Veluri Chaitanya v. The State of Telangana

Telangana HC2 Feb 2026CRLP/1097/2026

Case brief

AI extract

What is this about?

Telangana High Court (J. Sreenivas Rao J., 02.02.2026) allows Crl.P. No. 1097 of 2026 under Section 528 BNSS and quashes FIR No.43 of 2026 dated 09.01.2026 (Uppal P.S., Rachakonda Commissionerate) against Accused Nos. 1 to 3 booked under Sections 223, 274 and 275 BNS and Sections 4 and 20(2) COTP Act, following the common order in Crl.P.No.152 of 2020 and batch dated 05.07.2021; SHO/IO directed to return seized property on proper identification and verification under due acknowledgment.

What did the court decide?

Quashing of the proceedings against the Petitioners/Accused Nos. 1 to 3 in FIR No.43 of 2026 of Uppal Police Station, Rachakonda; direction to the Station House Officer/Investigating Officer to return the seized property on proper identification and verification under due acknowledgment. ¶¶42

Veluri Chaitanya Vs The State of Telangana — Telangana HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

¶¶42

Issue for consideration

Whether the proceedings against the Petitioners/Accused Nos. 1 to 3 in FIR No.43 of 2026 dated 09.01.2026 (Uppal Police Station, Rachakonda Commissionerate), instituted for offences under Sections 223, 274 and 275 BNS and Sections 4 and 20(2) COTP Act, ought to be quashed.

¶¶16

Court's answer

Taking into consideration the submissions of the respective parties and the order passed in Crl.P.No.152 of 2020 and batch dated 05.07.2021, the Criminal Petition is allowed and the proceedings against the petitioners/Accused Nos. 1 to 3 in FIR No.43 of 2026 of Uppal Police Station, Rachakonda are quashed.

¶¶42

Ratio / Principle

The Station House Officer/Investigating Officer is directed to return the seized property on proper identification and verification under due acknowledgment.

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Detailed headnote1 paragraphs

Criminal Petition under Section 528 BNSS — quashing of FIR. The petitioners, arrayed as Accused Nos. 1 to 3, sought quashing of the proceedings in FIR No.43 of 2026 dated 09.01.2026 of Uppal Police Station, Rachakonda Commissionerate, registered for offences under Sections 223, 274 and 275 of the Bharatiya Nyaya Sanhitha, 2023 ('BNS') and Sections 4 and 20(2) of the Cigarettes and Other Tobacco Products Act, 2003 ('COTP Act'); I.A. No.2 of 2026 sought a stay of further proceedings including arrest. Learned counsel for the petitioners submitted that the matter is squarely covered by the order in Crl.P.No.152 of 2020 and batch dated 05.07.2021, and the learned Additional Public Prosecutor was heard. Taking the submissions and the said order into consideration, the Court (J. Sreenivas Rao J.) allowed the Criminal Petition, quashed the proceedings against Accused Nos. 1 to 3, and directed the Station House Officer/Investigating Officer to return the seized property on proper identification and verification under due acknowledgment. (An annexed true copy of the relied-upon common order in Crl.P.No.152 of 2020 & batch, K. Lakshman J., dated 05.07.2021, forms part of the record.)

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[³³⁰³ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAO

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MONDAY, THE SECOND DAY OF FEBRUARY TWO THOUSAND AND TWENry SIX

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PRESENT

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THE HONOURABLE SRI JUSTICE J SREENIVAS RAO

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CRIMINAL PETITION NO: 1097 OF 2026

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BETWEEN:

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Veluri Chaitanya Sio Bhasker, Aged about 3g years, Occ: Business, fuo H.No.3-9-56/tu2, Sharadhnagar, Ramanthapur, Medchal Malkajgiri District, Telangana State

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Beemidi Mahedner Reddy S/o Ram Reddy, Aged about 38 years, Occ: Private Employee, R/o H.No.3-4-1 l2lB/1, Balalinagar, Ramanthapur, Medchal I/alkajgiri Diskrct, Tetangana State

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Sherpall Sai Kishore S/o Ashok, Aged about 30 years, Occ: Business, R/o Cheppal Bazar, Kachigu(a, Hyderabad, Telangana State

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...Petitioners/Accused No.1 to 3

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ANO

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The State of Telangana, Represented by^public prosecutor, High Court of Judicature, Hyderabad

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Sri Ch. Vinay, Sub lnspector of Potice, Uppal^police Station, Rachakonda Commissionerate, Telangana State

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...Respondents

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Petition under Section 528 of the BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings against the Petitioners/ Accused No.1 to 3 in FIR No.43 of 2026 dated 09.01.2026 on the fite of Uppat^potice Station, Rachakonda Commissionerate in the interest of justice.

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I.A. NO: 2 OF 2026

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Petition under Section 528 of the BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings including arrest of Petitioners/ Accused No. l to 3 in FIR No.43 of 2026 dated 09.01.2026 on the file of Uppal Police Station, Rachakonda Commissionerate, pending disposal of the above Criminal Petition.

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This Petition coming on for hearing, upon perusing the Men orandum of Grounds of criminal Petition and upon hearing the arguments of ri i Habeeb Abubakar Alhamed, Advocate for the Petitioners and Sri M Ramach,l rdra Reddy, learned Additional Public Prosecutor on behalf of the Respondent No - and None appeared for the Respondent No_2.

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The Court made the following: ORDER

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INTHE HIGH COURT F'ORTHE STATE OF TELANGANA AT HYDERABAD

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THE HONOURABLE SRI JUS'IICE J.SREENIVAS RAO CRIMINAL PETII'ION No.l097 ot2026

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Date:02.02.2026

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Between:

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Velun Chaitanya and trvo othcrs

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.. Pctitioners

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AND

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The State ofTelangana, Represented by Pubtic Prosecutor, High Court of Judicature, Hyderabad and another

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.Respondents

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ORDER

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This Criminal Petition has been hled seeking to quash the

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proceedings in FIR No.43 of 2026 of Uppal Police Station,

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Rachakonda, wherein the petitioners were a[ayed as accused Nos.l to 3 for the oflfences punishable under Sections 223,274 and. 275 of the Bharatiya Nyaya Sanhitha, 2023 (for short 'BNS') and Sections 4 and 20(2) of the Cigarettes and Other Tobacco Products Act,2003 (for short 'COTP Act').

:: jl. -r

,.)

Heard Mr.Habeeb Abutiakar Alhamed,^{lcalred counsel for} the petitioners and Mr.M.Ramachandra^{Ii, ddy,Iearned} Additional Public Prosecutor^{lor rcspondent No.I}

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3 l-earned counsel for the^petitioners submitt^{: i that the issue}

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raised in this crirninal petition is squarely^{covcrc I bi' thc order} passcd by this Court'in Crl.l'].No. 152 of^{2020 ar.} l^{batch, dated} 05.o7 .2021.

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Leamed Additional Public Prosecutor^{has r rr opposeclthe} submissions made by the learned counsel for^{petiti tners.}

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Taking into consideration the submissions made by^the lespcctive parties and the order^passed by his Court^ir Crl.P.No.152 of 2020 and batch, dated 05.07.202 I. this crinrinal petition is allowed. The proceedings against the petitioners/accused Nos.l to 3 in FIR No.43 <tf'.026 ol Uppal Police Station, Rachakonda, are hereby^quasht't . Further the Station House Officer/Investigating Officer is hclc ty directed to return the seized property on proper idel t fication and verification under due acknowledgment.

