Allowed

Kowkuntla Nandu Kumar, v. The State of Telangana

Telangana HC20 Aug 2024CRLP/9566/2024

Case brief

AI extract

What is this about?

This common order allowed a large batch of Criminal Petitions challenging the quashing of criminal proceedings against accused for alleged transportation, possession, and sale of banned tobacco products. The Court quashed the proceedings, holding that police lack jurisdiction over FSS Act offences and that the complaint facts lack ingredients for various IPC and COTP charges.

What did the court decide?

The proceedings against the petitioners in the respective crimes/calendar cases are quashed. The Station House Officers/Investigating Officers are directed to return seized property/vehicles.

Kowkuntla Nandu Kumar, Vs The State of Telangana — Cheque Dishonour | Telangana HC (2024)

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[^338s I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENry FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE K. SUJANA

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CRIMINAL PETITION NO: 9566 OF 2024

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Between:

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Kowkuntla Nandu Kumar, S/o K. Ramiaha, Aged.35 Years, Occ:^Business, Ryol -1-9/49, Shivaji Chowk, Tandur.

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Gudumala Srinivas, S/o.^g. Padmaiha, Aged. 43 Occ:^{Bussiness,No. 4-2'} 193, Tandur, T.S.

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...PETITIONERS/ACCUSED No.'l and²

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AND

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1 . The State of Telangana, Rep. by its Public Prosecutor, High^Courtat Hyderabad.

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N. Ramulu, Sub- lnspector of^police,P.S. Tandur Town,^Vikarabad

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...RESPONDENTS

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Petition under Section 528 of Cr.P.C^praying that in the^{circumstances} stated in the Memorandum of Grounds of Criminal Petition, the^{High Court maybe} pleased to quash the proceedings against the Petitioners/Accused.No.l and 2ⁱⁿ C.C.No. 37312024 of P.S. Tandur Town,^{Vikarabad pending on the file of the} Hon'ble JFCM, Tandur, Vikarabad.

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This Petition coming on for hearing, upon^{perusingthe Memorandum of} Grounds of Criminal Petition and upon hearing^{the arguments of Sri NANDA} KISHORE AMARCHAND YADAV, Advocate for the^{Petitioners and thePublic} Prosecutor for the State of Telangana on behalf of the^{Respondent Nos.1 and 2.}

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The Court made the following: ORDER

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THE HONOURABLE SMT. JUSTICE K. SUIANA CRIMINAL PETITION No.9566 of 2024

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ORDER:

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This Criminal Petition is filed under Sechon 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short'BNSS') by the petitioners/accused Nos.1 and 2 t<l quash the proceedings against them in C.C.No.373 of 2024 on the file of |udicial^{Magistrateof First Class,} Tandur, registered for the offences punishable under Sections 223, 275 of the Bharathiya Nyaya Sanhitha, 20'23 and Sections 20(2) of the Cigarettes and Other Tobacco Products Act, 2003.

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Heard Sri Nand Kishore Yadav, learned counsel for the petitioners as well as Sri Arun Kumar Doddla, Ieamed Additional Public Prosecutor for respondent No.l-State. Perused the record.

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Learned counsel for the petitioners 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 Presecutor also submifted

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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 petitiory 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 C.C.No.373 of 2024 on the file of ]udicial Magistrate of First Class, Tandur, are hereby quashed. Further, in case if the seizecl property ii hot deposited before the trial Court, the Station House Officer/Investigating Officer is directed to deposit the seized property before the trial Court. Further, the petitioners are directed to file an appropriate application for returning the seized property before the trial Court and on filing of such applicatioru the trial Court is directed to consider the same by imposing conditions thereon.

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

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/
sd/- T. UMALA DEVI
ASSIST REG
//TRUE COPY//
SE N OFFICER
To
1 . The Judicial First Class Magistrate, Tandur'.Vikarabad'
i. iii;3i;iil; Aori" oni".rliinaur'town Poiice station-' Vikarabad
!i 5. i;;tc; t" it u Fruii" prosuiuioi, iligh co"t for the State or relangana at
Hvderabad (OUT)
I 4. iii';"aek; 'snr. funr'ron KlsHoRE AMARcHAND YADAV' Advocate
I IOPUCI /
I
t
I 5. Two CD CoOies N
I pr
I

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HIGH COURT DATED:2010812024 \ ORDER CRLP.No.9566 of 2024

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ALLOWING THE CRL.PETITION te wY,il"' *""\p

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KL.J Crl.P. Na.l52 of 2020 & batch

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HON'BLE SRI .'USTICE K. LAKSHMAN

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CRINIINAL PETITION Nos.t52. 153. 155. 162 & 5826 OF 2020 Ah*D 3498. 3500. 3509. 3s14. 3768. 3879. 4046. 4070. 4077. 4098. 4099. 4100. 4r02. 4110. 4119. 4140. 4141. 4151. 4t57.4118.4182. 4187. 4194. 4216. 4230.4247. 4249. 42s1.4258. 4262. 4277. 4361.440s.4415. 4542. 4612. 4615. 4622.4632.4640. 4681. 4'.127, 4775 & 4825 0F 2021,

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COMMON ORDER:

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All the above Criminal Petitions are filed to^quash the proceedings against the petitioners - accused in respective Crimes / Calendar Cases. The details of relevant Crimes / Calendar Cases, offences alleged, nafure of offences etc.,^are mentioned in

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the following tabular form:

