Abdulla Bandimadra , Ali Abdulla v. The State Of Telangana

[ 3251 ]

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD MONDAY THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO: 9781 OF 2022 AND l.A No. 3 of 2022 Between 1 Abdulla Bandimadra @ Ali Abdulla, S/o Bandimadra Vali Basha, Aged about 31 cars, Oce. Driver, Ryo Near lndra Nagar Bus stop, Hassan nagar, Rajendra Nagar N/o Kurnool.

2 l\,,lohammed Muqaddim, S/o Mohammed Saleem, Aged aboul 20 years, Occ Business, R/o H.no 19-5-28/2, Mahmood Nagar, Hassan nagar, Rajcndra Nagar. .PETITIONERS AND The State of Telangana, Rep by the Public Prosecutor. High Court at Hyderabad, Through P.S.Rajendra Nagar .,RESPONDENT/COMPLAINANT Petition under Section 482 of Cr.P-C praying that in the circumstances stated in the N,4emorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings against the Petitioners in C.C.No.52i2022, on the file of XIV Addl Metropolitan Magistrate Cyberabad at Rajendranagar for the alleged offences 273,189 lPC.

Crl.P. l.A. NO:.2 OF 2022 Petition under Section 482 of Cr.P.C 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 appearance of the petltioners in C.C.No.52 of 2022, on the file of XIV Addl Metropolitan Magistrate Cyberabad at Rajendranagar.

IrLE l4.Na:! aEl0?2 Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to direct the Respondent to return the property seized and deposited in connection with C,C.No. 52 or 2022, on the file of XIV Addl Metropolitan lvlagistrate Cyberabad at Rajendranagar.

This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri SRINIVAS REDDY BALAKISTI, Advocate for the Petitioner and the Addl. Public Prosecutor on behalf of the Respondent No.1 and None appeared for the Respondent No. 2. The Court made the following

Crl Petitior I'1o.9711 of 2022 THt, HO 'lOL'RABLE SRI JUSTICE K.SIJREI\I'lER CRIT.IINAL PETITION NO.97B1 OI: 202').

I LONG WITH I.A.NO,3 OF 2022 COMMON ORI)ER:

lhis Ci-rm ndl Petition under Section 482 of ttrr: Code of Criminal Procedrre, 1973 (for short 'Cr.P.C.'), is fi ed b'y 'the petitioners tc qL ash the proceedings against thenr in C.C.Nc.52 of 2022, pending o r lht: file of XIV Additional Metropolitan IlJagiitrate, Cyberabad at f?a.e1fl13169ar, Ranga Reddy District 7.

The pelitiorers herein are the accused Nos.1 and 2 iir the said crtr|e.

The offe rces alleged against them are under S,t.:ions 1BB and 2'/3 of Indiar Perral Code (for short "lPC"). 3.

Hearci lea ned counsel for the petitioners arrd learned Additional Public )rosecutor for the respondent. Perused -hr: record. 4.

Perusal of he record would reveal that the lis invo vr:d ir this case had aireadl ber:n dealt with by this Court extensi,,,ely vide common orcler da[ed t)5.07.2021 in Crl.P. No.152 of 2020 ard L:atch

I Crl.Petition No.9781 of 2022 1,1/hich was reported in Mohd, lameel Ahmed v. State of Telangana'.

5.

Therefore, this Criminal Petition is allowed quashing the proceedings in C.C.No.52 of 2022, pending on the file of XIV Additional Metropolitan Magiskate, Cyberabad at Rajendranagar, Ranga Reddy District, in terms of the common order, dated 05.07.2021 passed by this Court in Mohd. Jameel Ahmed (Supra).

6.

Since the charge sheet is already filed, the petitioners are at liberty to file an appropriate application before the concerned Magistrate for return of the seized property/vehicle and the Magistrate shall consider the same ln accordance with law. However, it is made clear that if the seized stock of tobacco products or other products are expired, the same shall be destroyed by taking permission from the concerned Magistrate.

7.

The copy of the common order passed by this Couft in Criminal Petition No.152 of 2020 and batch on 05.07.2021, shall form part of this order.

t 2022 cri 6/12

Crl.Pelition N ).r/81of 2022 l As a sequel there to, Nliscellaneous petitions, it arry, pr.:pfljng In the Criminal Petiti ;n stancl closed Sd/. P. GO\VRI SHANKAR ASSISTAN'I' IIEGISTRAR ( - ,) t //TRUE COPY// SEC TIoN OFFICER To,

1. The XIV Adll. Metropoliian magistrale, Cyberabad, at Rajend a.agar, Ranga Reddy Distri 1.

2. The Station lous€, Office. Riljendr3 Nagar. Police Station. Cybe abad Oistrict.

3. Two CCs t( the Public Prosecutor. High Court for the State (,f l-elangana, at Hyderabad I CUT)

4. One CC to vl/s SRINIVAS REDDY BALAKISTI, Advocat{r [OPUO] 5- Two CD Co )ies I NOTE: Office is Jirected to Cispatch lhis order while enclosing a crpv of the order dated 05 07-2021 passed in Cd P. No 152 of 2020 tc all the lJdresses. DL

HIGH COURT D AIED 191121?022

ORDER

CRLP.No.9781 of 2 )22 :::-.

: .: l4 r(.

,a=- / \\fi I !:() :[ts rC \ * lisp;'-r:itt-o \=.=7 ClRIMtr-At P I--l ITIC N IS ALLOWEI) (-lA.'

1tV

, KL,J Crl.P. !\\r I f of )020 & brtrch ITON'I}LE SRI JUS-IICIi K. T,,\I(SIIII.\N CRINIINAL PETITION Nos.l52, 153. 155. 162 & 51t26 O1.2020 ANI) .r.198. 3500. 3509. 3514. 3768. 3879. 4046, 4070. ,u)77, -1098. 109e. .l I 00, -ll02. {l10.4119.4140 .4141. {l5r. J 157. Jt78. {rn:. I I 87. -l l9{, .12 I 6. 1230, 4247, 4219. 4251. 4258.4262.4277. 4.1(r l. {.ll15. {41 5. .15.12, .16 I 2. 1615. 4622. 4632.4640. 4681, 4727.1 775 .t 41125 OI 2()2 I . COMMON ORDER:

All the above Criminal Petitions are filed to quash the lrroceediugs against the petitioners accused in respective Crimes / Calendar Cases. The details of rclevant (-rinres / Calendar Cases, offences alleged, nature of otl'ences ctc., are mentioned in the following tabular form:

Ofl'ences allegedly comrritted Nirturc ol'ollcnce Crime No.

Accused Number SI, Nrr Crl.P.

No.

272, 273 1t'(: & 20 (2) r/rv 7(2) ol COTPA sole accused 0l 3'7 68/21 2l'l120 of PS Manoharabad 33/21 of PS Kadam sole accused 3879/21 Transportalion ol Amber tobacco Salc of banned tobacco 2',70 & 2',73 tPC r,,ducts Sale ofgutka/tobacco illegally in 78/21 of PS (T) Adilabad At &2 0l 4046t21 do04.

407't/21 2ll2l of PS Easgoan sole accused Possession of gutka /tobacco in pan shop clo 270, 27i rP( & 20 (2) ol COl-l'A Transportation of bilcd utka 1098/2t 185/21of PS (T) Nirmal Al to3 I Posscssion oftobacco I products in the house 1099t2r No.36/21 of PS Koutala 270 & 2'73 lPC sole accused Possession ofbanned gulka & olher tobacco 4t00l2t No.38/21 of PS Easgoan sole accused 2'70 &2'73lP( items rn 336, 273 & r88 IPC & 59 (i) of FSSA ucls -l ra sportnlion and salc ol prohibired tobacco 0s 4102/21 455121 of PS Kukatpally sole accused

crt.t No l5), I \t)..t) ,* t,,t/, ]t 270 & 273 lP(: & 2O(2) rlw '7(2' of COI'PA 272 & 273 tP(: & 20 (2) of COTI'A .l i,l l of PS ( hirugl,ally i)() .114 t ll lransportalrort rrl Al to 3 tobacc(1 pr(rdu.l\ tlrS:l of PS ( houteppnl Irl .tlit ,lt Storaltc ol_tobaeeo :rrod rcts l'r, r salc srrle lccusecl + 272, 213 & 328 IPC&20(l)&7

(3) ofCOTPA ll 14:l of PS t hr rval tNI-C) l'rrrchasc arrd salc r,l'

prohihited tohaeco .1t-i- : I Al to 4 111!qcts rl r rsporlation oI hnn n.'