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'-rred

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-^: ;^{.'"..+=.?.5y*,:.,,+._1.}

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r--)

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Pending miscellaneous applications, if any, shall stand

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closed

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Sd/- AHMED ABDULLAH KHAN ASSISTANT REGISTRAR

//TRUE COPY//

ECTION OFFICER

The Vl Additional Metropotitan Magistrate, Med l[/ ikalrgiri Drstrict, Uppal at LB Nagar.

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The Station House Officer, Uppal pottce Station, Rachakooda Diskrct

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Trvo CCs to the Public p:osecutor, High Court of Telangana at Hyderabad lourl

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One CC to Sri Habeeb Abubakar Alhamed, Advocate [OpUC]

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Two CD Copies

GNK/BA

HIGH COURT

DATED: 0210212026

ORDER

CRLP.No.1097 of 2026

( o pllr I S e
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20 tB ?0n z ,ril
'3 ..{Q *
,IC

¶64

ALLOWING THE CRIMINAL PETITION

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,da
q
WYt-

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IN THE HIGH COURT FOR THE STATE OF TELANGANA

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AT: HYDERABAD

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CORAM:

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THE HON'BLE SRI JUSTICE K. LAKSHMAN

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CRI MINAL PETITION No.152 OF 2020 & Batch

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7o Delivcred on: 05-07-2021

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Betwcen in Crl.P. No.152 of 2O20

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Mr. Mohd. Jameel Ahmcd Petitioner Vs.

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S Thc State ofTelangana, rep.by Public^Proseculor Iligh Court ofTelangana. Hyderabad &^another

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Rcspondents

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I For respective Petitioners Mr. M.A.K. Mukheed Mr. Cajanand Chakravanhy Mr. K. Surender Mr. Praveen Kumar Veerjala. Ms. P. Radhika Mr. Srinivas Reddy Balakisti Ms. C. Sunitha Kumari Mr. Kondadi Ajay Kumar Mr. S.M. Subhan Ms. N. Afthi Mr. Y. Bala Murali Mr. Boggula Raju Mr. S. Chandrasekhar Mr. V, Yadukrishna Sainath Respective leamed counsel ^^{For Respondents} Learned Public Prosecutor

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^^{For Respondents}

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< Gist

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flead Note

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? Cases Refened

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t. 20lE AIR^(sc) 5348

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2016 Cri.L.l.240l

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l. 2019 SCC Online Bom lE57

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4 Crl.P. No 3731 of20l8 & batch^{decided on 2?.082018}

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2020(l) AIT(Crl)215^(APHC)

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1995 (l) SCJ 277

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2011⁽²⁾ Crimes 250

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8 2017 SCC Online Cal¹⁶³²³

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2002 Crl.L.L^28'12

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1992 Supp^(l) SCC³³⁵

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I L 2020 Supreme^(AP)348

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Crrminal Pebtion N0.5323 of2009,^{decidedon!7.09 2009}

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t J. Crmmd Petition No^{I 5248} of^{20 16, decrded on 26 I 0.2016}

¶94

¶95

1.,J

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Ctl.P. No-152 of202t ,\ t d.h

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HON'BLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION Nos.l52, 153. 155. 162 & 5825 0F 2020 AND l r& 3500. 3509, 3514. 3768. t879, 4046. 4070. 4077. 4098. 4099. 4100, 4 t 02, 1_^q, 4119. 4140, 414t. 4t5t.115'7. 1118. 4t82, 4187. 4194. 4216. 4230. 4247. !:1!, 4251, 4258. 4262, 4211 .7361- 1405, 4415, 4542, 46t2, 4615.4622,4632.11 rq, .168I 1727 1775 & 4825 OF 2021

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COMMON ORDER

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Al[ the abovc Criminal Petitions are filed to quash t.re proceedings against the petitioners - accuscd in respective Cri:r es / Calendar Cases.^.l-he details of relevant Crimes / Calcr t ar Cases, of'fences allegcd. nature of olfenccs etc., are mentionc,l irl

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the lollowing labular lirmr:

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SI No	(lrlI) No	CllnreNo	\ccused 'unrbcr	Offences allegedly conmittcd	Nalue ol.rl⁽	rce
0l	3768i2t	217120ol IrS Manoharal)ad		272.173tPC& 20 \2)tlw^'l(2)of COTPA	l'ransponatiorr,f tobrc.(	\mber
02	3819/2t	33/21ol l'S Kadarn	sole accused	270&273IPC	Saleofbanrtd⁽ uJt	)acco
0l	{0.16II	78/21ot l'S(t) Adilabr,l	{t&2		SaleofgutkrLtr ille dt	acco
04	4417nt	Ea-s 2l/21 ol PS	sole accuscd	do	PosscssiourlI /tobaccoin.rLr	tka hop^'
05	J098/21	185/21ol- I'S⁽l) Nrrmal	Al^(ol	21Q,17ttPC & 20(2)ofCOTPA	Transpo.ll(r,r rtcd g	oI
06	1099/21	Noi6,21,)ll)S Kourala	accused	270&213tPC	Possessioloi_ti rnlhrI	acco )Use
07	1r00/21	No.38'11otl'S Easgoa]l	accused	210&273tPC	Possessionofl,r gutka&olher() iternsrn rl	lned ]L
08	4t02t2t	455/21oll'S Kukarpallv	sole accused	336.273&188 IPC&59(i)of IJSSA	Transporlaliorlir ofprohibiled l,,t rodurt!	IJa.le
09	1r{t/21	45/21ol PS Chiragp.t-llv	Aito3	270&273 IPC& 20(2)r/,?(2)of COTPA	Iransporlali(r tobac4opr.rcu	)i L.
l0	4t5t/21	198/21olPS Chouluppat	sole acaused	272&273LPC& 20⁽²⁾ofCOTPA	Storageoflola cGflrr;i	co e
ll	4ts7t2t	134/21ofPS Chityal^(Nl-G)	Alto4	272.213&.328 rPce2'00)&1 (3)ofCOTPA	Purchasean(l:a prohibifedlcfa roduc	)of co
t2	4182t21	nadh alem '14/21 otPS	A1&2	270&213lPC	Tratrsportalion to ori ul!	rurea
l3	4 t87t2t	202,21of I'S(l) Manchcnal	sole accused	'do	Possessionolbi tobacco rt,dr	ned _ , s

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¶104

KI.,J

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C .P. No 152 of 2020 & batch