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sl. No.	Crl.P No.	CrimeNo-	Accused Number	Oflences allegedly committed	Natureofoffence
0l	3768121	21720ofPS Manohambad	sole	272,273 IPC& 20(2) rlw7(2)ol COTPA	TmnsportationofAmber
02.	r879/2r	33121of PS Kadam	sole accused	210&271tPC	Saleofbanned tobacco products
0l	4046/21	78/21ofPS^(T) Adilabad	Al&2	-do-	Saleofgutka/tobacco il,esallyin^qodown
04	4077tzt	2l/21 of PS Easgoan	sole accused	-do-	Possessionof gutka /tobacco in^panshop
05.	4098/21	185/21ofPS^(T) Nirmal	Alto3	270,273 IPC& 20 (2)ofCOTPA	Transportationof prohibited gutka
06	4099Dt	No.36/21ofPS Koutala	sole aceused	)10&?71tPC	Possessionoftobacco products inthehouse
01	4l00t2l	No.38/21ofPS Easgoan	sole	270&273tPC	Possessionofbamed gutka&other tobacco itemsin^panshop
08	4102/21	455/21ofPS Kukatpally	sole accused	136,273&r88 IPC&59(i)of FSSA	Transportationand sale ofprohibitedtobacco products
09	414U21	45/21of PS Chiragpally	Altol	2'70&2'73rPC& 2U,2)r/w7(2\of COTPA	Transportationof tobacco^products
l0	4151t21	198/21ofPS Chouhrppal	sole accused	2'12&273 rPC& 20⁽²⁾ofCOIPA	Storageoflobacco producsfor sale
1l	415'7t2r	134/21of^PS Chityal(NLG)	Atto4	272,273&328 rPC&20(r) &7 (3)ofCOTPA	Purchase andsaleof prohibitedtobacco products
t2	4182/21	74121ofPS Raghunadhpalem	Al&2	270&213IPC	Transportationofbanned tobacco/gutka
Il.	4187/2t	202i21ofPS^(T) Mancherial	sole accused	-do-	Possessionofbanned tobaccopmducts

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Crl.P. No.l52 of 20)0 A balLh

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t4. l5	424',7/2t 4249t2t	6ll21ofPSll Town Adilabad l0l/21ofPSI Town Adilabad	sole accusei Al&2	do do	a ls uc ,pro! n,ducts Possessionolbanned Salcofgutl.aand
t6.	425121	90/21ofPSI Town Adilabad	sole accusd	do	Abouttotmnsport noxious gutkaand tobaccoproducts
17.	4258t2t	9l/21ofPSI Town Adilabad	sole	-do-	Saleofbanned^gutkaand tobacco^products
r8.	4262/21	107/21ofPSI Torvn Adilabad	At&.2	-do-	Tmnsportationof^gutka and tobacco^producta
l9	42'77/2t	162/21orPS AMullapurm€t	Alto3	188,272,273 & 328tPC	Saleofbannedtobacco (tambaku)productsin lo..y
20	4405t21	202/21ofPSI TownNalgonda	sole accusd	t88, 272&271 IPC	Tmnsponalionof gutkrtobaccoproducts
2t	44t5t2t	232121ofPSlI (T)Nalqonda	sole accused	-do- 188269270	Possessionofbanned gutka /tobaccoproducts
22.	4542t21	87/21ofPSIll (T)Kothagudem	At&2	,,, 273r/w34 IPC& lofEDA&51 (b)ofDMA	Possessionoftobacco products inkirana shop
23	46t5Dl	225/21ofPS Nirmal Town	Al&2	270&273t?C	Possessionofprohibited tobaccoproducis forsale
24	4640/21	89/20of PS Mamada	A1	-do-rAv 34IPC	Transportalion ofbanned tobacco/Eutka^pockels
25	4681D1	186/2t ofPS Peddavoora	A2	328rlw5lt,212 &273tPC	Possessionofbanned gutka&totracco products in kirenasho p_
26.	472',712r	164/21ofPS Adibatla		270, 272&273 IPC&20(2)of COTPA	Transportatronof cigaretteorothratobacco products rvilhout valid
27.	4775121	234121ofPSI (T)Nalsonda	A1to4	328,272,273& I88IPC &	Saleofgutka&khaini
2lJ	4825t21	245121ofPS R	At&2	128, 270 273 rlw 5lIIPC&20 2	Transpo(ationolbanned
		Khanmam() 15l5/19 of	CALEN 270	()ofCOTPA DARCASES 273 &	sutka
29	t52/20	I-AJMFC, Warangal	A2 188, &58	, 420tPC ofFSSA Transp	ortationofbaredzarda products
10.	t53120	2724119of XVIIACMM, Hvd.	A2 272 IPC FSS	&273 &59of A, 2006 S	aleofzarda illegally
		3518/19 of	420	270&
ll	t55120	I-AJMFC, Warangal	A3 273 ofFS	, IPC&58 SA Transp	ortationofbanoed zarda
32.	t62t20	4737118of XI*MM, Sec.bad	272, &4 20 COT	273,336 20 tPC& (2t;. PA Sale che	ofprohibiled gutlaand wingtobaccoproducts
3l	5826t20	Special Magislrate ofIIClass, Jagtial A	t&2 188 273t	,270& PC TraNp	ortation of Ambcr gutka pockets
14	3498t21	216/20of JFCM, Devarkonda	At &2 420 IPC	&273 Saleofb	aonedtobacco andgutka Products
35.	3500/21	963119of JFCM, Miryalguda	Alto4 420 rPC ofc	&213 &20(i0 olPA2ool Trans	portationoftobaccoand gutkaproducls

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KI,J Crt.P. No.t s2 of 2020 & htch

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36	)509t21	452120of xxvMMc,	Al&2	188,270& 273 IPC,20 (2)ofCOTPA, 3ofEDA& 5l (b)of DMA	Storageofbannedgutka andother tobacco producrsillegallyfor sale
17.	35l412t	61U19of XXVMMC,	AIto8	t88,270,213 &420 IPC& 20 (2)of COTPA	Supplyofgutkaandothertobacco products
38.	4070/2t	547121of PJMFC, Gajwel	Al&2	272&_273 rPC&20(2) tlw1(2)of COTPA	TransporlationofAmber tobacco
39	4ll0/21	509n0of Spl.PCR Mobile Court-cum- JMFC, Adilabad	Alro5	2'70&273 tPc&20 (2) r/w 7(2)of COTPA	Transportationofpanmasalaand bannedgutka
40	4tt9t2t	5l2l21of Spl.PCR Mobile Court-cum- JMFC, Adilabad	Alto4	270,27t,272 &273rlw34 IPC Sec.3ofEDA	Tanspo(ation ofcottonseedsand bannedgutka
41.	4t40l2l	src No.202l of IVAMM- cum-[V AJCJ, L.B. Nagar	At &2	212&273 IPC&Sec.20 (l),20(2)of COTPA	Transportalionofbanned^tobacco andgutka
42	4t78/21	8l0l2lof IAJMFC, Klrammam	sole accused	2't0&273 IPC&20⁽²⁾ ofCOPTA	Purchaseandsaleofbanned Sutka
43	4t9412l	616712lof xvACMM, Nampally	sole accused	188,272& 273 IPC&20 (2)&5of COTPA	Saleoftobaccoproducts inhis shop anddisobeyingtherulcs imposedby Covt.in Not.No.505/FSS-l/21 dt.6.1.2I
41	42t6t2t	1298/21ol PJMFC, Khammam	A1&2	210&271 rPC&20⁽²⁾ ofCOTPA	'f ransponationofAmber gutka
45	4210t2t	829/21of PJMFC, Khammam	Al &2	-do	Transportationof gutkrpan masala
46	4361t21	10821of AJMFC, Asifabad	At&2	270&273 IPC	Possessionoftobacco^products illegallyforsale
4',/	46t2l2t	513120 of A.TMFC, Ninnal	Sole accusd	-do'	Purchase andsaleofprohibited gukapockets
48	462421	62A19of AJMFC, Nirmal	Al&2	-do-	Possessionofgulka^{packels at bus} standforsaleillegally
49	4632/21	413/20of AJMFC, Nirmal	A]	-do-r/w14 rPc&20⁽²¹ ofCOTPA	Tra-nsportationofbanned tobacco products