-1 -'I ot I'S I ,l I] Al & 2 2',70&271tPC .1 1S.', I I l ll: lrLrrirdh lenr tob 1!!!_ru lLir l),,ssession ol benncrl lobacco produ.l\ ()-1 J1 of I'S (f) ,larrchcrial F- ,lll ol PS II orvrr \rlilabad ul ll of PS I sole accused dr.r- .iili: ll il I l I t.r -doPossession ol banncd sole accused i , g!!l!k-a produds I l Salc ol-gutka urri .,\l & 2 -dol2l') : i tobaaco producl\ Aboul to transpon rroxi,'us gutka arrrl l ou n Adilabad I )0 ll ol PS I fc.rrn Adilabad )lll ol PS I fourr Adilabad l0r,I ot PS I forrl Adilabad -dosole accused l:51 I I lobacco LIC Ii f r7. ]4258i1r I lial,: ofl,anncd gutka altl _ lobacco products l r rnsp,rrlation oi !,rutka arrd tobacco P!dt'{\ sole accused -doI ls .llr,t I I At &2 -doI lial,r (]1- banncd lol)ac.

rtarubaku) products i orly 188, 212 & 27) IPC 1:r rkai I rhacc,r iuar s Trarsportation ol'

T..r.w Na Al to3 t88, 272, 213 4.

328 IPC | '.1 Abduilapurrrct - 2()lr2l ol PS I rrrla sole accused -r -i i)r i-5 il N-rl onda sole accused .,I 4J i ll -do8rqlr trltacr:rr I L,riiiil- ('l ) I 188, 269, 27{), 273 iw 34 lPC &.

3ofEDA&51 (b) of DMA Al & 2 37121 ol PS lll I'I ) Kothagudem J'ossession ol tobacco Jrodu(ts rlr ki'?na shop l2 .r5rl I I At & 2 2)5t21 of PS Nirnral Town 89,'20 of PS Nlarnada I\:ssessron oi prolribited tot)acc(' products for sal.

ll lnsportation of balured 1,rbac,:o'gutka poekcts I'osstssiorr oI barned gurka & lobacc() ts ln kirnna sho 'fransportatiol ,rf cillaretle or olhcr tobac.rl 2l .16 t5,l1 I zzo r.:u r tr'c -do- r/w 14 IPC I l.l .11i-10 :1 AI A2 328 tivt 5ll,2i2 &273lPC 136/: I of PS Pcddrvoora -l6\tll :i l I A:

270, 2',72 & 2'i3 IPC & 20 t2) ,rf COTPA l6-l,/:ll ol PS A.:libatla l6 17)t)i l.roducts wirhour valici licensc 2-14111 of PS I al .Al to 4 328, 2'72, ':.73 & 188 IPC .1;r5',1I l: ale olgurka & khaini

328. 270 [. 2'13 r/w 5l I IPC & l0 ll5rll ol PS Al & 2 ]E 4E25i: I r.Ial n)al]l 'f r anspor'tatiolt of hallnerl

) KL.J Crl.P. No.l52 qf20?{) & harch CALENDAR CASES I 35 l5/ l9 ol'

I-AJMFC, r\2

210. 273 & 188,420 IPC & 58 ofFSSA |-.-l l,) l5l l0 Transportation of banned zarda products -!91=r:al )724ti9 of xv A('Mllt, Hvd.

15l81l9 oi'

I,AJMFC.

Warangal A3 420, 270 & 273 IPC & 58 of FSSA A2 272 & 2'73 IPC & 59 of FSSA, 2006 li) 1-5I t(l Sale ofzarda illegally .tl l-i-i l0 Transportation of bannecl zarda I A2 2',72, 2'73, 336 &_ 420 tPC & 20 (2) of COTPA Spccial N4agistrate ol ll Class, Jagtial {7l7rl8 oi I lrr AMM. I St-c.bad I 161, t0 Sale ofprohibited gutka and chewing tobacco products I I r'

.i\l & 2 188, 270 & 273 tPC Transponation of Amber gutka pockets 53lrr l0 Sale ofbanned tobacco and gutka products l-r 216/2O ol'

]I:CM, Devarkonda Al & 2 420 & 273 IPC ll9s I I l 963/ l9 of JI:CM, Miryalguda Al to4 420 & 273 rPC & 20 (iD of corPA.2oo3 Transportation of tobacco and gutka products li l 1500 I I 188, 270 & 273 rPC, 20 (2)of COTPA, 3ofEDA& 5l O) of DMA 452/20 of XXV MMC, lbnlhimpatan Storage ofbanned gutka and other tobacco products illegally lbr salc Al & 2 -1509,1I 6321t9 of XXV MMC, lbmhitnpalnam Al to S t88, 270, 273 & 420 IPC & 20 (2\ of COTPA 3'7 i5t.r ll Supply ofgutka and other tobacco products Al & 2 2'72 & 273 rPc & 20 (2) rlw 7 (2) of COTPA l Transponation of Amber tobacco l3 1070/21 54'l l2l of PJMFC, Caiwel 509/20 of Spl.PCR Mobile Court-cumJMFC, Adilabad 270 & 273 rPC & 20 (2) r/w 1 (2) of COTPA I Al ro5 41 1 0,21 I Transportation ofpan masala and banned gutka I I 512120 of Spl.PCR Mobile Transportalion ofcottoD seeds and Al to4 2',70,2',71,212 & 2'13 r/w 34 40.

.11 t9/21

() K L.J Crl.l'. .^to 152 c/ 1020 & botch ( (, i,ll't ( trrn JI\ll'( .

Arlrlabarl [,c'

Sec.l ol-Fl)l )irfned Iutka ] sl( \,, l1l .r I (ll l\ \\l\l 172 & t7l Il'('.t S. c.llr (l). l0 (l) of (otPA 'f! alrsl)ort:rti( n ofbanned tobacco arld glrtka I ll,, .l !

.\ I( .1.

I ll \;r::er 8l0i: l ol 170 & I7-l lP(' & l0 C) ,,1 ( oP lA + so lc xaculr(l Pl,rchas( i n(i sale ofbanred gutka I AJ 1\ II'( "

thalrrrrarr .1 I 7lr/21

8. 27t & Sale oft.laacco products in his shop anJ <lisobcying the mles imlDsedbr'Govt.in !()t.\();0iiFS(-Il21 6.1.21 5 iti?,1i ol xv A( Nl \t.

Nantpaliy lr. ctrsttl l7l IPC & t0 (l)&5of (.OTPA 4ltt4/21 ,13 I l*I | | q^et2t ll{)i I i .,i Pt\tF( .

L harrrrranr .\l & l 170 & 273 rPC & 2{) (2) r,l COTPA Iraispo taliofl ()l Amber gutka 4l r0,i i 8:9ill o 'fr:rrr\l c rlatioll of gutka,/pat'l nlasala -doI lool LL l,,l Kltanrurirnr l()l{il I AJIVIF('.

Asifabati r)l ,\i & l 170 &273 tPC ['ossess,or ol tc hacco producls ,llelally fbr sale 4361 I I 5-)-],l0 c'l ,\,INIF("

Nirrral I'urclras: ald sale ofprohibited '3trka pockets Soic accusccl 622,19 ol 46t).'.21 -cloNirrnal I AI :

Possessico r:fgutka packets at bus starxl br sirlc illegally il3 20 AJNIFC.

Nir:nal 46J2t21 A] -do- r,'w l4 IPC & 20 (2) oICOTPA Tra$por talron of banned tobacco pro(lucts 2.

F eard Mr. M.A.K. Mukheed, Mr. Gajanand Chakr-avarthy, Mr. K. Sulender, Mr. Praveen Kurnar \ ecrjala, Ms. P. Radhika, Vr. Slinivas Reddy Balakistr, Ms (1. Sunitha Kun'rali, N{r. (ondadi ;\.jay Kurrar, Mi. S.1\{. Sublran, Ms. N Ar1hi, Mr. Y. Balir Murirli.