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l4	424'7121	5ll21ofPSII Town Adilabad	sole	-do-	Possessionof baffred gutkaproducts
t5	4249t21	l0l/21ofPSI Town Adilabad	At&2	do-	Saleofgu&aard tobaccoDroducts
t6	425)/21	90/21ofPSI To!\rAdrlabad	sole		About totranspon noxiousguLkaand lobacmproducts
t7	42-i8,'21	9l/21 olPSI lo!\TAdrlabad	sole accuscd	-do	Saleofbanned^gutkaand lobacm^products l
l8	1262/)t	I07/21ofPSl lr)\rnAdrlabad	A1&l	'd(r	-raffportatronolgulka a-ndtobacco^products
I9	42'71i2t	162/21oIPS Abdullapurmct	Altol	188,217,273& 328rPC	Saleofbannedlobacco (tambaliu) productsin
20	4405/2t	da -fo!nNal 202121ot PSt	sole accuscd	t88.211&273 IPC	I rarsportalionof cts
zt	I 14 I 5t2	')Nalgonda 212121ofI'SII	sole accused	do	Possessionofbaltned gutka/tobaccoproducts
				188 269270
12.	4-5.12t21	I87i21ofPStll ir-l tKotla8udem	Al&2	, ., 27ir^f1,1IPC& IoftiDA&5l (b) oft),1.A	PossessionofIobaccro productsinkrranashop
2i	46t5t2l	ll5,/21olPS NrrmalTo*n	Al&2	210&211t'C	Possessionof^prchrhrtcd tobacco roducts for salc
)1	4640/21	89/20ot PS i!{arnada	A1	-do-r/rl4IPC	tobacco/gu1k-q[9{c<br>Transportationofbanncd
2-i	1681/2t	186/21ofPS I'eddavoora	A2	128rA!5ll,272 &273tPC	._ Posscssionofbanncd gutka&tobacco productsinkirana shop
16	4',72tt2t	164/21ofPS Adrbatla	A2	270,212&273 IPC&20(2)oI CO-I'PA	Transponatronof cigmeneorothcr lobacco productswithoutvalid license
27	4',t15/21	T Nal da 234/21 ofPSI	Alto4	328,212,213& I88IPC	Saleofgu&a&khaini
28	4825i21	!!E.-eri ^rt) 215/21ofPS	At &2	328,270&273 r/.'5lIIPC&20 (2)ofCOTPA	Iiansportalionolbanncd gutka

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			CA	LENDAR	CASES
		l5l5/19of		210,213&
29	t52t20	I.AJMF('.	A2	r88,420IPC &58ofFSSA	Transponadonofbanned^zarda products
t0	153/20	i xvllAa\t\l Iuva l 2124/19 of	A2	I'SSA 2006 272&213 IPC&59of	Saleofzardaillegall,
		l5l8/19of		420, 270&
lt	$5r20	I-AJMFC. al	A3	273 IPC&58 ofFSSA	Transportalionofbannedzarda
32	t62120	4137llEof XIAMM, Scc.bad	A2	2'72,273,336 &420tPC& 20 (2)of COTPA	Saleofprohibited^gutkaand chewingtobaccoproducs
3l	5426/20	special Magrstrate ofIIClass. Jagtis.l	I & 2	t88,270& 2'73LPC	Trsnsporlation of Amber^gutka pockeLs
34	3498nt	216/20of JFCM, I)cvarkonda	Al&2	420&213 IPC	Saleofbamedtobaccoand^gut€ products
35	3500/21	963/19of JTCM, Mrryalguda	Alto4	420&273 rPC&20⁽ⁱⁱ⁾ ofcorP^,2ooS	Taansportationoftobaccoand gutkaproducts

¶108

¶109

Crl.P No.l52 of20)A r, t ih

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l6	1509/2r	452120ot xxv\lN,tc.	n I &2	188, 270 & 2't3tPC,20 (2)ofCOTPA, 3ofDDA& s1 (b)ol' I)MA	StoragcofbannedgutlanI otrer tobaccoproductsillegrlLo'salr --1
l.l	l5l.l,2I	6i2It)o,' xx'\1\lc.	Alro8	t88.t7n.t7r &^,120IPC& 20⁽²⁾ COTP.<br>ol	SupFl) ofgrLtkaandotr
l8	4014,71	547t21o[ PJ\fTC. Gatrvel	nt&l	2-72&)1) IPC&20 (2) r/u7(1,of COTP.\|TransponatioflofAniLc'rh.rcco
39	4ll0/2t	509/20of SplPCR Mobilc Coun-cunr- JMI,( Adrlahad		270&271 IPC&20(2) r/w7(2)of c()lt)A	TransForlationofpaJrinr\a and banned gurki,
40	4t19/21	512'10ol- SplI'(R Mobile Councunr- JN4r(. Adrlahid	AlloI -	r--' 270,11t,212 &273r/$'34 IPC liccIolEDr\|'fransponationol-cotlor..l.iand banncdgukr
4l	4t40t21	STC' Nol0':Iof IV1\1V- cum-l' AJC]. LBNi	AI&r	21)&213 ltPC&sec20 (t),20r2)or cotPA	Transporldtion oIbann,1] t, rircco and gutka I
42	4t7812t	.asr 810,2I of IAJMT( Khammaln	solc	270&)13 tPC&20(lj ofCOPTA	Purchaseand saleoI harr]putka
43	4194t21	6161,/lIol XVIIfai\TM, Nampall)			88,272 & 2',73lr'C&2A (2)&5of coA
44	47t612t	l29tl/lIof PIMTT, Khammam		270&271 IPC&20(2) ofCOIPA	'l'ranspo(allonofAml,.Irrka
45	4230i2t	829t71of PJN4F'C. Khanlnanr	At&2	do	Transponationoftuk/ail masala
46	4)6\i2)	108/21of AJMFC. Asifabad	AI&]	2'70&.27]tPC	Possess,onoftobaccoirr).rcts illeBallyforsali
41	46tzDl	531/20of AJMI:C Nimul	Sole	-do-	Purchaseandsa.icofprolrilcd gukapockers
48.	4622/21	622/19ol A]MF(., Nirmd	At&2	-do	Possessionofgutkapac[csrtbus stEndforsalcillcgal!
49	4632t21	413/20ol AJMFC, Nirmd		-do-r/w34 rPC&20(2) ofCOTPA	Transportatiolofbarfleioacco Producls

¶111

Heard Mr. M.A.K. Mukheed, Mr. Gaianand Chakravarlir. ,

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Mr. K. Surender, Mr. Praveen Kumar Veerjala. Ms. P. Radhil.r ,

¶113

¶114

KL,J Crl.P. No.l52 ol2020 & batch

¶115

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 Ieamed Public Prosecutor appearing on behalf of respondents - State.

¶116

The question involved in all the above matters is one and the same and, thercfore, the sarne are disposed of by way olthis common order.

¶117

The main allegations against the petitioners - accused are that they .rere transporting, possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku / gutka / khaiai I zarda I pan masala respectively. The olfences alleged against the petitioners are under Sections - 188, 270, 269,271,272,273,328, 336 &. 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short'lPC'); Sections - 20 (l), 20⁽²⁾ and 5 read with 7(2) and 7⁽³⁾ of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act,2003^(for short'COTP Act'); Sections^- 58 and 59 of the Food Safety and Standards Act, 2006^(for short'FSS Act'); Section - 3 of the Epidemic Diseases Act, 1897^(for shott 'ED Act') and Section - 51^(b) of the Disaster Management Act, 2005^(for short DS Act) respect ively.

¶118

¶119

f,J Crl-P- No-152 of202( ,t i ttch

¶120

The respective learned counsel appearing on behalf o1 he petitioners in the above criminal petitions would submit that he contents of complaint / charge shcet lacks the ingredients t,f he offbnces alleged against the accused. For the offences under he provisions of irSS Act, only Food Safetl, Officer is having po\r r 1tl initiate criminal proceedings against accused and the police atc ot having any power to register a case for the offences under re provisions ofFSS Act. There is no inducement by the petitionerr r o, therefore, offence under Section - 420 of IPC does not a i c. According to them, the contents of complaint I charge sheet are t ;o lacking the ingredients of the offences under Sections - 269, 270. .. 1 , 272,273,328 and 336 oflPC.