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Heard Mr. M.A.K. Mukheed,^{Mr. Gajanand Chakravarthy,}

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Mr. K. Surender, Mr.^{PraveenKumar Veerjala, Ms. P. Radhika,}

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KI,.J Crl.P. No.l52 oI2020 & tutch

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Mr. Srinivas Reddy Balakisti, Ms. C. Sunitha Kumari, Mr. Kondadi Ajay Kumar, Mr. S.M. Subhan, Ms. N. Arthi, Mr. Y. Bala Murali, Mr. Boggula Raju, Mr. S. Chandrasekhar, Mr. V. Yadukrishna Sainath, learned counsel appearing on behalf of respective petitioners and leamed Public Prosecutor appearing on behalf of respondents - State.

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The question involved in all the above matters is one and the same and, therefore, the same are disposed of by way of this comnon order.

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The main allegations against the petitioners - accused arc that they were transporting, possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku / gutka / khaini / zarda / pan masala respectively. The offences alleged against the petitioners are under Sections - 188,270,269,271,272,273,328. 336 & 420 read with 34 and 51 I of the Indian Penal Code, 1860 ( for short'IPC'); Sections -20 (l),20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short'COTP Act'); Sections - 58 and 59 ofthe Food Safety and Standards Act,2006 (for shorr 'FSS Act'); Section - 3 ofthe Epidemic Diseases Act, 1897 (for short 'ED Act') and Section - 5l (b) of the Disaster Management Act, 2005 (tbr short DS Act) respectively.

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KL.J Ctl.P. No.l i) o[ 2020 a barch

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The respective^{leamed counsel appearing on behalf of the} petitioners in the above criminal petitions would submit that^the contents of complaint / charge sheet lacks^{the ingredientsof the} offences alleged against : the accused. For the oflences^underthe provisions of FSS Act, only Food Safety Officer is having^{power to} initiate criminal^proceedings against^{accusedand the policeare not} having any power to register a case^{for the offencesunder the} provisions of FSS Act. There is no inducement by^{the petitionersand,} therefore, offence under Section^{-420 of IPC doesnot arise.} According to them, the^contents of^{complaint / charge sheet are also} lacking the ingredients of the^{offencesunder Sections- 269, 2'10, 27l,} 272,273,328 and 336 oflPC.

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i) According to them, there^{is no violationolSections - 20 (l),} 20 (2) and 5 read with 7^{(2) and 7 (3) ol the COTP Act.The} Investigating Officers /^{Complainants withoutfollowing the procedure} laid down under the Code of^{CriminalProcedure,1973(forshort} 'Cr.P.C.'),^{have registeredthe cases for the offence under Section -} 188 of IPC and laid charge^{sheet against the accused.Necessary} ingredients to attract^{the provisionsof Section- 3 of the ED Act and} Section - 5l^(b) of the DM Act^{are lackingin the complaint I charge} sheet.

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ii) With the above said^{submissions,the respective leamed} counsel sought to^quash the^{proceedingsin the aforesaidcrimes /} calendar cases.

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KL.J Ctl.P. No.l52 of 2020 & tutch

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On the other hand, learned Public Prosecutor referring to the principle laid down in thc State of Maharashtra v. Sayyed Hassan Sayaed Subhanl by the Hon'ble Supreme Court and in Gauesh Pandurang Jadhao v. The State of Mahrrsshtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtra3 by the Bombay High Court would submit that police are having power to register cases under various provisions of IPC, COTP Act, ED Act and DM Act. There is no irregularity in registering crimes, seizing matcrial including the vehicles and laying charge sheet against respective accused in the aforesaid crimes / calendar cases. According to him, the accused were transporting, possessing, storing, selling and purchasing the banned products viz., tobaca / tambaku I gutka I khaini / zarda / pan masala respectively. According to him, the accused have to face either investigation or trial and prove their innocence, and instead of doing so, they have filed the present criminal petitions under Section - 482 of Cr.P.C. which cannot be considered at this stage.

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

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

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20r 8 ArR (SC) 5146 2016 Cri. L.J. 2401

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2019 SCC OnLine Bom 1857

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KL.J C .P. No.l52 o12020 & batch

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nEt,EVANT PROVISIONS Utr-l)llR IPC

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*lEE. Disobedience to order duly promulgated by public servant.-Whoever, knowing that, by^{an order promulgatedby} a public servant lawfully empowered^{to promulgatesuchorder,} he is directed to abstain from a certain^act, or^{to take certain} order with certain^property in his^{possessionor under his} such manag€ment, disobeys such direction, shall,^if disobedience causes or tends to cause^{obskuction, annoyanceor} injury, or risk ofobstruction, annoyance^{or injury,to any person} lawfulty employed, be^{punishedwithsimple imprisonmentfor a} term which may extend to one^{month or with finewhich may} ext€nd to two hundred^{rupees, or with both; and ifsuch} disobedience causes or trends^{to cause dangerto human life,} health or safety, or causes or tends^{to causea riot or affray, shall} be punished with imprisonment^{of either descriptionfora term} which may extend to six months,^{or with finewhich may extend} to one thousand rupees, or^{with both.}

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Explanation.-It is not necessary^{thattheoffender should} intend to^produce harm, or^{contemplatehis disobedienceas} likely to produce harm. It is^{sufficientthat he knows of theorder} which he disobeys, and that^{his disobedience produces,or is} likely to^produce, harm.