Mr. Boggula )taju, Mr. S Chandrasekha , Mr. V. Yaciukrishna Sainath. lear red counsel

KL.J Crl.?. No.l52 oJ 2020 & batch appearing on behalf ol respecrivc pctitioners and learned Public Prosecutor appearing on behalf o I' r'espontle nls - State.

3. The question involvcd in all thc above matters is one and the same and, thereforc. thc sarnc are- disposed of by rvay of this common order

4. The main allegations against llre pctitioners - accused are that they were transporting. possessing, storing, selling and purchasing the banned products r,r.?., tobacco / tambaku I gutka / khaini / zarda I pan rnasala respcctivcly. The of'fences alleged against the petitioners are under Sections - 188, 270, 269,271,272, 273,328,336 & 420 reacl with 34 and 5ll of the Indian Penal Code, 1860 (forsholt'tPC)'); Sections - 20 (l),20 (2) and 5 read with 7(2) and 7 (3) of the Cigarcttes and Other Tobacco Products (Prohibition ol Advertisement and Regulation ol Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'COTP Act'); Sections - 58 ancl 59 of the Food Safety and Standards Act, 2006 (for short 'FSS Act'); Section - 3 of the Epidemic Diseases Act, 1897 (for short 'ED Act') and Section - 51

xt t ( r/ \, / i .,, "!)'t .l l)ttt'lt (b) of the Dis rster Management Act, 2005 (lbr sho 1 DS Act) respcctivcly.

5. The rt spective learned counsel appearin': on irrl'aii'of the petitioncrs rn tlre above crintinal petitions "voulrl suhtr,ir lhirt the contents of corrplaint / charge sheet lacks thc ingrcd r:rtts of'the ofJ-ences allege I against the accuscd. For thc otl'ctrcc: itnt cr thc provisions of F iS Act, only Food Salety Olliccr is hrrr inp p()\\el lo initiate crirnina proceedings against accusecl and thc po r:e ure nol having any po er to register a case fbr thc ol'f'errces un<icr the provisions of F SS Act. There is no inducemenl by th,: :)cti:ionel's and. thercfore. oflbnce under Section - 420 of'[i)(' do:s no. arisc. According to them, the contents of compiaint I charr;.- shcct arc aiso lacking th: ingredients of the of'fences under Sc<ti,rns - 269, 27 O. 27 l, 27 2, 2'7 3, 328 and 336 of IPC.

i) Acco'ding to them, there is no .riolation ot' S t:r'tiors - 20 (1), 20 (2) and 5 read with 7 (2) and 7 (3) of the COl i) Act. 'l'he Investigating Officers / Cornplainants rvitlioLrt tollr,wi;rg the procedure laid do,"r,n under the Code of Climinal Pror:erlure, 1973

I KL.J C .P. N<,.152 of2020.< botch (tbr shorl 'Cr.P.C.'), have registerecl the cases litr the ollence Lrnder Section - 188 of IPC and laid charge shect against the accused. Necessary ingredients to attract the provisions ol'Section - 3 of the ED Act and Section - 5l (b) of the DM Act arc lacking in the complaint / charge sheet.

ii) With the above said submissions, the rcspective lcarnccl counsel sought to quash the proceedings in thc albrcsaid crinres / calendar cases.

6. On the other hand, learned Public Prosccutor relerring to the principle laid down in the State of Maharashtra v. Sayvcd Hassan Sayyed Subhanr by the Hon'ble Sr.rpreme Court and in Ganesh Pandurang Jadhao v. The State of Nlaharashtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtrar 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 material including the vehicles and laying charge sheet '. 20l8 ArR (sc) 5348 '.2u6cn.L.J.24ol

3. 2019 SCC Online Bo[r 1857

l0 KI..I Ol.'. .\/' / j- ',/ 'r/', ,f ^Lrlrl'

against lesllccti 'e ac:cusetl in the aforesaid crimes / calt rt,.lar .:ascs Accor(ling to tirn, the accused were tratlsporting, Pr.,55t155i11g, storing. sclirng anrl purchasing the banned products r.'1.?., tob:tcco i tambaku gul (a / khaini / zarda I pan masala r,isl)ec.ively. Accoltlirrl ttr h rr. thc accused have to face either ittvestigatit,tt cr trirl arr,l nlovc thcir innocence, and instead ofdoing s<,. helr ltare lilcd thc l)rcser t crirninal petitions under Section - 48ll ,.,i i'1'.1-,.1' rvlrich cannot [r: considered at this stage.

i) wilh the above said submissions. learncd l)ublic ProsecLrttrr sou.lht to dismiss the above crirrinai petitior ri

7. In vi :w of the above rival submissions, it is anpo-.itc to extract the rcl,rvanL provisions of IPC, COTP Act, Fi-( ,rr:t, ED Act and DM A :t, rvhich are as under:

R[,L},\' .\N]' PROVISIONS UNDER IPC '188. D sobedience to order duly promulgated by puhlic ser!ant. -Whoever, knowing that, by an order prornuig.ated bv a pul Iic scrvant lawfully empowered to pronrulgat€ ;uch orcler. lr, is directed to abstain from a ceftain act, or t(, lilke certain r rdcr with ccrtain property in his possession or uuder his rnar ageurent, disobeys such direction, shall. if srrch disobctl:ence causcs or tends to cause obstructaol.l,

II KL.J Crl.P. No.l52 of2020 & botch annoyance or injury, or risk of obstruction, antroyance or injury, to any person lawfully employed, be punished with simple inrprisonrncnt fbr a tenn which may extend to one month or rvith llne which may extend to two hundred rupees, or lvith both; and if'such disobedience causes or trends to causc dangcr to human life, health or safety, or causcs or tends to causc a riot or affiay, shall be punished with imprisonnrcnt of either description for a term which may extend to six months, or with fine which may extend to one tlrousand rupees, or with both.

Explanation.-lt is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration 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 street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."

"269. Negligent act likely to spread infection of disease dangerous to life.-Whoever unlawfully or negligently does any act whiclr 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 cither description fbr a tcnn which may extend to six rnontlrs, or with fine, or with both."

t2 K L.J ( rl.l' N.'. 1 5' o-t 202( & bitch "270. 11: lignant act likcly to spread infection of disease dangcror s to lifc.-'.Whocver rraligDantly does any act rvhich is. rntl rvhiclr lre kuorvs or has rcason kr believe to be. likcl1 to splciirl thc inf'cction cri any discasc d.illgcrolls to lit'e. sha I be punished 'rvith inprisonnrent ot either descriptir n l()r r lcllr'r rvhich nray extcnd to two yearJ. or wilh Iinc. or rr itlr bolh."

*271. I,isohcdicnte to quarantine rulc.-Wht,e.,er knrru'ingl I Llisobevs auv rulc nradc and pr-omulgated b'z the Govcmrr lrl firr putting any vessel into a state of quarar,tirre, or tirr ntulating thc intcrcoursc of vesscls in a starr: of qullll'rtir : t'ith thc shorc or ,,r,ith othcr t,essels. o' lbr regulatin I llrc intcrcoursc betwecn places wher€ an inlbctiou, rliseasc prevails and other places, shall be punislre(l u'i1h irrprisonnrcnt of citlrer descriptioir for a tean which rl,:y extcnd to six rnonths. or with ilne, or rvith boti." "272. A,t ultclaiion of food or rlrink intcndctl i'or sale.- Whocver adulteratcs any article of food or drirrk, so as to make su, h article noxious as ftrotl or drink, inteltding t,r sell such arti :le as lirod or drink, ol knowiug it to be likellr tJrat the sarrr .,vili be sold as ibod or drink, shall be punished with iml,risonrnent of either dcscription for a tenn ryhich may extr nd t(, six lnonths. or wtth fine which may extend to one thor.r ;anrl rxpccs, or with both."

"271. Sr le ol noxious food or tlrink.- Whoever sclls. or offers or exposes lbr sale, as food or drink, any arlicle rvhich has hccr rcntlcred or has becorne noxious, or is in a state untlt tbr food or drink- knolving or lraving rcason t() b(rievc tlrat thc ;arrc is noxio'-rs as tbod or drink, shall be punished

ll KL.J Crl.P. No.l52 of2020 & batch with irnprisonrnent ol'cithcr descr-iption tbr a term which may exteud to six months. ol rvith flnc rvhich may extend to onc thousand rupccs. or rvitlr both."