¶121

i) According to them, there is no violation of Sections - 20 ( ), 20 (2) and 5 read with 7 (2) and 7 (3) ol the COTP Act. I re Investigating Officers / Complainants without lollowing the procec I rc laid down under the Code ol Criminal Procedure, 1973 (fbr sr rt 'Cr.P.C.'), have registered the cases for the offence under Secrir,r - 188 of IPC and laid charge sheet against the accused. Neces:l v ingredients to attract the provisions of Section - 3 ofthe ED Act r d Section - 5l (b) of the DM Act are lacking in the complaint / ch:r ;e sheet.

¶122

iD With the above said submissions, the respective lear r d counsel sought to quash the proceedings in the aforesaid crinrts r' calendar cases.

¶123

¶124

KL,J CrI.P. No-152 ol2020 & bdt.h

¶125

On the other hand, leamed Public Prosecutor^{referring to the} principle laid down in the State of Maharashtra v. Sayyed Hassan Sayyed Subhanl by the Hon'ble Supreme Court and in^Ganesh Pandurang Jadhao v. The Statc of Maharashtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtras by^theBombay High Court would subm it that police are having^power to^register cases under various provisions o[^{IPC, COTPAct, ED ActandDM} Act. There is no irregularity in^{registering crimes, seizing material} including the vehicles and laying charge^{sheet against respective} accused in the aforesaid crimes / calendar cases. According^{to him,} the accused were lransporting,^{posscssing,storing, sellingand} purchasing the banned products lrz..^tobacco /^tambaku /^gutkaI khaini / zarda / pan masala respectively.^{Accordingto him, the} accused have to face either investigation or^{trialandprove their} innocence, and instead of doing so. they^{havefiled the present} criminal petitions under Section - 482 of^{Cr.P.C.which cannotbe} considered at this stage.

¶126

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

¶127

In view of the above rival submissions, it is^appositeto extract the relevant^provisions of^{IPC, COTPAct, FSS Act, ED Act} and DM Act, which are as under:

¶128

2018 ArR (SC) 5148

¶129

2016 CtL L.I . 2101

¶130

2019 SCC Ooline Bom 1857

¶131

¶132

Crl-P- No-152 oJ 2A2t),:

¶133

RELEVANT PRO\TSIONS UNDER IPC

¶134

"188.^{Disobedience to order duly promulgated by public} servant. Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain ftom a certain act- or to take certain order with certain property in his possession or under his management. disobeys such direction, shail, il such disobedience causes or tends to cause obstruction, annoyance or injuq. or risk of obstruction. annoyarce or injuy. to any person Iawfully employed. be punished with simple imprisonment for a term which may extend to one month or with hne which may extend to two hundred rupees, or wirh both; and if such disobedience causes or tends to causc danger to human life, h€alth or safery, or causes or tends to cause a riot or affray, shall be punished with imprisonmenl of either description for a rerm which may extend to six months, or with hne which may extend to one lhousand rupees. or with both.

¶135

Explanation.-It is not necessary that the offender should iotend to produce harm, or contemplate his disobedience as Iikely to produce harm. It is sufficient that he knows ofthe order rvhich he disobeys, and that his disobedience produces, or is likely to produce, harm.

¶136

lllustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain steet. A knowingly disobeys the order, and thereby causes dangcr olriot. A has committed the offence defned in this section."

¶137

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

¶138

"270.^{Malignant act likely to spread infectionof disease} dangerous to life.-Whoever malignantly does any act which

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Crl.P. No.152 ol2o2o & bat.h

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is, and which he knows^{or has reason to bclievc to be,likelyto} spread the infection of any disease^{dangerousto life,shallbe} punished with imprisonment of either description for a term which may extend to t\vo vears! or^{u ith fine.} or^{tvith both."}

¶143

"271. Disobedience to^quarantine rulc.^{\lhoever knowingly} disobeys any rule made and^promuigated by^{theCovernmentlor} putting any vessel into a state ofquarantine, or for regulating the intercourse ofvessels in a state ofquarantrne^{"ith theshore or} with other vcssels, or for regulating^{theintcrcoursebctween} places where an infectious disease prevails and other^places, shatt be punished with imprisonffent^{of eitherdescription fora} term which may extend to six^{months- or \ith fine. orrvith} both."

¶144

"272. Adulteration of food or drink^{intcnded for salc.} Whoever adulterates an) article of^{lbodor drinl.so as to make} such article noxious as^{loodor drink,intcndingto scll such} article as food or drink, or knowing^{it to bclikely that the same} will be sold as food or drink. shall be^{punished with} imprisonment of either^{description fora term which mayextend} to six months. or with fine which maY extend^{to onethousand} rupees, or with both."

¶145

"273. Sale of noxious food or drink.^{Whoeversells, oroft'ers} or exposes for sale, as^food or^{drink. any articlewhich has been} rendered or has become noxious,^{or is in a stateunfit forfood or} drink, knowing or having^{reason to beLeve that thesame is nox-} ious as food or drink, shall be^{punished withimPrisonment of} either description for^{a termwhich may extendto six months,or} with fine which may extend to one^{lhousalld rupees, or with} both."

¶146

"328. Causing hurt^{bymeansof poison, etc.,with intentto} commit 8n offence.-Whoever^{administers to or causes to be} taken by any^person any^{poisonor any stupefying, intoxicating} or unwholesome drug,^or other^{thingwith intentto cause hurtto} such person, or with inteot to^{commitor to facilitatcthe} commission of an offence or knowing^{it to be likely thathe will} thereby cause hurt,^{shallbe punishedwithimprisonmentof}

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Ctt-P- No.l52 ol 2020 .

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either description for a term which may extend to ten yean, and shall also be liable to fine."

¶151

"336. Act endangering life or personal safety of othcrs. Whoever does any act so mshly or negllgently as to endanger human life or the personal safery of others, shall be punished with irnprisorunent of either description for a term which may extend to three months, or with fine which may e\tend to two hundrcd and filq rupees, or with both."

¶152

"420. Cheating and dishonestly inducing delivery of property. Whoever cheats and thereby dishonestly induces the person deceived to deliver any propedy to any person. or to make. alter or destroy the whole or any part of a valuable security, or anythiag which is signed or sealed, and which is capable of being conyerted into a valuable security. shall be prmished with imprisonment of either dcscription for a telm which nray extend to seven years, and shall also be liable to fine."

¶153

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

¶154

"51l. Punishmeot for attempting to commit offences punishable with imprisonment for life or other imprisonment. Whoever attempts to commit an 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, where no expres provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-hatfofthe imprisonment for life or, as the case may be, one-halfof the longest term of imprisonment provided for that offence, or with such hne as is provided for the off'ence, or with both."

¶155

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RELEVANT PROVISIONS UNDER COTP ACT

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"5. Prohibition of advertisemetrt of cigarettes and other

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tobacco products.{l) No person engaged ir; or purported to be engaged in the production, suppiy or distribution of cigarettes or any other tobacco products shall advertise and no person having conhol over a medium shall cause to be advertised cigarettes or any other tobacco products through that mcdium and no pemon shall take part in any advertisement which dkectly or indfuectly suggests or promotes the use or consumption ofcigarettes or any other tobacco products.