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Iltustration An order is^{promulgatedbya publicservant} lawfully empowered to^{promulgate such order,directingthata} religious^{processionshallnot passdown a certain street. A} knowingly disobeys the^{order, and thereby causesdangerof riot.} A has committed the offence^{definedin this section."}

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"269. Negligent act likely to^{spreadinfection of disease} dangerous to life.-Whoever^{unlawfullyor negligentlydoes} any act which is, and^{whichhe knows or has reason to b€lieve to} be, likely to spread the^{infectionof any diseasedangerous to} life, shall be^punished with^{imprisonmentof either description} for a term which may extend^{to six months, or withfine,or with} both."

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'270.^{Malignantrct tikelyto spreadinfection ofdisease} dangerous to life.-Whoever^{malignantlydoesany act rvhich}

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KL.J C.t.P. No.t52 o12020,\ lnrch

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is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

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"271. Disob€dience to quarantin€ rule.-Whoever knowingly disobeys any rule made and promulgated by the Govemment for putting any vessel into a state ofquarantine, or for r€gulating the intercourse of vessels in a state of quarantine with the shorc or 'with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shalt be punished with imprisonment of eitler description for a term which may extend to six months, or with fitre, or with both."

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"272. Adulteration of food or drink intended for ssle.Whoever adulterates any article of food or drinlq so as to make such article noxious as food or drink, intending to se[[ such anicle as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be puaished with imprisonment of eihcr description for a term which may extend to six months, or with fine which rnay extend to one thousand rupees, or with both."

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"273. Sale of noxious food or drink.-Whoever sells, or offers or €xposes for sale, as food or drinh any article which has been rendered or has become noxious, or is in a state uofit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished with irnprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

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"328. Causing hurt by means of poison, etc., with intent to

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commit an offence.-Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such persoo, or with intent to commit or to facilitate the commission ofan offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of

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KI,.J CrLP. No.l52 of 2020 &^tutch

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either description for a term^{which may ext€ndto ten years, and} shall also be liable to fine."

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"336. Act endrngering life or^{personalsafety of others.-} Whoever does any act so raslrly or negligently^{as to endanger} human life or the^{personal safety} of^{others,shall be punished} with imprisonment of €ither description^{for a term which may} extend to three months, or^{wittr fine whichmay extendto two} hundred and fifty rupees, or with^both."

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"420. Ch€ating and dishonestly^{inducing deliveryof} property.-Whoever cheats and thereby^{dishonestlyinduces} the person deceived to deliver any^{propertyto any person,or to} make, alter or destroy^{the wbole or any parto[ a valuable} security, or anyhing which^{is signedorsealed, and whichis} capabte of being converted^{into a valuable security,shall be} punished with imprisonment of either^{descriptionfor a term} which may extend to seven^{years,and shallalsobe liable to} fine."

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"34. Acts done by^{several personsin furtherance of common} intention.-When a criminal^{actis done byseveral persons in} furtherance of the common^{intentionof all,eachofsuchpersons} is liable for that act^{in the samemanner as if it were doneby} him alone."

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"511. Punishment for^{sttemptingtocommit offences} punishable ryith imprisonment^{for life orother} imprisonment.-Whoever^{attempts to commitan offence} punishable by this Code with^{imprisonment for life or} imprisonment, or^{to cause such an offence to be committed,and} in such attempt does^{any act towards the commission of the} offence, shall,^{whereno expressprovision is made by this Code} for the^punishment of^{suchattempt,b€ punished with} imprisonment of any^{description providedforthe offence,for a} term which may^{extend to one-hatfof theimprisonmentfor life} or, as the case may be,^{one-halfof the longest term ofimprison-} ment provided for that^{offence;or with such fine as is provided} for the offence, or with^both."

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KL.J OL P. No. I 5 2 oI 2D0 ,l tuteh

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RELEVANT PRO/ISIO NS UNDER COTP ACT

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"5. Prohibition of advertisement of cigarettes and other

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tobacco products. {l) No person engaged in, or purported to be engaged in rhe production, supply or distribution ofcigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco producb through that medium and no person shall take part in any advortisement which directly or indirectly suggests or promotes ths use or consumption of cigarettes or any other tobacco products.

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

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(a) disptay, cause to display, or permit or authorise to display any advertisement ofcigarett€s or any oth€r tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or

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

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

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Provided that this sub-section shatl not apply in relation to

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

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(b) advertisement of cigarettes or any other tobacm product which is displayed at the entrance or inside a warehouse or a shop where cigaretles and any other tobacco products are offered for distribution or sale.

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

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agree to promote the use or consumption o[-

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(a) cigarettes or any other tobacco product; or

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

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"20. Punishment for failure to give specilied warning and tricotine and tar contents-

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(t)Any person who produces or Inanufactures cigarettes or

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tobacco products, which do not contain, either on lhe package or

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KL.J Ctl.P. No.l52 ol 2020 & tutch

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on their label, the specified warning^{andtheuicotine andtar} contents, shall in the case of^{first convictionbe punishablewith} imprisonment for a term which may €xtend^{to twoyears, or with} fine which may extend to five thousand rupees,^{or with both,} and for the second or subsequent conviction,^{withimprisonment} for a term which may extend to five^{yearsand withfine which} may extend to ten thousand rupees.

¶109

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the^{packageor on their} label, the specified waming^{and the nicotine and tarcontents} shall in the case of hrst conviction be^{punishablewith} imprisonment for a term, which may^{extendto one year, or with} fine which may extend^{to one thousand rupees, or with both,} and, for the second or^{subsequentconviction, with} imprisonment for a term^{which mayextendto two yearsand} with fine which may extend^{to three thousand rupees."}

¶110

"7. Restrictions on trade rnd^{commerce in, and production,} supply and distribution of^{cigarettesand othertobacco} products.-

¶111

(l) No person shall, directly or indirectly,^{produce' supply or} distribute 6 cigarettes or^{any othertobacco productsunless} every package of cigarettes or^{anyothertobaccoproducts} produced, supplied or distributed by him^{bearsther€on,or on its} label such specified waming^{includinga pictorial wamingas} may be^prescribed.

¶112

(2) No person shalt carry on rade or commerce^{in cigarettesor} any other tobacco^{products unless every packageof cigaretlesor} any other tobacco^{products sold, suppliedor distributedby him} bears thereon, or on its^{label, thespecified waming.}

¶113

(3) No person shall import cigarettes^{or any other tobacco} products for distribution or supply^{for a valuable consideration} or for sale in India unless^{every package of cigarettesorany} other tobacco^{products soimportedby him bears thereon,or on} its label, the specified^waming.