"328. Causing hurt by nrcans ol'poison, etc,, with intent to commit an offence. Whoe ycr athlinisters to or causes to be takcn by any person an1' 1'roison or any stupefrng, intoxicating or unwholesoure drug, or olher thing with intent to cause hurt to such personr or u,ith intent to commit or to facilitate the commission of an olli:ncc or knorving it to be likely that hc will thereby cause hun, shall be punished with imprisonment of either dcscription iirr a term which may extend to ten ycars, and shall also be liable to fine." "336. Act endangering lil'e or pcrsonal safcty of others.- Whoever does any act so rashly or negligently as to endanger humau life or the pers<xral salbty ofothers, shall be punished rvith irnprisonment of either description for a term which may extend to three rnonths.

or with fine which may extend to two hundred and lifiy nrpees, or with both." "420. Cheating and dishoncstly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the rvhole or any pafl of a valuable security, or anything which is signcd or sealed, and which is capable ofbeing converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

l1 Kt..t (rl l'\r l;l , t1t):t) <l htnh "34. Acts donc by scveral persons in furtlrcrnncr' of common itttention.-When a crilltinal act is thrrtc lv scveral pt rsons in l'urtherance o{ thc cotntntm inlctrtiot ,rf all, each )f such persoils is liablc lbr-that act iii tlrc salic rnanner as if it werc donc by him alone."

"511. Punishment for attcmpting to conlnrit olTe0crs punishab le rvith imprisonment for lifc or oihcr imprison nent.-Whoever attempts to cornrrril an trll:rr,:e punishabl : by this Code u,ith irrprisonmcnt li'r Irf ' rr imprisonr rent, or to cause such an offencc to bc corllnrtrr(1. and in su:h attempt does any act towards the conrrrission ol tlie off-err:e, shall, where ilo express pr()visi()n ,s i',a,lc li,t this Codt for'Jre punishrncnt ofsuch atten.rpt. bc l,unisl:il with im1 risonment of any description providctl lir r he offence, tr a tenn u,hich may extend to onc-hal| o.' hc imprisonr nent for life or, as the case may be, oncJralfcl :hc longest t,:rm of irnprisonment provided for that r-.ljcnce . or with suci fine as is plovided lor tirc offencc, ol r itir i:i,tir. Rl,.r.EVAN'I' r'RA-VTSIONS UNDER C0 "5.

Proh ibition of advertisement of cigarettes anrl other tobacco products.{l ) No person engaged in, or purpoltcd to be en;aged in the production, supply or tlistrihuti,r:r of cigarette. or anv other tobacco products shall arlvertis,: rrnd no perso 1 hal,ing control over a rnediurn shall cause lo lte advertise I cigarcttes or any other tobacco prodrrcts thrt,r.gh that rne liurn and no person shall take pai't in ,.ny advertisr mcnt which directly or indilcctly :ir.

l-i Kt..t Crl.P. No.l5) of)020 & borch promotes the use or consumption of cigtreltes or any other tobacco products.

(2) No person, for any direct or indirect pccuniary henclit, shall* (a) display, cause to display, or pemrit or :urtlxrrise to display any advertisement of cigarettes or any othcr lobacco product; or (b) sell or cause to sell, or penrit or aullrorisc to sell a film or video tape containing advertisencnt of' !-igarettes or any other tobacco product; or (c) distribute, cause to distributc, or pcnril or authorise to distribute to the public any leallet. hanrl-bill or document which is or which contains an adverliserlent of cigarcttes or any other tobacco product; or (d) erect, exhibit, fix or retain upon or over any land. building, wall, hoading, frame, post or stnrcturo or upon or in any vehicle or shall display in any manncr whatsoever in any place any advertisement of cigarcttcs or any other tobacco product:

Provided that this sub-section shirll not apply in relation t(F (a) an advertisernent of cigarettes or any other tobacco product in or on a package containing cigarottes or any other tobacco product;

(b) advertisernent of cigarettes or any other tobacco product which is displayed at the entrance or insitle a rvarehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.

(3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption ofi (a) cigarettes or any other tobacco product; or (b) any trade mark or brand name ofcigarcttcs or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by anolhcr person." "20. Punishment for failure to give specilictl warning and nicotine and tar contcnts.-

i6 ^/.

.t ( r././,. l, /i- ,,) ',-'t, & htltt (l ) Arry lsrson who produces or manufactures crgarcll(s r)r tobrrcctr rroducts, which do not contain, either on tlic packirgc rr on their labcl, the specified rvaming and thc ric,;tinc ; ud tar conteuts, shall in the case of first coirrii ti,,n bc purrisirablc with imprisonment for a tenn which nrrry cxlcntl 1o two years, or rvith fine which may extend to ii.'c tl)(rtlsarld rupces, or with both, and for the seuon(l ol sut,scque lt conviction, rvith irnprisonment for a temr u l-rich nrav crte rd to live years and with fine which may erterrri to lcir lli(rus rnd rupees.

(2) Any 1 ersor) who sells or distributes cigarettes or tobat co ;,^nr1lg.1. which do not contain either on the package or x thcir lab, :1, the specified waming and the nicotine anJ ar contcnts shall in the case of first conviction be punisJurblc with irnl risonment for a tem, which may exlcnd to ()nc 1c.rr. ol vith line which may extend to one thousand rupees, or rvith loth, and, for the second or subsequent convit:lion. .r,ith irnf isonrnent for a tefln which may extend to trvo lre:rrs and with fine which may extend to three thousand rupees.' "7. Re!tlictions on trade and commerce in. and pro(luct on, supply and distribution of cigarettes and othcr to racco products.- ( I ) No p )rson shall, directly or indirectly, produce, suppll, ,lr distribut: 6 cigarettes or any other tobacco products ( lrljss e\ery pi ckagc of cigarettes or any other tobacco prcdr.rcts pltrtluce, r, supplied or distributed by hirn bears thereon, c,r on its label ;uch specified waming including a pictolial wanr,ng asnrayteprescribed.

(l) No ferson shall carry on trade or comtnerce in cigarettcs or rrny otirer tobacco products unless every packa.3e oi'

t7 Kl,..t Crl.P. No.l52 o1 2020 & bot..h cigarettes oI rny other tobacco products sold, supplicd or distributed by hirn bears thereon, or on its label, the spccified rvaming.

(3) No pcrson shall import cigarettes or any other tobacco products ibr distribution or supply for a valuable considcration or lbr sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thcreon, or on its label, the specified waming.

(4) The specilied waming shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for tlistribt(ion, sale or supply for a valuable consideration.

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

RI,ILE\/ANT PROVISIONS UNDER F.S.S. Act:

"58. Penalty for contraventions for which no spccific pcnalty is providcd.-Whoever contravenes any provisions of this Act or the rules or regulations made thereunder, for the contravention of rvhich no penalty has been separately

l,\ KL,J Crl.l' nro.l.;_ t,l lt):t) & b0t.lt 1)r()\'i(le(l n this Chapter. shali bc liablc to a penaltl'wriih l.nit\ cxlqr tl trr 1rv0 Iakh rupcos."