¶160

(2) No pe6on, for any direct or indirect pecuniary benefit, shatt-

¶161

(a) display, cause to display, or pennit or authorise to display any adyertisemgnt ofcigarettes or any other tobacco product, or (b) sell or cause to sell, or permit or authorise to sell a filln or video tape containing advertisement of cigarettes or any other tobacco product; or

¶162

(c) distribute, cause to distribute. or permit or authorise to distribute to the public any leaflet. hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or

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(d) erect, exhibit, fix 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 mamer whatsoever in any place any advertisement ofcigarettes or any olher tobacco product:

¶164

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

¶165

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

¶166

O)^{advertisementof cigarettesor any othertobaccoproduct} which is disptayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco^products are offered for distribution or sale-

¶167

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

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agree to promote the use or consumptiofl of-

¶169

(a) cigarettes or any other tobacco product; or

¶170

(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship,^{gift,prize or} scholarship giveo or agreed to be^givefl by^{arother person."}

¶171

"20. Punishment for failure to^{give specified tvarningand} nicotine and tar contents.

¶172

(l)Any penon who produces or manufactures cigarettes or

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

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on their label, the specified waming and Lhe nicotine and tar contenls, shall in the case of fimt conviction be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the socond or subsequent conviction. rvith imprisonment lor a lcrm which may extend to five years and with hne rvhich may extend to ten thousand rupees.

¶178

(2) Any person who sells or distributes cigarettes or lobacco products which do not contain either on the package or on their label, the specified waming and the nicotine afld 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 whrch may exteod to one thousand rupees, or with both, and, lbr the second or subsequent convictio[, with imprisonmenr for a term which may extend to two years and with fine which may extend to three thousand rupees."

¶179

"7. Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products.-

¶180

(l) No person shall, directly or indirectly, produce, supply or distdbute 6 cigarettes or any other tobacco produc8 unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or otr its Iabel such specified waming including a piciorial waming as may be prescribed.

¶181

(2) No person shall carry on tmde or commerce in cigarettes or any other tobacco products unless every package ofcigaretfes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified waming.

¶182

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

¶183

(4) The specified waming shall appear on not less than one of the largest panels of the package in which cigarettes or any other

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Ctt-P- No- 152 of2020 & batch

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

¶188

(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, supplied or distributed by him irdicates thcreon, or on its label. the nicotine aDd tar contents on each cigarctte or as the case may be on other tobacco prcducts along with the maximum permissible limits thereof: Provided that the nicotine ard tar contents shall not exceed the ma\imum permissibte quantity thereof as may be prescribed by rules made under this Act."

¶189

RELEVANT PROVISIONS UNDER F.S.S. Act

¶190

"58.^{Penalty for contrayentions for whichno specific penalty} is provided.-Whoever confavenes anv provisions of this Act or the rules or regulations made thereunder, for the contravention of which no penalty has been sepamtely^provided in this Chapter, shall be liable to a^{penalry u'hich} may extend to^h{o lakll rupees."

¶191

"59. Punishment for^{unsafe food.-Anypersonwho,whether} by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports^arty article of food for human consumption which is unsafe, shall be punishable,-

¶192

(i) where such failure or contraven[ion does not result in injury, with imprisonment for a term which may extend to six months and also with flne which may extend to one lakh rupees;

¶193

(ii) where such failure or contravention results in a non-grievous injury, with imprisonment for a term^which may^{extendto one} year and also with fine which may extend to three lakh rupees; (iii) where such failure or contraventiol results in a grievous injury, with imprisonmdnt for a telm^which may^{extendto six} years and also with fine which may extend to five lakh rupees; (iv) where such failure or conftavention results in death, with imprisonment for a term which shall^{not be less than seven} years but which may extend to imprisonment for life and also with fine which shall not be less than ten^{lakh rupces."}

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Ctl.P. No.l52 of202(t t t llch

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RELEVANT PROVISION UNDER E.D. ACT:

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"3. Penalty. Any pcrson disobeying any regulation or order made under this Act shall be deemed to have committed an offence pLrnishable under section 188 ofthe lndian Penal Code (4s of 1860 )."

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RELEVANT PROVISION UNDER D.M. ACT:

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"51. Punishment for obstrtrction, etc.-

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(1) Whocver, witltout reasonable cause- (l) Whoever, without

¶202

reasonable cause--"

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(a) obstructs any officer or employee of the Central Govemment or the Slate Govemmcnq or a person authorised by the National Authoriry or State Authority or Diskict Authority in the dischargc of his liLnctions under this Act; or

¶204

(b) refuses to comph with any direction given by or on behalf of the Central Govemment or the State Govemment or the National Lxecutive Committee or the State Executive Comrnittec or the District Authority utrder this Act, shall on corviction be punishable with imprisonment for a term which may extend to one year or^q.ith fine, or with both and if such obstruction or refirsal to comply with dtections results in loss of lives or imminelt danger thereof, shall on conviction be punishable with imprisorunent for a term which may extend to hvo years. notes on clauses Clauses 5l to 58 (Secs.5l to 58) seeks to lay down what will constitute an offence in terms of obstructiorl of the functions under the Act, false claim for relief, misappropriation of relief material or funG, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contrave[tion of the provisions of the Act. 'l'he clauses also provide for penalties for these offences."

¶205

The /rs involved in the present petitions is no morc r^,.r

¶206

integra. A leamed Single Judge of the High Court of Judicaturc rt Hyderabad for the State ofTelangana and the State of Andhra Prad: h in Chidurala Shyamsubder v. State of Telan ga.na4 had an occasi( n to deal with the issues involved in the present criminal petiticr ]. After referring to various provisions of IPC, FSS Act, COTP Act ir I also the principle laid down by the Apex Court and other High Corr s

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o. Crl P. No.3z3 I of 20 l8 & ba(ch, decrdcd on 27 0E 2018

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KL,J C P. No 1i2 of 202A & batch

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

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which are as under:

¶212

"1) Wlether thc respondent/ Sub-Inspector of Police, is competent to investigate into the offence punishable under Sections 54 and 59( l) ol FSS Aat?

¶213

Whether the petitioners in all the petitions are found commihing 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 articlc which has been rendered or has become noxious or is in a state unht for food or drink or reason lo believe that the same is noxious as food or drink? lf so, are they liable to be proceeded for the offence punishable ulder Secrions 270 and 273 IPC ?"

¶214

9- After an elaborate discussion and on consideration of various aspects, the learned Single Judge has held that the police cannot take cognizance of the offence, to investigate into and file charge sheet against the accused therein for the offence punishable under Sections - 54 and 59 (1) of FSS Act, as they were not empowered under the said Act to launch the^prosecution, but only Food Safety Officer 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.

¶215

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 olthe FSS Act and the manufacture, sale or

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C.l P. Na.t52 oJ202t) . :h

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exposing lor sale of tobacco etc., is govemed by the provisiors of COTP Act, but not by FSS Act and so also the provisions of IPC.^' he respondents - policc are incompetent to investigate the off: ce punishable undcr Sections - 54 and 59 (l) of the F'SS Act rnd allegations in the charge sheet coupled with the statements do rot disclose the commission of the offence punishable under Section - I 73 of IPC since transportation of noxious food is not included ur er Section - 27i of IPC.^'l'he act done by the accused thereirr i :., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any diseasr. tn account of transportalion and if those products are consumec )y human being. it rvould ceftainly cause damage to the he,r. h. Therefore, transportation ofkhaini or chewing tobacco by itself is r ot an offence under Section - 270 of IPC. Pan Masala is not a tobi.< :o product to fall within the purvierv of CO'fP Act. Therefore, ,re provisions ol the COTI' Act have no application, thereby registralr rn of crime on the ground of violation of Sections - 7 (l) (Z) (3) (5) a rd Section - 26 ol COTP Act is an illegality. The leamed Single Juc 1e further held that registration of cases for the offence under Sectior - 20⁽²⁾ read with 7 (2) of COTP Act is illegal. With the said findirr s, the learned Single Judge has quashed the crimes and calendar cases Ln the said^judgment.