¶114

(4) The specified waming shatl appear^{on not lessthan one of} the largest^panels of^{thepackagein whichcigarettes or any other}

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Crl. P. No. I S 2 oI 2020 & tutch

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

¶119

(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supptied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum pemissibte limits thereof: Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by ru[es made under this Act."

¶120

RELEVA PROVISIONS UNDER F.S.S. Act:

¶121

"58.^{Penalty forcontraventionsfor whichno specificpenalty} is provided.-Whoever contravenes any provisions ofthis Act or the rules or regulations made thereunder, for th€ cootravention of which no penalty has been separately provided in this Chapter, shall be liablc to a penalty which may extend to two lakh rupees."

¶122

"59. Punishment for unsafe food.-Any person who, whether by himsetf or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumptioo which is unsafe, shall be punishable,-

¶123

(i) where such failure or contravention does not result in injury, with imprisonment for a tefin which may extend to six months and also with fine which may extend to one lakh rupees; (ii) where such failure or contravention results in a non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to tkee lakh rupees; (iii) where such failure or contravention results irl a grievous injury, with imprisonment for a tenn which may extend to six years and also with fine which may extend to five lakl rup€es; (iv) where such failure or conaavention results ir death, with imprisonm€nt for a term which shalt not be less than seven years but which may extend to imprisounent for life and also with hne which shall not be less thar ten lakh rup€es."

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KL,J Crt.P. No-152 of2020 & batch

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RELEVANT PRO VISION UNDER E.D. ACT:

¶127

"3. Penalty. Ary person disobeying any^regulation or^order made under this Act shall be deemed to^{have committedan} offence punishable under section^{188 of the IndianPenal Code} (45 of 1860 )."

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RELEVANT PROVI SION UNDERD.M.^ACT:

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"51. Punishment^{forobstruction.etc.-}

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(l) Whoever, without reasonable cause-^(l) Whoever,^without

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reasonable cause-"

¶132

(a) obstmcs any officer or employee of the Central Goverrunent or the State Govemm€nt, or^{a person authorisedby the National} Authority or Stare Authority or District^{Authorityin the} discharge ofhis functions^{under this Act; or}

¶133

(b) refuses to comply with any direction^{given by or on behalf} of the Central Govemment or^{the State Govemmentor the} National Executive Committee or^{the StateExecutive} Commiftee or the District^{AuthorityunderthisAct, shall on} conviction be punishable^{with imprisonment for a term which} may extend to one^{year or withfine,or with both, and if such} obstruction or refusat^{to complywithdirectionsresuls in loss of} lives or imminent danger^{thereof,shall on convictionbe} punishabte with imprisonment for a^{termwhichmay extend to} two^years. notes^{on clauses Clauses5l to 58 (Secs. 5l to 58)} seeks to lay down^what will^{constitute an offence in termsof} obstruction of the functions under^{the Act,falseclaim lor relief,} misappropriation of^{reliefmaterial or funds, issuance of false} waming, failure of an^{officer to perform the dutyimposedon} him under the Act without^{duepermissionor lawful excuse,or} his condvance at contravention^{of the provisions of the Act.} The clauses also^{provide forpenaltiesfortheseoffences."}

¶134

The /ls involved^{in thepresentpetitions is no morerss}

¶135

integra. A learned^{Single Judge of the HighCourtof Judicatureat} Hyderabad for the State ofTelangana^{and theStateof AndhraPradesh} in Chidurala Shyamsubder^{v. Stateof Telangana4 had an occasion} to deal with the issues^{involvedin the presentcriminalpetitions'} After referring to various^{provisionsof IPC, FSS Ac! COTPActand} also the principle laid^{downby the Apex Courtandother High Courts}

¶136

n. crl.P. No.37l I of 2018 & batch, decided on 27.08.2018

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KL,J Ctl.P. No.l52 oI2020 & bat.h

¶139

in several^judgments, the leamed Single Judge had framed the issues,

¶140

which are as under:

¶141

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

¶142

Whether the petitioners in all the p€titions 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 petitioncrs selling or offering or exposing for sale as food or drink, any anicle 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 270 aad 273 IPC.?"

¶143

After an elaborate discussion and on consideration of various aspects, the leamed Single Judge has held that the police cannot take cognizance of the offence, to investigate into and file charge sheet against the accused therein for the offence punishablc under Sections - 54 and 59 (1) of FSS Act, as they were not empowered under the said Act to [aunch the prosecution, but only Food Safety Oflicer appointed by the Govemment alone is competent to launch prosecution for those two offences. With the said findings, the leamed Single Judge has quashed the proceedings where the offences are under Sections - 54 and 59 of FSS Act initiated by the police.

¶144

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 - 3O of the FSS Act and the manufacture, sale or

¶145

¶146

KL.J C P No.l52 of 2020 & tutch

¶147

exposing for sale of tobacco etc., is govemed by the^provisions of COTP Act, but not by FSS Act and so also the^provjsions of IPC. The respondents - police are incompetent to investigate the offence punishable under Sections - 54 and 59 (l) ol the FSS Act and allegations in the charge sheet coupled with the^statements do^not disclose the commission of the^{offence punishableunder Section - 273} I of IPC since transportation of noxious^{food is not included under} Section - 273 of IPC. The act done^{by the accusedthereini.e.,} transportation of khaini and chewing^{tobacco thoughdangerous to} human life, it would not spread or^{infect or cause any disease on} account of transportation and if those^{productsareconsumedby} human being, it would certainly^{cause damageto the health.} Therefore, transportation of khaini^{or chewingtobaccoby itselfis not} an offence under Section^{- 270 of IPC.Pan Masala is nota tobacco} product to fatl within the purview of COTP Act' Therefore,^the provisions of the COTP Act have no^{application, thereby registration} of crime on the^ground of violation^{of Sections- 7 (l) (2) (3) (5) and} Section - 26 of COTP Act is^{an illegality. The leamed SingleJudge} further held that^registration ol^{cases for the offence under Section -} 20 (2) rcad with'l⁽²⁾ of COTP Act^{is illegal. With the said findings,} the leamed Single^{Judge hasquashed the crimes and calendarcases in} the said^judgment.