"59. Pur ishnrent for unslfe food.-Alry person \vho, whcthcr I_v hirnself or by any otlrer person on his behalf, mirrutlcl,rics ',bl sale or storcs or sells or distributes or iurports l r\ irrliclc of lixrd l'or hurran consuurption rvhi,:h is unsrr{-c sl all hr: prrnishahlc,- (i) rvherc such failure or cor'rtravcntion does not result in injurv. rv tlr inrprisonrncnt ['or a tcnn which rnay extel(l to six urontl s arrtl also rvith fine which may extend to one lakh rupccs;

(ji)rrhcr', iilch fhillrre or contreventiolt results in a ncngrievous iniLrly- with irnprisonurcnt for a term which rnay extcnd t( o e year and also with llnc which may extend to thr-ce laklr rupces;

(iii) rvhcr e such thilure ()r colrtravcntion results in a grie vous injury, uith irnpriscnnrent fbr a term rvhich may extend to six years arrrl also with tlne which may extend to five lakh rtlp(jes:

(ir,) wher e such l'ailure or contraveution results in death. with impr-isorr lent tbl a tell which slrall not be less than tieven years bu: r,vhrch rnay extend to imprisonment tbr lift: and also witl finc which shall not be less than ten lakh nrper:s.'' RELEVAN'T ]'ROVISION UNDER E.D. ACT:

"3. Penr 1t1,. r\ny person disobeying any regulation or order nade ur Cer this Act shall be deemed to have comrnitted an oll'cnce punishable under section 188 of the Indian Penal Code (4 , ol I 860 )."

l9 Kt_..J Crl.P. No.l52 of2020 & barch RELEVANT PIIO\/ISION TJNDI,,R I),M. ACf:

"51. Punishnrent for obstruction. etc.-

(1) Whocver, willrout rcasorrlble cirusc (l) Whoever, rvithout reasonable causc (a) obstmcts an1, olticct- pr elnployee of the Central Govemment or lhc State Ciovcrnrnent. or a person authorised by the National Auth()ritv or Statc Authority or District Authority in the rlischarge of his tunctions under this Act; or (b) reluscs to cornply rvith any direction given by or on behalf o1' lhc Central G()\ enrnlent or the State Govemment or tlie National ExcclltiVc Corlrnittec or the State Executive Committec or thc Districl Authority under this Act, shall on conviction bc punishable with irrprisonment for a term whiclr may cxlcn(l to onl: vcar or rvith llne, or with both, and if such obstruction or refisal to comply with directions results in loss ol'livcs t>r irnmincnt tlanger thereof, shall on conviction bc punishablc lvitl.

r inrprisonment for a term which may cxtend to lwo years. notes on clauses Clauses 51 to 58 (Secs. 5l to 5tt) sseks to lay down what will constitute an offence in tenns o1'obstrxction ol'the functions under the Act, false claim firr rclicf. misappropriation of relief material or ftlnds, issuancc ol lalse waming, tailure of an officer to perform the duty imposctl on him under the Act without due permission or hwful excuse, or his connivance at contravention ol- the provisions of the Act. The clauses also provide for penaltics lbr these off-ences."

8. The /rs' involved in the present petitions rs no more res integra. A learned Single Judge of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Chidurala Shyamsubder v. State of Telangana4 had an occasion to deal with the issues involved in the present criminal petitions. After referring to various provisions of IPC, FSS Act, a- Cri.P. No.37ll of2018 &barch. decidedon 27.08.2018

Kl...t ( j/ . \, .1j r -'/,-i/ ,t b(r/(lr COTP Acl and rlso the plinciple laid clorvn b;, thu Apo. (.'or-rrt and other High Cou rts in several .jr.rdgnrents. tht: learneti S rrile .ludge had fiamed the ssues, which are as Lrntlcr "l) Whether the respondent/ Sub-lnspector of'Police. is conll)etent to investigat: into the offence punishable urrder Seclions 5,J and 59(l) ofFSS Act?

2) Wheflrer t re petitioners in all tl.re pctitions arc firturd cornuritting any act witl rnalicious intention, ,.vith l.,no,.r lc,.tgc nlr,.i r',.':r.or to believe that such act likcly to sprcad thc inlcctitx of anl rlisease dangerous tc life? And r.r'hether thc petitirxrers selling or ofli:nng or exposing tb sale as food or drink. any anicle rrhich lras bccn rendered or has become noxious or is in a state unllt lix fl:,od or driti< or reas rn to believe that the sarne is noxious as food ,r: lrink? If so, are ttey liable to be procecded tirr tlrc ollince prLrrrshatrle under Sectic os 270 and 273 lPC.?"

9. Afte: an elaborate discrrssion ancl orr consiiiralion of various aspectr , the leamed Singlc Judge has l.rcld thrrr the police cannot take co3nizance of the oftcnce, to investigatc :nlo and file charge sheet aliainst the accused thcrein for the ot-fenc: lrunishable under Sectionr, 54 and 59 (l) of FSS Act, as th(ly were not elnpowered urdet the said Act to launclt thc proser:utic,rr, Lrut only Food Sat-ety Otficer appointed by the Ciovernnterl alone is competent to lrunch prosecution tbr those tw,o t t-t-encr:s. \ /ith the

2t Kt_..t (il.P. No.l5) of)tt?0 & horch said findings, the learned Singlc Judgc has quashed rhe proceedings where the of-tences arc undcr Scctions - 54 and 59 ol FSS Act initiated by the police.

10. In the very same judgnrent. thc lcarned Sirrgle Judge lurther held that chewing tobacco and khaini are not the 'tood' within the definition of Section - ,l(j) ol thc I]SS Acr and rhc manufacture, sale or exposing lor salc of tobacco etc., is governecl by the provisions of COTP Act, but not by FSS Act and so also the provisions of IPC. The respondents - police are incompetent to investigate the offence punishable unclcr Sections - 54 and 59 (l) ol the FSS Act and allegations in the charge shcet coupled rvith the statements do not disclose the commission of the offence punishable under Section - 2'73 of IPC since transpofiation of noxious food is not included undcr Section - 2'73 of IPC. The act done by the accused therein i.e., transportation of klraini and chewing tobacco though dangerous to human life, it r.vould not spread or infect or cause any diseasc on account of transporlation and if those products are consumed by hunran being, it rvould certainly cause damage to the hcalth. Therefbre, transponation ol

Kl'.t khaini or cher,vi rg tobacco by itself is not an oltcrrce trncr. r Scctiott - l7() ot'II'C. l']rn Nlasala is not a tobacco prodr"rct to lall ,ritl in the purvic* of'CO 'P Act. Therefore, the provisions ol thc ( () | P Act har c no anplicz tion. thereby registration of crinre on th l rr1)und of' i,it-liiiiirir i,f Se,;tions - 7 (l) (2) (3) (5) and Section - -(' ol l.'(lTP r\ct is an illcg rlity The leamed Single Judge furtlr,:' hclrl that rcgistratirrn of cases for the offence under Section - l(', (l) rcad rvith 7 (2) of IIOTP Act is illegal. With the sard f nrlinlrs, the lciiineil Singlc Iudge has quashed the crimes and calcniai crrscs in thc sar<l .jrrdgmt nt I l. In liri Jaganath Enterprises Eluru Vasadhi 'l'rioati Rao r'. 'l'he St rte of Andhra Pradeshs, a learned Sin;;k: .

lucige olthc lligh Cor- rt of Andhra Pradesh at Amaravti l:rcl also an occasion to d :al with the said issue. After refe r ring to the contentions of the r-espective parties therein, various provisions ol IPC, FSS Act, COTP Act and relying on the principle ard down in Anand lLamt hani Chaurasia3, Joseph Kurian ',. State of '.

2l KL..] Crl.P. No. t52 of 2D0&h ch Kcrala6, Sayycd Ilassan Sayyed Subhanl, M/s. Pepsico Inclia Itoldings (Pvt) Ltd., v. State of U.P.7, Sanjay Anjay Stores v. Union ol'lndia8, Boop Singh Tyagi v. Statee, State of Haryana v. Bhajan Lalr0 and Chidurala Shyamsubdera, the learned Singlc Judge has quashcd the FIRs / Calendar Cases. The learned Single Judge rel'erring to the law laid down in Chidurala Shyamsubtlerr held that despite the said authoritative pronouncement of larv, status quo continues. The said judgment attained finality. F.ven then, the police are registering cases against accused on the vcry same allegations lbr the very same offences.

i) Ret-erring to the provisions of Sections 153, ls8, 269,270, 21 1,272,273,284,328,353 ofIPC, the learned Jurlgc in Sri Jaganath Enterprisest held that the oflences registcred uncler the said Sections are not maintainable. It lirrther held that the provisions of the COTP Act can only be pressed into servicc in the limited circumstances only where there is violation ol Sections - 4,5,6,7 and l0 of the COTP Act. By referring to the principle o. t995 (l) scJ 277 ?. 201I (2) crimes 250 '. 2017 scc online Cal 16323 ' . 2ooz crl.L.!. ztl2 ro. r992 supp (l) scc 135

:l ^1..t ( rl.t'