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KL.J c .P No:152 ol2020 & bdtch

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I l. In Sri Jaganath Enterprises Eluru Vasadhi^TripatiRao

¶223

v. The State ofAndhra Pradeshs, a leamed Singte Judge of the High Court of Andhra Pradesh at Amara\ti had also an occasion to deal with the said issue. After referring to the contentions ofthe respective parties therein,^.various provisions of IPC, FSS Act, COTP Act and relying on the principle laid down in Anand Ramdhani Chaurasia3, Joseph Kurian v. State of Kerala6, Sayyed Hassan Sayyed Subhanr, M/s. Pepsico India Holdings^(Pvt) Ltd., v. State of U.P.7, Sanjay Anjay Storcs v. Union of India8, Boop Singh Tyagi^v. Statee. State of Haryana v. Bhajan Lal10 and Chidurata Shyamsubdera, the learned Single Judge has^quashed the FIRs / Calendar Cases. The leamed 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 police are registering cases against accused on the very same atlegations for the very^same offences.

¶224

i) Rcfening to the provisions of Sections -^{153, 188, 269,270,} 271, 2'72, 273, 284, 328,353 of IPC, the leamed Judge in Sri Jaganath Enterprises" held that the offences^{registered under the} said Sections are not maintainable. It^{furtherheld that the provisions} of the COTP Act can only be^pressed into^service in the limited

¶225

2020 (t) Al.r (Crl ) 215^(APHC) 1995⁽¹⁾ SCJ 277

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2011⁽²⁾ Crunes 250

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2017 SCC Online Ca] 16323 2002 Ctl l-.t . 28 72 ri 1992 Supp (l) SCC 315

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circumstances only where there is violation ofSectiors - 4,5,6,7 and 10 of the COTP Act. By referring to the principLe rld dou,n by the Apex Court in Bhajan Lal10 and M/s. Pepsico In lia Holdings (Pvt) Ltd.r. the lcarned Single Judge has quashed he proceedings in various crimes / calendar cases.

¶231

Another Ieamed Single Judge of the High Court of AnC rra Pradesh at Amaravati in V. Nageswara Rao v. State of Anrll ra Pradeshrr had also an occasion to deal with the said issue and apr ed with thc principle l3ifl dsurn in Chidurata Shyamsubdera.

¶232

In Salyed Hassan Sayyed Subhanr, the Apex Court r,1 ile dealing with lcgality of the order passed by the Bombay High Cour in a batch of criminal u'rit petitions and criminal applications, wr ch were filed challenging the registration of FIRs for the offences u I er Sections - 188,272,273 and 328 of IPC and Sections - 26 and 30 of the FSS Act where there is an allegation of transportation and sale of Gutka / Pan Masala etc., held that the^judgment of Bombay I I gh Court is contrary to the provisions olthe Act and law laid down by it. With the said finding. the Apex Court remitted the matter to te Bombay High Courl for fresh consideration on the issue that whetl er the aforesaid offences are made out in the FIRs, which are suti ct matter of the cases pending before the Bombay High Court.

¶233

't.^{2020 Supreme (AP)148}

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KL,J Crl.?. No.I52 of²⁰²⁴ & bakh

¶236

In view of the authoritative^{pronouncement} of law in^the aforesaid^judgmcnts, as discussed above, coming to the facts of^the cases on hand, thc allegations against the accused in respective^cases are transportation.^possession. storage,^sale and^purchase of^banned products viz., tobacco / tambaku / gutka lkhaini / zarda /^pan masala etc., respectively. In Chidurala Shyamsubdera,^{the learned Single} observed that transportation of chewing tobacco or khaini^{or pan} rrasala do not constitute an offence^{punishable under Section- 270} of IPC and that manulacturing ofpan^masalais not^{included in Section-} 273 of IPC and, therefore, the same^{is not an offencesince it is not a} noxious lbod.^'[he leamed Single^{Judge hasfurtherobservedin the} said^judgmcnt which is as under:

¶237

"....The act done by the^{petitionersi.e.,} transponation of khaini and chewing tobacco though dangerous to human life, it would^not spread or inlect or cause any disease on account of transpo(ation 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 notan} offence under Section - 270 of IPC and it^would fall within Section 270 of IPC."

¶238

Section - 272 of IPC^{makes punishablean offencebya} person, who adulterates any article of food or drink.^{Therefore, the} said section would onty^{comeinto play if food or drink is adulterated.} There is no deflnition of 'adulteration'^{in IPC.The definition of} 'adulterant'^{is foundin the provisionsofthe FSS Act. Section- 3 (l)}

¶239

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J.J C.LP. No.l52 o1202(, I u),

¶241

(a) of the FSS Act deals with 'adulterant' which means a mat: ial which could make the 'food' unsafe or sub-standard or mis-branJ xl. According to Section - 272 ol IPC, if a matcrial is used to makr he food unsafe/sub-standzrrd or mis-brandcd, then only the offence rv r ld be attracted. Whereas. as discussed supra. the allegation in he present batch of cases is rvith regard to transportation, posses:i r. storage. sale and purchase of banned products^y2., tobacco / tanrl z <u / gutka / khaini / zarda r' pan masaia ctc., respectively. Therclc c. according to this Court. thc said allegation does not fall rvithin r re ambit of Section - 272 of ll'C.^'fherelore, I agree with the princil Ic Iaid down by the learned Single Judges of the High Court of Arrr I r-l Pradesh in Chidurala Shy''amsubderr, Sri Jaganath Enterprir,si and V. Nagesrva ra Rao'1.

¶242

ln Joseph Kurian6, the Ilon'ble Supreme Court held t u for Section - 2'12 IPC to bc attracted, the following should be pres,r t (l) That the article involved was fbod and drink meant to e consumed by live persons: (2) that the accused adulterated it and t e adulteration rendered it noxious as a 'food or drink'; (3) thar t e accused knew at the time ol'adulteration that he would sell the arric e as food or drink and knew that such article cannot be sold as food r drink. The Hon'ble Supreme Court clearly held that the offencr s completed on the introduction of the adulterant. 'Adulterant' wo r I mean that a material u,hich is mixed to make the 'food' unsafe r r drink unsafe. In the present case on hand, tobacco is not a lood r r

¶243

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KL.J Ci.P. No.l52 of2020 & balch

¶245

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 to be pre:red into sen ice.

¶246

As lar as Section - 328 of IPC is concerned, in the same

¶247

judgment it was hcld as lolloris:

¶248

"10. [n order to^prove offence under Section 328 the^prosecution is required to prove thal rhe substance in question was a poison. or any shperying, intoxicating or unwholesome drug etc, that the accused administered the substance to the camplainant 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 hun, or with the intention to commit or facilitate the commission of an offence. It is, therefore, essenlial for the prosecution to prove that the accused was dlrectly responsible lor administering poison etc. or causing it to be taken by any person, through another-.... ."