¶148

¶149

KLJ Crl.P. No.l52 of 2020 & tutch

¶150

I l. In Sri Jaganath Enterprises Eluru Vasadhi Tripati Rao v. The State ofAndhra Pradeshs, a leamed Single Judge of the High Court of Andhra Pradesh at Amaravti had also an occasion to deal with the said issue. After referring to the contentions of the respective parties therein, various provisions of IPC, FSS Act, COTP Act and relying on the principle laid down in Anand Ramdhani Chaurasia3, Joseph Kurian v. State of Kerala6, Sayyed Hassan Sayyed Subhanr, M/s. Pepsico India Holdings (Pvt) Ltd., v. State of U.P.7, Sanjay Anjay Stores v. Union of Indias, Boop Singh Tyagi v. Statee, State of Haryana v. Bhajan Lalr0 and Chidurata Shyamsubder', the learned Single Judge has quashed the FIRs / Calendar Cases. The learned Single Judge referring to the law laid down in Chidurala Shyamsubdera held that despite the said authoritative pronouncement of law, status quo continues. The said judgment attained finality. Even then, the policc are registering cases against accused on the very same allegations for the very same offences.

¶151

i) Refening to the provisions of Sections - 153, 188, 269,270, 271,272, 273, 284, 328, 353 of IPC, the learned Judge in Sri Jsganath Enterprisess held that the offences registered under the

¶152

said Sections are not maintainable. It further held that the provisions of the COTP Act can only be pressed into service in the limited

¶153

5; 2020 (l) AI-r (Crl.) 215 (APHC) t995⁽ t) SCJ 277 201I (2) Crimes 250 2017 SCC Onlioe Cal 16323 2002 cd.LJ . 2872

¶154

r6 .1992Supp(l)SCC335

¶155

¶156

KI.,J Crl P No 152 of2020 a batch

¶157

circumstances only where there is violation ofSections 4,5,6,7 and 10 of the COTP Act. By relerring to the principle laid down by the Apex Court in Bhajan Lalr0 and M/s. Pepsico India Holdings (Pvt) Ltd.7, the leamed Single Judge has quashed the proceedings in various crimes / calendar cases.

¶158

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

¶159

In Sayyed Hassan Sayyed Subhanl, the Apex Court while dealing with legality of the order^{passedby the Bombay High Court} in a batch of criminal writ petitions and criminal^{applications,} which were filed challenging the registration of^FIRs for^{the olfences under} Sections - 188,272,273 and 328 of IPC^{and Sections - 26 and30} of the FSS Act where there is^{an allegationof transportationand sale of} Gutka / Pan Masala etc., held that^{the judgment} of^BombayHigh Court is contrary to the^provisions of^{the Act and law laid downby it.} With the said hnding, the Apex Court^{remittedthe matterto the} Bombay High Codrt 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 BombayHigh Court.}

¶160

r'. 2020 Supreme (AP) 348

¶161

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KL.J Crl.P. No.!52 of2020 & batch

¶163

In view of the authoritative pronouncement of law in the aforesaid^judgments, as discussed above, coming to the facts of^the cases on hand, the allegations against the accused in respective cases are transportation, possession, storage, sale and purchase of banned products viz., tobacco / tambaku I gutka I khaini / zarda / pan masala etc., respectively. In Chidurala Shyamsubdera, the leamed Single observed that transportation of chewing tobacco or khaini or^pan masala do not constitute an offence punishable under Section - 270 of IPC and that manufacturing ofpan masala is not included in Section - 273 of IPC and, therefore, the same is not an offence since it is not a noxious food. The leamed Single Judge has further observed in the said^judgment which is as under:

¶164

"....The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is nol an offence under Seclion - 270 of IPC and it would fall within Section 270 of IPC."

¶165

Section - 2lZ oi IPC makes punishible an offence by a person, who adulterates any article of food or drink. Therefore, the said section would only come into play if food or drink is adulterated. There is no dehnition of 'adulteration' in IPC. The definition of 'adulterant' is found in the provisions of the FSS Act. Section - 3 (l)

¶166

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¶168

(a) o[ the FSS Act deals with 'adulterant' which means a material which could make the 'food' unsafe or^sub-standard or^mis-branded. According to Section - 272 of IPC, if^{a materialis usedto make the} food unsafe/sub-standard or mis-branded,^then only^{the offencewould} be attracted. Whereas, as^{discussedsupra, the allegationin the} present batch of cases is with regard to^{transportation,possession,} storage, sale and^purchase of^{bannedproducts viz., tobacco/ tambaku} I gttka I khaini / zarda /^{panmasala 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 leamed^{SingleJudges of the High Court of Andhra} Pradesh in Chidurala Shyamsubdera,^{Sri Jaganath Enterprisess} and V. Nageswara Raotl.

¶169

In Joseph Kurian6,^{the Hon'bteSupremeCourt heldthat} for Section - 272 IPC to^{be attracted,the following should be present.} (l) 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^{noxiousas a 'food or drink'; (3) thatthe} accused knew at the time of^{adulteration that he wouldsell the article} as food or drink and knew^{thatsuch article cannotbe 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 mixedto makethe 'food' unsafe or} drink unsafe. In^{the present case on hand, tobaccois not a food or}

¶170

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

¶173

As far as Section - 328 of IPC is concemd in the same

¶174

judgment it was held as follows:

¶175

"[0. ln order to prove offence under Section 328 the prosecution is required to prove that the substance in question was a poison or any stupe$ing, intoxicating or unwholesome drug etc, that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely 19 that he would thereby cause hurt, or with th€ intention to commit or facilitate the commission of an offence. lt is, therefore, essential for the prosecution to prove that the accused was directly responsible for administering poison etc. or causing ir to be taken by any person, through another.... . .."

¶176

Tobacco does not ht into this definition.

¶177

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 food or ddnk, 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 Enterprisess, the word 'noxious' is not defined in

¶178

¶179

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IPC or in FSS Act. As^per the dictionary meaning,^the word^'noxious' is harmful, deleterious, injurious,^{poisonous etc.} As^{stated above, the} allegation in the entire batch of present criminal petitions is with regard to transportation,^possession, storage, sale and^purchase of banned products viz.,lobacco / tambaku /^gttka I^{khairu I zardaI pan} masala etc., respectively. Therefore, according^{to this Court,the} contents ofthe complaint/charge sheet^{lacksthe ingredients of Section} - 213 of IPC.