^tt..l.t:

t,t )t))0 tl htth laid dorvn by tl e Apex Court in llhajan Lalr0 and M/s. Pepsico India lloklings (Pvt) Lttl.7, the lcarned Single Judge has quashed thc proceerlinss in virrious crinres i calendar cases. l2 Ant ther learned Single Judge of the High Court of Andhra Pra,iesl ai Arnaravati in !', Nageswara Rao r'. State of Andhra Prrtlc;hrr had also an occasiou to deal u,ith the saicl issue and agrecrl r yith the principle laid down in Chitlurala Shyamsuirtlera I3 In ! alved Hassan Sa1'vcd Subhanr, the A.

pex Courl while dcaling ,,rith legality of the order passed by thc B{)mbay High ('ourt in a batch ol climinal writ petitions ard criminai applieations, u rir:h '"vere liletl chalienging the registra ion of FIRs for thc olttnce , uncler Sections - 188, 272,273 and 32ti c,f II)C and Sections - 16 a rd 30 of the FSS Act where there is an rrliegation of transportation rrrd sale of' Gutka / Pan Masala etc., t r:id tltat the judgnicnt c,l Brmbay Iligli Court is contrary to the provisrons of the Act an<l la'v laid down by it. With the said findirrg. the Apex Court reuritter the matter to the Bombay High Cotrrt for fresh 'r. 2020 SuprL-r)rc (A ,) .

l-i KI,,J Crl.P. No.l52 of 2020 & barch consideration on thc issue tltat whcther the aforesaid offences are made out in the FIRs, u'hich irre sulrject matter of the cases pending before the Bombay lligh CoLrrt [4. ln view ol'the autlroritative pronouncement of law in the aforesaid judgments, as cliscussed above, coming to the facts of the cases on hand, the allegations against the accused in respective cases are transporlation, possession, storage, sale and purchase of banned products vr., tobacco / tarr.rbaku / gutka i khaini I zarda I pan masala etc., respectively.

In Chidurala Shyamsubdera, the learned Single observecl that transportation of chewing tobacco or khaini or pan masala do not constitute an offence punishable under Section - 270 ol IPC and that manufacturing of pan masala is not included in Section - 273 of IPC and, therefore, the same is not an offence since it is not a noxious fbod. The learned Single Judge has further observed in the said judgment which is as under: "....The act done by the petitioners i.e.

l(r KL .i ( r/r, \, /.i- t t :.t):t)tl httLl) are ronsumed by humalt being. it rvoLrld cefta nly cause datragc to the heulth.

1'her:fore, transportation ol' khaini or ch.:ri itrg toba( co is not by ilself is not att otTettce utttier Sect:on - 270 of IPC anil it u'otrltl liill ',vithin Sect on 270 of lPC."

15. Sect oi - 272 ol' IPC rrrakcs pLlnisllablt irrr clli:rrce by a person, wiro ad rlterates any afticie of'tiroci ol rirink. Thc'refore, the said section \ ould only conrc lllto play il' Ibod ,rr drink is adulterated. Tlrere is no deflnrtion of 'arltrlteration' irr lPC. The detinition of 'a lulterant' is tbund in the plovisiols r.lt re FSS Act. Section - 3 (1) (a) of the FSS Act rleals rvith 'rdrrlterant' which means a mater ial .vhich could maki: thc 'looc' rursll-' or- substandard or mir -branded. According to Section - 272 ol lPC, if a material is ust d to urake the fbod unsafe/su b- sta nd rrr I or misbranded, then rnly the off'ence would be attracted. lVhereas, as discussed supri , the allegation in the present batc h of cu:res is with regard to trans roftation, possession, storage, sale and prrrchase of banned produc"s vr., tobacco i tambaku i gutka i khairri I zarda I pan masala et(., respectively. Thereforc, accor(ling to this Cour1, the said alle.qalic,n rloes not tall rvithin thc antbit ol Sect ln - 212 of

KL,J Crl.P. No.l52 o/ :80 & bnt.h IPC. Therefore, I agree with thc principlc laid down by thc learned Single Judges of the High Court of Andhr-a Pradesh in Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V. Nageswara Raoll.

16. In Joseph Kurian6, the Hon'ble Suprerne Coirrt held that for Section - 272 IPC to be attracterl. the fbllorving should be present. (l) That the article involveci was fbocl and drink meant to be consumed by live persons; (2) that thc accused aclulteratecl it and the adulteration rendered it noxious as a 'food or drink', (3) that the accused knew at the time of aclulteration that he u,ould sell the article as food or drink and kner.v that such article cannot be sold as food or drink. The Hon'ble Supremc Courl clearly held that the offence is completed on the introcluction ol the adulterant. 'Adulterant' would mean that a material which is rnixed to make the 'food' unsafe or drink unsaf'c. In the present case on hand, tobacco is not a food or drink ancl what is statcd to be mixed in it is not clearly established by any cogent ntaterial as an 'adulterant' for the oflence under Section - 212ll'jC to be pressed into service.

Ki...t t i ,' \, l.

,)) -t11t1 ,l hntrh I 7. ,,\s fl r as Section - 328 ol IPC is cottcei'nctl. rr the sanrc jLrdrnrent it ri,as helcl as follows:

" 10. In oldcr to prove offence under Section 328 the prt,sct rrtrorr rs rctlLrircd to p ove that the substance in question was it p()1sor . { 'r- ilr,v stupefving. i rtoxicating or unwholesome drug etc. tlral rhc ur cusrrtl rdninistcrcd thc substance to the cornplainarrt ,)r calr\c,l thc conrpl:rinant to take such substance, that he did so with r l,.rnt i() caLrsc hurt or knorvirrg it to be likely l9 that he woultl thcrcl' y cau;c lirirt. t',i'*itl.r thc intcntion to commit or facilitate llrc ci.lr:;ir ::.,rcri .rl' ar olJ-encc. t is, therefore, essential for the prosccution o pro,,c that the accl sed was directly responsible for adrrinistcril I ,ois,.,n etc. or causi:.g it to be taken by anyperson, through anolhcr.. ....' Tobacco does r ot fit into this definition.

lll. Sect on -273 of IPC deals with sale of a noxi,) rs lbod or cirink, and as )er which, whoever sells, or oll'ers or' ,.: pcr:,c:; Ibr sale , as lbocl o' drink, any article which has becn ren(l,:r'cd ()r has beconre noriot s, ol"is in a state unfit for lbod or drink. \ )ovriug or having reason .o believe that the same is noxious as It o,.l or drink, shall be punislred rvith imprisonment specified thercir. l hcrefole, if a pc'rson ()f13r's for sale a "food or drink" any articlr lvhrch has bccome uoxious or is in a state of unfit for "foori or dlirrk". Thusthe said sectic n would apply, when an afiicle rvhicir lrirs trecome

Kt .t Crl.P. No.l52 ol 2020 & tultch noxious or which has been rendered noxious. [t also applics to food or clrink only. As held in Sri Jaganath Enterpriscss, the word 'noxious' is not defined in IPC or in FSS Act. As per the dictionary meaning, the word 'noxious' is harmful, dcleterious, injurious, poisonous etc. As stated above, the allegation in the entire batch of present criminal petitions is with regard to transpo(ation, possession, storage, sale and purchase ol banned products lrz., tobacco / tambaku / gutka / khaini I zarda I pan masala etc., respectively. Therefore, according to this Court, the contents ol the complainVcharge sheet lacks the ingredients of Section - 273 of LPC.