¶249

Tobacco does not fit into this deirnition.

¶250

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 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 unht 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

¶251

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IPC or in FSS Act. As per the dictionary meaning, the word 'noxic rs' is harmful, deleterious, injurious, poisonous etc. As stated above he allegation in the entire batch of present criminal petitions is r ith regard to transportation, posscssion, storage, sale and purchas: of banned products lrz., tobacco / tambaku I gutka I khaini / zarda / 1 an masala etc., respectively. Therefore, aocording to this Court. he contents of the complaint/charge sheet lacks the ingredients of Sect tn - 273 ol IPC.

¶254

As far as section - 188 IPC is concerned , as per the sett 3d law on the subject, belore an accused is charged. there must be: ln order duly promulgated by the public servant; the public servant n rst have the lawful authority to promulgate the order; the person flouti rg the same should have knowledge about the order directing hinr rrl abstain from the act; he must disobey the said order r.r,ith r rc knou,ledge; and such djsobedience of the duly promulgated orr or should cause a danger to the human life etc. In Boop Singh Tyagi a Division Bench of Allahabad High Court held that right to promullli ro the ordinance/order is also an issue which is being raised, becar- ;e under the FSS Act, the Commissioner of Food Safety alone has t re authorily to pass the orders only if the article of'food' can cals )s danger or is injurious to health.

¶255

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KL,J C .P No.152 oI)D0 & b.tch

¶257

In N.T. Rama Rao v. The State of A.P., rep. by Public

¶258

Prosecutorl2 while dealing with the offences under Sections - 188 and 283 of IPC, the learncd Single Judge of the combined High Court of Andhra Pradesh held as under:

¶259

"5) Even if the allegation that the petitioner conducted public meetings at tlTee road^junctions contrary lo the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act. I861 could have been given only by the Superintendent or the Assistant Superintendent of Police ol the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act- 186l and is violated. Seclion 195 (l) (a) ofCode of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concemed or some other person to whom such a public servant is administrativcly subordinate to enable any Court to take cognizance of an olfence under Section 188 ofCode of Criminal Procedure. In the present case, the charge sheet was filed by the Sub lnspector of Police, who could not have been the authority to granl permission for the public meeting and therefore, the complainVcharge sheet is in violation ofthe mandatory^provision of Section 195(1)(a) ofCode of Criminal Procedure.

¶260

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

¶261

L. Criminal l'etition No.532i of2009, decidcd on 17.09 2009

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C P. No.l52 of2020 t t.h

¶265

independent of the same. Even otherwise, the conduct of public meeting at three road^junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. ln so far as the obslruction in any public way is concemed, rvhich can also be covered by Section 28i ol the Indian Penal Code, the charge sheet cites only one witness to speak about the traf'fic 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 lor that public meeting resulted in any incorrvenience by way of obstructing the traffic, the same cannot be considered to be with necessary gluilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumslances, none ofthe offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violarion of Section 195 (1) (a) ofCode of Criminal Procedure, has to fail.

¶266

As the complaint has failed due ro its unsustainability, the proceedings in their enrirety have to fail, though the l'1 accused alone approached this Court by way of this Crirninal Petition."

¶267

In Thota Chandra Sekhar v. The State of Andl.a Pradesh, through S.H.O., P.S. Eluru Rural, West Godar: ri Districtrr, wherein by relying on various judgments including l. l. Rama Raol2 and also the guidelines laid down by the Apex Cour- n Bhajan Lalro more particularly, guideline No.6, which says 1l u

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Cruninal Petition No 15248 of 2016, decided on 26. I 0.201 6

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KL,J Crt.P. ]rb.l52 of2020 & batch

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where there is an express legal bar engrafted in any of the^provisions ofthe Code or the concernsd 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 conccrned Act, providing efficacious remedy to redress thc^grievance of the party, it was held that the proceedings in the said C.C. were^quashed by exercising power under Section - 482 ol Cr.P.C. It^was also further held that the proceedings shall not be continued due to^teclinical defect ofobtaining prior permission under Section^{- I55 (2)} of^Cr.P.C. and taking cognizance on the complaint {lled by V.R.O. and it^is against the purport of Section - i95⁽ l)^(a) of Cr.P.C.

¶272

Yide Notification No.50I/FSS- 1/2020,^{clated06.01.2020,} 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^andchewing tobacco products, like chap^{tobacco,pure tobacco,khaini,kharra,} scented tobacco / flavoured tobacco or^{by whatever namelocally it is} called packed in sachets /^pouches /^{packagein the entire Stageof} Telangana under FSS Act, 2006. It^is for^{one year.Vide Notification} No.505/FSS- 1/2021, dated 06.01.2021,^{the same was extended for one} more year. As per the information fumished^{andinstructions} received, several writ petitions were^{filed challenging thesaid}

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7.,J

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C,l P- No 152 of202A d t :h

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Notifications before this Court as well as the Hon'ble Supreme Co rt. A Division Bench of this Court declined to entertain some r rir petitions on the ground that thc Hon'ble Supreme Court seized r)l he said issue. lt is also relevant to note that the FIon'ble Supreme Cic rrt remanded back the matter to this Court. l herefore. such a notificat tn can only be issued fbr emergency situations and for prohibiting he distribution and sale of any article of a food cannot be lost sigh rf. Therefore. in vicu ol the Iaw laid down in the above judgm: Lts inctuding the^judgrncnts in Chi<Iurala Shyamsubdera. Sri Jagar: th Enterprisess and V. Nageswara Rao". According to this^(tc t it, Section - 188 of IPC \,ill not attract to the allegations leveled agai st the petitioners herein in this batch of criminal petirions.

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As far as Section - 328 of IPC is concemed, it deals rs th causing hurt by means of poison, etc., with intent to commit LIl offence. As per the said provision, whoever administers to or cat s )s to be taken by any person any poison or any stupe$ing, intoxicar i g or unrvholesome drug, or other thing with intent to cause hurt to s I h personJ or with intent to commit or to facilitate the commission ol n offence or knowing it to be likely that he will thereby cause hurt, sh; ll be punished with imprisonment of either description for a term u.hi h may extend to ten years, and shall also be liable to fine. Therefirr:. there should be administering poison, intoxicating etc., with intenr o cause huft to such person or with intent to commit or to facilitate tl e commission of an offence or knowing it to be likely that he r ,,^.l

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KI,J Ctt P *o.1s2 ol2020 &^balch

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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 ingredicnts of Section - 328 of IPC.

¶281

As lar as Section - 336 of IPC is^concerned. it^{dealsrvith an} act endangering life or^personal safety of^{others,andas peruhich,} whoever does any act so rashly or negligently as to^{endangerhuman} life or the personal salety of others, shall be^{punished r.vith impris-} onment of either de scription for a term^{whichmay.extend to three} months, or with fine which may extend to two^hundred and^tifty rupees, or with both. In the complaints /^{chargesheets,there is no} such allegation of rash and negligent^{act whichendangers humanlife} or personal salety of others. Therefore,^{accordingto this Court. the} contents of the complaints / charge^{sheetslacks the ingredients of} Section - 336 of IPC.