¶181

As far as section - 188 IPC^{is concerned} ,^{as per the settled} law on the subject, before an^{accused is charged, there must be; an} order duly promulgated by^{the publicservant; the publicservantmust} have the lawful authority to^{promulgate the order;the personflouting} the same should have knowledge^{about the orderdirecting him to} abstain from the act; he must^{disobey the said orderwith the} knowledge; and such^{disobedienceof the dulypromulgated order} should cause a danger to^{the human life etc. In Boop Singh Tyagiea} Division Bench of Allahabad High^{Courtheldthat right to promulgate} the ordinance/order is also an^{issue whichis beingraised,because} under the FSS Act, the^{Commissionerof Food Safety alone has the} authority to^pass the^orders only if^{the articleof 'food' can causes} danger or is injurious^{to health.}

¶182

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KL,J Crl. P. No. t 52 oI 2020 & batch

¶184

20.In N.T.Rama Raov. TheStateofA.P.,rep.byPublic
Prosecutorr2whiledealingwiththeoffencesunderSections-188
and283ofIPC,the leamedSingleJudgeofthecombinedHigh Court
ofAndhraPradeshheldasunder:
'5)Eveniftheallegationthat thepetitioner conductedpublicmeetingsatthreeroadjunctions contrary tothepermission accordedforconducting ofapublicmeetingonlyatonespecificdplaceis true,suchadirectionunderSection30ofthe
PoliceAct,186lcouldhavebeengiven onlyby the SuperintendentortheAssistant Superintendent ofPoliceoftheDistrict but notbyanyoftheir subordinates.Ifsuchapermissionisgranted under Section30ofthePoliceAct,186landis violated, Section195(l)(a)ofCodeofCriminal Procedure mandatesthat thecomplaintinthis
regardhastobemadebythe publicservant concernedorsomeotherpersontowhomsucha
publicservantisadministrativelysubordinateto
enable anyCourt totake cognizanceofanoffence
underSection188ofCodeofCriminalProcedure. Inthe presentcase,thechargesheetwasfiled by theSub InspectorofPolice,who could nothave beenthe authoritytogmntpemssionforthe
publicmeetingandtherefore,thecomplaint/charge
sheetisinviolationofthe mandatoryprovisionof
Scction195(l)(a)ofCodeofCriminalProcedure.
6)Thatapart, theoffenceallegedtohavebeen
committedunderSection 283ofthe IndianPenal
Codebythepetitionersand othersis obviouslyin
consequencetothealleged offence underSection
188ofIndianPenalCodeandisnotan r1.CriminalP€tirionNo.5l2lof2OO9, decidedon17.09.2009

¶185

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¶187

independent of the same.^{Even otherwise, the} conduct of public mceting at three^{road junctions} or obstruction to the trafhc could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any^public way is concemed, which can^{also be covered by} Section 283 of the Indian Penal Code,^{the charge} sheet cites only one witness to^{speak about the} traffic^jam caused by the road show. But,^when the conduct of the^public meeting^{at least at one} place has been permitted and if the^gathering for that public meeting resulted^{in anyinconvenience} by way of obstructing the^{traffic,the same cannot} be considered to be with necessary^{gtilty mens rea} to construe the existence of^{an offence punishable} under Indian Penal Code. Under^the circumstances, none of the^{offences allegedcan be} said to have any reasonable^{basis and in any view,} the complaint/charge^{sheetbeingin violation of} Section 195^{(l) (a) ofCodeof CriminalProcedure,} has to fail.

¶188

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

¶189

In Thota Chandra^{Sekhar v. The State of Andhra} Pradesh, through S.H.O.,^{P.S. Eluru Rural, West Godavari} Districtrs, wherein by^{relying on variousjudgmentsincluding N.T.} Rama Raor2 and also^{the guidelineslaid downby the Apex Court in} Bhajan Lalro more^{particularly, guideline No.6, whichsays that}

¶190

Criminal Petition No.15248 of 2016, decided on 26.10.2016

¶191

¶192

KL,J Crl.P. No.l52 of2020 & latch

¶193

where there is an express legal bar engrafted in any of the provrslons of the Code or the concemed Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concemed Act, providing efficacious remedy to redress the grievance of the 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 under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C.

¶194

Y ide Notification No.50l/FSS-1/2020, dated 06.01.2020, the Commissioner ol Food Safety, Telangana Directorate of Institute of Preventive Medicine, Public Health Labs and Food (Health) Administration, Narayanguda, Hyderabad, restricted the manufacture, storage, distribution, transportation and sale of gutka / pan masala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure tobacco, khaini, kharra, scented tobacco / flavirured tobacco or by whatever name locally it is called packed in sachets / pouches / package in the entire Stage of Telangana under FSS Act, 2006. It is for one year. Vide Notification No.5051FSS- l/2021, dated 06.01.2021, the same was extended for one more year. As per the information furnished and instructions received, several writ petitions were filed challenging the said

¶195

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KL.J C .P. No.l52 of2020 & tutch

¶197

¶198

Notifications before this Court^{as well as the Hon'bleSupremeCourt.} A Division Bsnch of this Court declined^{to entertain somewrit} petitions on the ground that the Hon'ble Supreme Court^seized ofthe said issue. It is also relevant to^{note that the Hon'ble SupremeCourt} remanded back the^matter to^{this Court.Therefore, sucha notification} can only be issued for emergency situations^{and for prohibiting the} distribution and sale of any article of^{a food cannotbe lostsightof.} Therefore, in view of the law^{laid downin the above judgments} including the^judgments in Chidurala^{Shyamsubdera,Sri Jaganath} Enterprisess and V. Nageswara^{Rao". According to this Court,} Section - 188 ofIPC will^{not attract to the allegations leveledagainst} the petitioners^{herein in this batch of criminalpetitions.}

¶199

As far as Section^{- 328 of IPC is concemed, it dealswith} causing hurt by^{meansof poison, etc., with intentto commitan} offence. As^{per the said provision, whoever administersto or causes} to be taken by any^{personany poisonor any stupefying,intoxicating} or unwholesome^{drug, or other thing with intentto causehurtto such} person, or with intent to commit^{or to facilitate the commissionof an} olfence or knowing^{it to be likely that he will thereby causehurt, shall} be punished with^{imprisonmentof either descriptionfor a term which} may extend to ten^{years, and shall also be liableto fine. Therefore,} there should be^{administering poison,intoxicatingetc., withintent to} cause hurt to such^{personor with intent to commit or to facilitatethe} commission of an offence^{or knowingit to be likely that he will}

¶200

2'7

¶201

Kt..l C,l.P. No.l52 oJ 2U0 & batch

¶202

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

¶203

As far as Section - 336 of IPC is concemed, it deals with an act endangering life or personal safety of others, and as per whictr, whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fi fty rupees, or with both. In the complaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 336 of IPC.