19- 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 public servant, the public servar)t mlrst have the lawful authority to promulgate the order; thc person floirting the same should have knowledge about the ortier directing him to abstain from the act; he must disobey the said order with the knowledge; and such disobedience o1' the duly promulgated order should cause a danger to the human lit'e etc. In

.1() KL"I Crl.P. No.l5,t ,t 202t,<l hotch Boop Sinuh 'l-ragi" a I)ivision Bcnch of Allahebad tigh Court heltl th.rt riglrt o pxrrnulgatc the ordinance/order is also an issue which is [1:irrg raisccl. becausc under the FSS Act, the Corrn.rissioner 11'[;ood Sat-ety alone has the authority 11', pass the ortlcrs onlr,' if'tlre article of 'tood' can causes danger or is injurious to Ircaltlr

20. In N T. Rama Rao v. The State of A.P., rep. by Public Prosecutor'- r,hile dealing rvith the offences under Sectrons - i88 ancl 28i rrl ii){1, the learncd Single judge of the conrbined High Cor"rrt of ,\ndhra Pradesh held as under:

"5) Even if the allegation that the petitioner ccn luctc,tl plrblic meetings at three roarl j unr tions contrary to the permission accorderl for -'onducting of a public meeting only at on,: spe:itierl place is true, such a direction under Sec ion J0 of the Police Act, 1861 could hav: bcet given only by the Superintendent or th3 Ass istant Superintendent of Police of the Dis .r'ict irut rlot by any of their subordinates. i f' suc r a pennission is granted under Section 3J ofrhe Police Act, 1861 and is violated, Section l9j (1) (a) of Code ol Criminal Procedure r2. Crinrinal l'!-titiol No.5:i23 of2009. decided on 17.09.2009

]I KI..I Crl.P. No.l52 of2020 & batch rnandates tlrat tlre con.rplaint in this regard has to be nratlc by thc public setwant concerned or solne other person to whom such a public servant is adrn inistratively subordinate to enable any' Coufl to take cognizance of an off'cnce uncler Scction I 88 of Code of Crirrinal Procetltrre. [n the present case, the charge sheet was llletl by the Sub Inspector of Police, who could not have been the authority to grant pennission lor the public rneeting and therelore, the cornplaint/charge sheet is in violation ol'the rnandatory provision of Section I 95( I Xa) ol Code of Criminal Procedure.

6) That apart, the offence alleged to have been cornmitted under Section 283 of the Indian Penal Cocle by the petitioners and others is ohviously in consequence to the alleged off'encc under Section 188 of Indian Penal Code and is not an independent of the same.

Even otherwise, the conduct of public rneeting at three road junctions or obstruction to the tralfic 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 concemetl, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak

ll dl..l I rl ,' .t., i.

,), :t):t '\ bttt(h abou. the tralflc jarn caused by tlte road shorv. But, when the conduct ol'the public r.neeling at least at one place has becrr pennittcrl and if the gathrrring for that public ureeting resulted in any rncoliveniencc by rvay ot'obst[uriilrg ihe traffc, the salne cannot be considered to [re rvith necessary guiity lrtvr,r rc.i to coristrue the exisl:nce of an otTence punishablc r.rnder lndian Pent I Code. Undc-r' thc cilcurnsla ne es. none oI the , rfl'ences alleged can be saicl to hare any reasonable basis anri in any view, the corn ,aint/charge shect heing in violation ol Secr on 195 ( I ) {a) of' Code of Crirninal Proc:dure, has to fail.

7) As the complaint has failecl clue to its unsr stainability, the proceedings in their entirety have to lail. though the l"r accused alon: approaclred this Cour-t by way of this Crin rinal Petition."

21. [n "hota Chantira Sekhar v. 'Ihe State ol' Andhra Pradesh, thro rgh S.H.O., P.S. Illuru Rural, West Godavari Districtt3. rvhe ein by relying cn various judgments including N.T. Rama Raor2 arrd also the guidelines laid down by the Apex Court in Bhajan Lal 0 rnore particularly, guideline No.6, rvhicl', says that rr. Crinrinal Petition .Jo.l5l48 of20l6. decidecl ,rn 26.10.2016

KL.J Crl.P. ,Vo.l5: ol )U0 & hdtch where there is an cxpress legal bar engraltecl in any of the provisions of the Code or the conccrned Act (under which a crirninal proceeding is institLrterl) to thc institution and continuance of the proceedings and/or whcrc tlre re is a spccific provision in the Code or the concerned Act, providing efticacious lcrredy to redress the grievance of thc party. it was helcl thal the proceedings in the said C.C. were quashed by exercising por.r,er under Section - 482 of Cr.P.C. It was also turther hcld that the ploceedings shall not be continued due to technical defect of obtaining prior permission under Section 155 (2) ol Cr.P.C. and taking cognizance on the complaint flled by V.R.O. and it is against the purport of Section - 195 (l ) (a) o1'Cr.P.C.

22.

Vide Notitlcation No.50l/FSS-l/2020, dated 06.01.2020, the Commissioner of Food Saftty, 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

Kt..i t ti \, /i , ,,.r//,/ .t /).r!/l tobacco, khaini kharra, scented tobacco / t'lavoured tobacco or bv whatcver r-rame locally it is called packed in saclicts pouches / package in the :ntire Stage of Telangana under [iSS A,:.. 2006. It is lbr one yee r. Vide Notification No.505/[5S- 1,.0.] 1 . datcd 06.01.2021, the same was extended for one mc)re )'ear. ,\s pel the intbrmation ftrnished and instructions reccived, s:r'cral writ petitions were filed challenging the said Notiflcations [-,etbre this Court as rvell a i the Hon'ble Supreme Court. A l)ivisi,rn Bench of this Court decl ned to entertain some rvrit petitions on the ground that thc Hon'ble Supreme Courl seized of the said issue. It is also rclevant to no13 that the Hon'ble Supreme Court le rr airde d back the matter to tt is Court.

Therefore, such a notiflcation cirn c,nili be issued tbr eme gcncy situations and for prohibiting thc drstribntion and sale ofanl a(icle ofa food cannot be lost sight ol 'fherefbre, in vier,v of the aw laid down in the above judgments irc:lucling the judgments ir Chidurala Shyamsubdera, Sri Jaganath Enterprisess znd V. Nageswara Raorr. Accorrling to this Couft, Sectiort - 188 ol IPC will not attract to the allegatrons ;eveied against the pet tioners herein in this batch of criminal pititions.

KI.,J Crl.P. Nt).1, !)l 1D0 & hatch

23. As Iar as Section - 328 of IPC is concernccl. it rleals rvith causing hurt by means of poison, etc., with intent to c()uutit arr of-lence. As per the said provision, whoever aclmin istels to rrr cituscs to be taken by any person any poison or any stupelvirrg, intoxicating or unwholesome drug, or other thing with intent to causc hurl to such person, or with intent to commit or to Ihcilitatc the comrnission of an offence or knowing it to be likcly that he rvill thcreby cause huft, shall be punished with imprisonment ol eithcr dcscription for a term which may extend to ten years, ancl shall alscr be liable to flne. Therefore, there should be administering poison, intoxicating etc., with intent to cause hurt to such person or rvith intent to commit or to facilitate the commission ol an off-encc or knowing it to be likely that he will thereby cause hurt. As stated above, the allcgations in the entire batch of criminal petitions are lacking. Therefore, according to this Court, the contents of thc complaints / charge sheets lacks the ingredients of Section - 328 of IPC.

.r6 Kl'..t Crl. r'. N t.l 5 ' tt 2D)rt <\ hrrch l-1. As li r as Sectior) - 336 of IPC is concet ned. it r.leals with an act cnrlange rirrg life or personal safety of others, ittld .ls per u'hich. r,lxrcv( r (locs any act so rashly or neglig(rn tly as to e n(iange r hunri n iif'e or thc personal safety of othe's, shall be pLrnishcd *,lth rmpnsonrncnt ol'either description lor a tt:nn u,hich rna1, extcncl to hrcc rnonths, or with llne which nray e).lcnd to tlvo liundred and ti tv nll)ees, or'"vith both. In the complaints I charge sheets. therc is ntr such allegation of rash and negligeru act which err<.1angc-rs hr.rn an lil'e or personal safety of others. .l'herelore, according to tlris ('ourt. the contents of the complairts / charge shccts lacks tht ingredients ofSection - 336 ofIPC.

15. ,\s 1rr a-. Section - 420 of IPC is concerned, ir deals with Cheatin-e ancl r iishonestly inducing delivery of propeny. There is r.ro such induce rent either at the inception or at a later iti.Lge. Thus, the cr)nteuls o'cornplaints / charge sheet lack the ingledients of Section-420cflPC.

2(r. .4s rar as Section - 269 of IPC is conccrned, it deals with negligent act I keiy to spread int'ection ofdisease dang:r,tus to life,

KI.,J Crl.P. No.l52 of2020 & b t and as per r.vhich, rvhoever unlawtirlly or negligently docs any act which is, ancl s,hicli he knorvs or has reason to believe to be, likely to spread thc inlcclion ol'any clisease dangerous to lii'e, shall be punishcd with imprisonnrent of cither description for a term which rnay extencl to six r.nontl.rs, or with fine, or with both. But, a perusal ol- the contcnts o1- corrplaints / charge sheets in the present batch ofcascs, such ingrcdients are lacking and, therefore, Section - 269 ol- IPC docs nnt arise in the present batch ofcases.

