZO24

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for the offence under Sectio n _ 272 of IpC to be pressed into servtce.

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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 sale, 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 hoxious'is not delined 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, sa-Ie and purchase of banned products viz., tobacco/tambaku/gutka/khatnilzarda/pan masala etc.,

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respectively. Therefore, according to this Court, the contents ofthe complajnt/charge sheet lacks the ingredients of Section _ 223 of IPC

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..;&.

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sKs,Jl. ctl.P.No.23o9 oF 2024

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

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In ,lV. T. Rama Rao os. The State o! A.p., rep bg public Prosecutott⁾ while dealing with the offences under Sections - 1gg and 283 of IPC, the learned Single Judge of the combined High Court of Andhra Pradesh held as under:

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"5) Euen if tLe allegation that the petitioner conducted public meetings at three road junction-s contrary to the petmission accorded for conducting of a pubtic meeting only at one specifi.ed place is true, such a direction under Section 30 of the Police Aci, 1861 could haue been qiuen only bg the Superintendent or the Asststint Supeiitenient of

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"^{Criminal Petition} No.5323 of 2009, decided on t7.Og.ZOO9

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/' (\

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strs.J CrLP.Ito.23Og OF 2Oi4

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Potice of the District b subordiiates.i;;;i'"i!""12:,":0";10",.,{,:#[ secti.on 30 of the potice Acr, lah "ia-i'-iirrZZi. Section l9S (I) (a) of Code of Ciminal pr";;;;;; manda.tes that the complain, ii ,no ngora- iir""i"LZ made bg the public seruant concemed or some ottar pe:s?n. to whom such a public ""-oni-'1" ad,ministratiuely subordinate to enable ang Couft to X!j-:y::::*.r!^{on ot"n.. undersectiont88} of -uue .,J wnmtnal l+ocedu re. ln the present case, til charge sheet u_tas fited bg the Sub lnsDector nf p^t;^tuho .could not haue b;." ,i;-;;;;;;;; i",;;;:, permission for the pubtic meedng and tnir"loi, ti" complaint/ clurge sheet is ii uiolation^. ";^;:;: Ciminal^procedure. mandatory prouision of section t si iti ;; "t;ia.'Jt

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,^6. Tho,t apaft, the offence alleged to hnue been -committed under Scciibn 253 oi the - In;;; Penal Code by the petition_ers and othei i" ,trt "Jl, rn^consequence to the alleqed og"""" ""ai, SiJoX 188.of Indian penat Code ind ii' not "" i;;;p;;;;"; meeting of the same.. at three Euen road otheru)ise, junctions ,n" or "onau".-[i obstntctioh,Ulheiiiii t.ralfic could not haui bee4 considered as causino any.danger or injuyo ong'p.r"oi. ;-"; h; ;";# obsttuction in ang public'Lrog is anrunl;,;;; ca.n also be couered bg Secion 2g3 .f t; ;;;; Penal Code, the charge'sheet ates ontg'on. i;;" t2 speal: about the lralfic jam caused bg the road show. But, u-,hen the ioniu at b as.t at' o nelL;; ; :;;i' fl :X,f#': #. ;W gatl@ing for that public meefino resulted in -_,, t1;11uenienc7 bg was oI obstruri,^s ;hr-;rii;,1:,;i grtilU same cannot mens rea be consid.ered to construe to tn" be .ri.,i"iJ"ii"rluJith ";;;;.;; ollence punishable under t"di"" p.riA;,;;. lj;;: the circunst.ances, none of the "1I"";;i;o;';;^ ?:^.:."i9 *r: ?"0^{reaionabte-basis} ;;;i; ;;; uteu), the complaint/ chnroc s:heet being i" .ot61iolr. !^{s":n:1_les (t) (a) ol ioaeoy c,rmino;;;;;;;;;:} has to fail.

¶131

As -.the complaint h6-s failed due to its unsustainab-ilitg, the proceedings fn nefr endreiit approached. naue to fait, this though Coirt bU the wag 1" of "".r"ia-'"ii,i.this Criminal Petition. "

¶132

ln Thota Chand.rq Sekhcr us. The state of And.hra Pradesh, through S.ELO., p.S. Eluru Rural, West Godaaari

¶133

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srs,J 1 \ crl.P.No.2309 OF 2024

¶135

Districtt2, wherein by relying on various judgment including N.?. Rolna Rao (Supra 11) and also the guidelines laid down by the Apex Court in Bhajan Ial (Supra 9) more particulariy, guideline No.6, which says that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 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 that the proceedings shall not be continued due to technical defect of obtaining prior permission underu Section - 155 (2) o[ Cr,P.C. and taking cognizance on the complaint filed by V.R.O an<l it is against the purport of Section 195 (1) (a) of Cr.P.C.

¶136

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 therewith or incidental thereto. A reading of the said objects of the said Act would reveal

¶137

"^{Criminal Petition No.15248of 2015, decided} on^26.10.2016

¶138

¶139

sxs,J CrLP.I{o.2309 Ot 2024

¶140

¶141

that a total ban of tobacco products was not envisaged by the said Act. The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section - 3 (p) of the COTp Act and the schedule therein define tobacco products. Pan Masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section _ 5 of the COTP Act deals with prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged. in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products, and no person shall be part of any advertisement.

¶142

Section - 20 of COTP Act deals with punishment for failure to give specified warning and nicotine and tar contents. But, in the complaints/charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and 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 l2l of COTp Act, but

¶143

inni$-.

¶144

srrs,J⁽ crLP.No.2309 oF 2024

¶145

also contrary to the principle laid down in Chidurc:la shyam-subder. In view of the sarns, the offence under section 20 (2) of COTP Act is also liable to be quashed agajnst the petrtioners. I once again reiterate that I agree with the principle laid down by the learned Single Judges of the High Court of Andhra. pradesh in Chidurala Shyamsubder, Sri Jaganath Enterprises and V. Nageswara Rao.

¶146

In view of the above said discussion, according to this Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections _ lgg, 269,27O,272 and 273 of tlne IpC and Section 20 {21 of COTp Act are attracted to the present case. Insofar as the offence under Section 8 (c) reacl wirh Section 20 (b) (ii) (B) of the NDpS Act, the petitioner is liable to be prosecuted.

¶147

,') In the result, the Criminal petition is allowed in part and the proceedings against the petitioners/accirsed Nos.l and 2 in S.C.No.24 of 2021, on the file of thr: learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 1gg, 269, 27O, 272 and 273 of the IpC and Section 20 (21 ot the COTp Act only are hereby quashed while permitting the prosecutlon to

w=.$^-:-

.i^{. -*a:}

strs,r, crLP.No.2JO9 OF 2024

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¶154

proceed further agains t the petitioners/ accused Nos.l and 2 for the offence punishable under Section g (c) read with Section 2O (b) (ii) (B) of the NDpS Act.

¶155

Miscellaneous applications, if any pending, shall also stand closed.

¶156

Date:L5.O4.2024

¶157

K. SUJANA, J

¶158

SAI

Tabrez Qualique v. The State of Telangana

Case brief

What is this about?

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Tabrez Qualique v. The State of Telangana

Case brief

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