¶282

As far as Section -⁴²⁰ of IPC^{is concemed, it deals*'ith} Cheating and dishonestly inducing delivery^{of property.There is no} such inducement either at the^{inception or at a later stage.'[hus, the} contents of complaints / charge^{sheet lackthe ingredientsof Section -} 420 of IPC.

¶283

As far as Section - 269 of IPC^{is concerned,it dealswith} negligent act likely to spread infection of^{disease dangerousto life,} and as per which, whoever unlawfully^{or negligentlydoes any act}

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.L,J C.I.P. No.152 of20)0 t itch

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which is, and which he knows or has reason to believe to be,^like I^to spread the infection of any disease dangerous^to life, shall^{be puni; ed} with imprisonmenl of cithcr description for a term which^{may ext, nd} to six months, or u,ith fine. or with both. But, a^{perusalo1 he} contents of complaints / charge sheets in the^present batch of cr^es, such ingrcdients are lacking and, thcrefore,^Section - 269 oflP(l^{I ros} not arise in the pre.e,tt batclt^of cases.

¶287

. 2'1 . In vieiv of the above said discussion, according t,r 'ris Court. transportation.^possession, storage, sale and^purchast, of tobacco products are not totally- banned in the State of^{Telanganar nd} also in the Countr1.. Thercfore, it cannot be said that Sections - 2 i9, 270,211,272 and 273, 328, 336 and 420 of IPC are attracted t( he cases in this batch.

¶288

As far as the offences under FSS Act is concemec. as alreadv discussed above. in Chidurata Shyamsubdera, the^lea'r ed Single Judge follorving the guidelines laid down by the Hor'rle Supreme Court in Bhajan Lalr0 held that the^police are incomp( t^rnt to take cognizance of the offences punishable under Sections^- 54 r nd 59 (1) ofthe FSS Act, investigating into the offences along with ct rer offences under the provisions of the IPC. It was further held t rat filing charge sheet is a grave illegality, as the Food Safety Ofii^,er alone is competent to investigate and to file charge sheet followinS he Rules laid down under Sections - 4l and 42 of FSS Act. In he present case, the police have registered the crime for the offerr, es

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KL,J C .P. No.l52 oJ2024 & hatch

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

¶292

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 providc for the regulation of trade and commerce in, and producrion, supply and distribution of, cigarettes and other tobacco products and fbr maltcrs connccted thcrewith or incidental thereto. A readinp ofthe said objects of the said Act would reveal that a total ban o, ,"obu."o products lvas not envisaged by the said Act. The Parliament merely lelt it expedient to control the advertisement and sale of tobacco products- As noted earlier in the order, Section - 3 (p) of the COI'P Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the deftnition of tobacco products. Section - 5 of the COTP Act deals with prohibition of advertisement of cigaretle 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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{1.,J

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C|LP- No-152 of2A2( a ltch

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every package of cigarette or tobacco product contains a spec 1 ed warning (pictorial or otherwise). Section - 4 of the COTP Act- ) .ns smoking in public placcs. In addition. Section - 6 of the COTI' I ct, prohibits the sale of cigarcttes or other tobacco products to a pcr on who is undcr the age of 18 years are in an area within 100 yarcs of any educaLional institution.

¶298

A reading of this Act, particularly Sections - 4, 5,6 at 7 clearll,shorvs that thcrc is no gcneral ban or general prohibition or he manu facture/sale of tobacco products. 22 What is barred is merel-r he sale ofthese prodLrcts to a person, who is below the age of 18 ye Lrs and in an area within 100 yards of an educational institution. I he other aspects covered by Sections - 5 and 7 of the COTP Acl I :al with the adveftisement and the warning, rvhich is to be containccl r L a package, in which lhe tobacco producl is packed. This is a regulat( ry mechanism only. Therefore, according to this Court, the above ; id allegations of transpoftation, possession, storage, sale and purchase of banned lobacco products u,ill not attract the offence under Sectio r -7 of the COTP Act.

¶299

As far as Section - 20 (2) ofthe COTP Act is conceme< , as stated above, the allegations against the petitioner in respect *e complaints i charge sheets are that they were transporting, possessir g, storing, selling and purchasing the banned tobacco products to t re customers itlegally in order to gain wrongful profits. In view of 1 re said allegation, it is apt to refer to Section - 20 (2) of the COTP I ct

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KL,J Ctl.P No 152 oJ )020 & nokh

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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. Punishmcnt for failure to give specined warning and nicotine and tar contcnts.

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(t)...

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(2) Any person who sells or distributes cigarelles or tobacco products which do not contain either on^the package or on their label, the specified waming and the nicotine and tar conten6 shall in the case of ltrst conviction be punishable rvith imprisonment for a^tcrm, u'hich rnay extend to one year, or with ltne which may extend to one thousand rupees. or with both, and, lor^the second or subsequent conviction, with irnprisonrnent tbr^a term wlrich may extend to two^years and with lLne^whtch may extend to three thousand rupees."

¶307

lhus, Scction - 20 of COTP Act deals with^punishment for failure to^give specified^warning and^{nicotine and} tar^{contents.But, in} thc complaints I charge sheets, there is no allegation^againstthe pctitioners that they were canying on trade or commerceⁱⁿ contraband or any other tobacco^{products without label and specified} r,varning on the said products. In view of the same, the^{contentsof 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,^{registeringthe} crimes for the said offence against^{the petitionersis not only contrary} to Section - 20 (2) of COTP Act, but^{also contrary} to^{theprinciple laid} down in Chidurala Shyamsubdcra. In view^{of the same, the offence} under Section - 20⁽²⁾ of COTP Act is^{alsoliableto be quashed} against the petitioners. I once^{again reiterate that} I^{agree with the}

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:t,J CrlP No.l52oJ202Ad t t.h

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principle laid down by the learned Single Judges ofthe High Cour of Andka Pradesh in Chidurala Shyamsubdera, Sri^Jagartr th Enterprisess and /. Nageswara Rao".

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For the loregoing discussion and the authoritative^print i^rle of law. Criminal Petition Nos. 3768, 3879,^4046, 4071,^{4098.4) t9,} 4 100, 4 1 02, 414 l, 41 5 t, 1t s1. 4182, 4 187, 4247,^4249,425 I,^{4 ). ;t,} 4262, 4277, 4405, 44t5, 4542, 461 5, 4640, 4681, 4727,⁴⁷⁷ 5^t nd 4825 ol 2021 are allowed quashing the proceedings against he petitioners therein in the respective crimcs mentioned therein. Sir ce the proceedings in the aforesaid Criminal Petitions are^qua:;l ed against the respective petitioners, the respective Station Ilr se Officers / Investigating Officers are hereby directed to return he seized property / vehicles on^proper identification and verificatior of ownership under due acknowledgment-

¶312

Further. Criminal Petition Nos. 152, 153, 155, 162 & : t Z6 of 2020,3498, 3500, 3509, 35i4, 4010, 4ll0,4l19, 4140,^,1 L 8, 4194, 4216, 4230. 4361, 4612, 4622 and 4632 of 2021 are r so allowed quashing the proceedings against the petitioners therein ir re respective Calendar Cases mentioned therein. Since the proceed r us are quashed, the respective petitioners are at liberty to hle appropri te applications before the concerned Magistrate for return of the se ; :d property / vehicle and the Magistrate shall consider the sanrt in accordance with [arv.

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KL,J

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C.l-P. No.l52 ol 2020 & hatch

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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. LAKSHMAN,.I

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05'rrJULy.2o2t