¶204

As far as Section - 42O of IPC is concemed, it deals with Cheating and dishonestly inducing delivery of property. There is no such inducement either at tle inception or at a later stage. Thus, the co4lents ofcomplqints / chq'ge sheet lack the ingredients ol Section - 420 ofIPC.

¶205

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

¶206

¶207

Kt..t C .P. No.152 of2020 & batch

:. '1 t 1

which is, and which he knows or has^reason to^believe to^{be, likelyto} spread the infection ofany disease^{dangerous to life,shall be punished} with imprisonment of either description for^a term^{whichmayextend} to six months, or with fine, or^{with both. But, a perusal of the} contents of complaints / charge^{sheets in the present batchof cases,} such ingredients are lacking and,^{therefore, Section - 269 of IPC does} not arise in the^{present batchofcases.}

¶212

In view of the above said^{discussion,according to this} Court, transportation,^{possession, storage,saleand purchaseof} tobacco^productsare not totally^{bannedin the State of Telangana and} also in the Country.^{Therefore,it carurot be said that Sections - 269,} 270,271,272 and 273,328,336^{and 420 of IPC areattracted to the} cases in this batch.

¶213

As far as the offences^{under FSS Act is concemed,as} already discussed^{above,in ChiduralaShyamsubdera, theleamed} Single Judge following the^{guidelineslaid down by the Hon'ble} Supreme Court in Bhajan^{Lallo held that the policeareincompetent} to take cognizance of^{the offences punishable under Sections- 54 and} 59 (1) ofthe FSS Act,^{investigatinginto the offences along with other} offences under the^{provisionsof the IPC. It was further heldthat} filing charge sheet is^{a grave iltegality,as the FoodSafetyOflicer} alone is competent^{to investigate andto file charge sheetfollowingthe} Rules laid down under^{Sections- 4l and 42 of FSS Act.In the} present case, the police have^{registeredthe crimefor the offences}

¶214

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KL,J CrLP. No.l52 of2020 & totch

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under Sections - 188, 270 and 273 of IPC. Therefore, in the present batch ofcases, entertaining the complaints / filing the charge sheets by the police is contrary to the principle laid down in Chidurala Shyamsubde/.

¶217

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 comrnerce 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 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 G) of the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section - 5 of the COTP Act deals with prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products, and no person shall be a part ofany advertisement.

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

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every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Section - 4 of the COTP Act, bans smoking in public places. In addition, Section - 6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of l8^years are in an area within 100^yards of any educational institution.

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3 l. A reading of this Act, particularly^Sections - 4,^5, 6^and' 7 clearly shows that there is no^general ban or^{generalprohibitionon the} manufacture/sale of^{tobaccoproducts. 22 Whalis barredis merelythe} sale of these products to a^person, who^is below^{the age} of^{18 years} and in an area within [00^yards of an^{educationalinstitution.The} other aspects covered by Sections - 5^and 7 of the COTP^Act,deal with the advertisement and the waming, which^{is to be containedona} package, in which the tobacco product is^packed. This^{is a regulatory} mechanism only. Therefore,^according to^this Court,^{the above said} allegations of transportation,^{possession, storage,sale andpurchaseof} banned tobacco^products will not^{attract the offence under Section -7} of the COTP Act.

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As far as Section - 20⁽²⁾ of^{the COTPAct is concemed,as} stated above, the allegations^{against the petitionerin respective} complaints / charge sheets are^{that they weretransporting,possessing'} storing, selling and^purchasing the^{banned tobaccoproducts to the} customers illegally in order to^{gain wrongfulprofits. In view of the} said allegation, it is apt to^refer to^{Section - 20 (2) of the COTPAct}

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KL'J Ctl.P. No.l52 o12020 & botch

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

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and the same is as under:

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"20. Puishment for failure to give specified warning and nicotine and tsr contents.(l)... (2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified waming and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with bottr, and, for the second or subsequent conviction, with imprisonment for a tenn which may extend to two years and with fine which may extend to three thousand rupees."

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Thus, Section - 20 of COTP Act deals with punishment for

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failure to give specified waming and nicotine and tar contents. But, in the complains / 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 [abe[ and specilied waming 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 waming. Thus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 20 (2) ofCOTP Act, but also conrrary to the principle laid down in Chidurala Shyamsubdera. In view ofthe same, the offence under Section - 20 (2) of COTP Act is also liable to be quashed against the petitioners. I once again reiterate that I agree with the

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KI-,J Crl.P. No.l52 ol2010 & batch

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principle laid down by the leamed Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubder4, Sri Jaganath Enterpriscss and V, Nageswara Raoll.

¶237

For the foregoing discussion^{and the authoritativeprinciple} of law, Criminal Petition Nos. 3768, 3879,^{4046, 40'17, 4098, 4099,} 4100, 4102, 4141, 415l, 4157 , 4182,⁴¹⁸⁷ ,⁴²⁴⁷ ,^{4249, 4251, 4258,} 4262, 4277, 4405, 4415, 4542, 4615,^{4640,4681, 4727,477 5} ad 4825 of 2021 are allowed^{quashingthe proceedings againstthe} petitioners therein in the respective^{crimes mentionedtherein.Since} the proceedings in the aforesaid^{CriminalPetitionsare quashed} ,against the respective petitioners, the respective Station House Offrcers / Investigating Officers^{are hereby directedto return the} seized property / vehicles^{on proper identificationand verificationof} ownership under due^{acknowledgment.}

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Further, Criminal^{PetitionNos. 152, 153,155,162 & 5826} of 2020, -3498, 3500, 3509, 3514, 4070, 4110, 4ll9' 4140' 4178, 4D4, Arc, 4230, 4361,^{4612, 4622 and 4632 of 2021 are also} allowed^{quashingtheproceedings against the petitioners therein in the} respective Calendar^{Cases mentionedtherein-Since the proceedings} are quashed, the^{respectivepetitionersare at libertyto file appropriate} i: : iipplications^{before the concemed Magistratefor return of the seized} : property / vehicle and the Magistrate^{shallconsiderthe same in} accordance with law.

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KLJ

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C .P. No.|52 of2020 &hnch

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

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Criminal Petitions shall stand closed.

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K. LAKSHMAI. J

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