27. Irr vicrv ol'the abovc saiil discussion, according to this Courl, transportation, possession, storage, sale and purchase of tobacco products ale not totally banned in the State of Telangana and also in the Country. 1'herefore, it cannot be said that Sections - 269, 27 0, 2'/ l, 21 2 and 21 3, 328, 336 and 420 of IPC are attracted to the cases in this batch.

28. As firr as the offences under FSS Act is concerned, as already discussed above, in Chitlurala Shyamsubdera, the leamed Single Judge lbllowing the guidelines laid down by the Hon'ble Supreme Court in Bhajan Lalr0 held that the police are

.rs KL,,J t rl ,' \ l:. ,tt :02t) 1l bat(ll incompctent to Lake cognizance of tlie ot'fbnces l)unistr:lble under Sections - 54 z n<l 59 (1) ol the FSS Act. invcstigating into the offences along.vith other otl-ences under tlrc provisions ol'the IPC. It rvas lurther i:eld that filing chargc shect is a grave i legality, as the Food Saf'et, Otficer alone i-. c(rrnpetent to iirvcstiqate and to file charge shee i fbllowing the Rules laid dorvn under Sections - 41 and 42 oi FSS \ct. in the prescnt case, the police have fegjstered the crirne for tre offences under Scctions - 11i8.270 and273 of lPC. Therefor e, in the presenl batch of eases. enten.aining the complaints / fil ng the charge sheets by the police is contrary to the principle laid d lwn in Chitlurala Shyamsubder{.

29. Wi h regard to the otl'ences under COTI) Act, it is relevant to rnention the objects and the reasonl of tbc said Act itself clearly strLte that the act is rreant to prohibit thc a<lvr:rtisement of, and to prov de tbr the rcgulation ol trade ancl cornrrcrce in, and production, su1 ,ply and distribution ot, cigarettcs and oth,:r t,)bacco products and fi,r matters cr,rnnccterl thcrer.vith or incide nral thereto. A reading ol t re said objccts ol'the said Act rvould rt:i'eal that a total ban of totacco products was not envisaged by thr: said Act.

.19 KL,J ( rl.P. No.l52 ol 2020 & horch The Parliament merely l'elt it expedient to control the advefiisement and sale ol'tobacco products. As noted carlier in the order, Section - 3 (p) o1'the C() l'P Act and thc schcdule therein define tobacco products. Pan nrasala, er.rtkha ancl chewing tobacco are included in the definition ol tobacco proclr"rcts. Scction - 5 of the COTP Act deals witlr prohibition o1'advertisernent ol cigarette and other tobacco products only. No person, r.vho is engaged in the production, supply or distribution ol cigarcttes or other products shall advertise the same. Similarly, no 1rerson having the control over a medium can advertise cigarcttes or tobacco products, and no person shall be a paft ofany aclvcrtisement.

30. Section - 7 of the COTP Act deals with the imposition of restriction on the sale, trade, commcrce of tobacco products unless every package ol cigarette or tobacco product contains a specified warning (pictorial or othenvise). Section - 4 of the COTP Act, bans smoking in public places. In addition, Section - 6 of the COTP Act, prohibits thc sale of cigarettes or other tobacco products to a person who is undcr the age ol I8 years are in an area within 100 yards of any educational institution.

Kl t { tl \,' l:

,'lt):t .'1 hittll

31. A re rding of this Act, particulally Scctions - .1 5. (r and 7 clcarly shows that there is no gencral ban or gt'rtetal prohibition on the uranufar turelsale of tobacco products. 2l What is barrcd is mcrcly the sale of these products to a pel'son, rvltt, is ltcl,.r ur, tlte age ol' l3 'r,'ears ard in an area within l0C ..'"ards {)f iiii i'tiuciltional institution. Tlr,; other aspects covered by,r Sections - 5 ;rrr'i 7 ol'thc: COTP Act, dei I with the advertisement and thc rvarnirrl n,hich is to be coritaine I on a package, in wirich the tlbiiccc lrrorlrict is packcd. -I his is a regulatory mechanism only. 'l hcrcfbr,:. accolding to this Court the above said allegations tif tlarrsp(rtiitir)n. possession, sto 'age" sale and purchase of banncd to1)at r:r, products r.vill not attract fhe offence under Section -7 of thc f'(l'l-| \ct.

32. As I ar as Section - 20 (2) of the COTP Act i ; conr:crned, as stated abovr :, the allegations against the pctiti()ncl ir respcctive cornplairrts / charge sheets are that they \\ erc lranspollmg, possessing, st()ring, selling and purchasing thc banrie,l t,tltacco products to tl e customers illegally in order to ga n wlongtul plofits. ln vie v of the said allegation. it is apt tc, re ler ic, Scctior.r -

4l KL,.J Crl.P. No.l52 o/ 20){) <& borch 20 (2) of the COTP Act for better appreciation of the case and to decide the issue in question, and the same is as under: "20. Punishmcnt for failurc to give specified warning antl nicotine and tar contents.

(l)...

(2) Any person who sells or distributcs cigarettcs 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 line which may extend to one thousand rupees, or rvitlr both, and, for the second or subsequent conviction, with imprisonment for a term which may extcnd to two years and with fine which may extend to thlcc thousand rupees."

33. Thus, Section - 20 of COTP Act deals rvith punishment lor tailure to give specified warning and nicotine and tar contents. But, in the complaints / charge sheets, there is no allcgation against the petitioners that they were calTying on trade or cotnmcrce tn contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contcnts of the complaints / charge sheets lack the ingledients of Section - 20 (2) of the COTP Act. Even, there is no allegation that

4Z K t...t ()'/ ' '\" /'

) )t)'t I l)Itt'il the seized prod rcts do not contain labels with statutot )' warning. 'l hus. r'egislelir g thc crimes tbr the said offence rr-sainst the pctitioners is nr t nnly contrary to Section - 20 (2) of ,llO'II' Act, btrt also contr rrv to the plinciple laid down in Chidurala Shlirnrsubdu'{. ln vierv of the same, the offence undt:r Sectioti - 20 (2) ol'CO-l P Act is also liable to be quashed lgainst the petitioners. i cnce again reiterate that I agree with tlc principie laitl down by he learned Single Judges of the Fliglr Court ol A-nclhra Pradcs r in Chidurala Shyamsubdera, Sri .Iaganath Enterprisess an J V. Nageswara Raoll.

3+. For the loregoing discussion and the a.rthoritative prtncrple trl liirr. t'riminal Petition Nos. 3768, 3379,40,16,4011 , 4098, 4099. 4100, 4102, 4141, 415t, 4157, 4182. 4187, 4241, 4249. 4251, 4:5s, 4262, 4277, 4405,4415, 4542. 46t5, 4640, 4681, 4121 .41 75 and 4825 of 2021 are allowed qrLashing the proceedings agl inst the petitioners therein in the respcctir c clirncs mentionetl therc in. Since the proceedings in the albrcsa tl Clinrinal Petitions arc rluashed against the respective pctitroners, the respectrvc Staticn House Officers I Investigating Cliicers ale

.13 Kt .t Crl.P. No.l52 ol'2t)20 & hatch hcrcby directed to retLrnr the seizcd property / vehicles on proper idcntillcrtion ancl i,erillcation of ownership under clue acknou lcrl{nrcnt.

i5. Fuflhcr. Crinrinal Petition Nos. 152, i53, 155, 162 & 5826 o12020, 3498, i500, 3509, 3514,4070, 4110,4119, 4140. 4178, 4194. 4216. 4230. 4361, 4612, 4622 and 4632 of 2021 are also allou,ed quashing the proceedings against the petitioners therein in the respective Calendar Cases mentioned therein. Since the proceedings are quashed, the respective petitioners are at liberty to file appropriate applications before the concerned Magistrate lbr return of the seized property / vehicle and the Magistrate shall consider the same in accordance with law. As a sequel, miscellaneous petitions, if any, pending in all the Crirninal Petitions shall stand closed.

K. LAKSTIMAN, J osrttJULY, 2o2l Note: L.R. copy to be marked.

(B/O.) Mgr

.14 KL.J ( rl Ir N'.l 5I q )lDt) & balch