Syed Ather , Khalleed v. The State Of Telangana

l I s2s1 ]

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

I\,,IONDAY ,THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO: 10073 OF 2022 Between:

1. Syed Ather @ Khalleed, s/o Syed Syeed lVlohammed, Aged about 44 years, occ. Business, rlo H.No.14-2-211, Shahinayathgunj, Begum Bazar, Hyderabad. (A-1)

2. Shaik Turab Ali, s/o Late Hameed Ali, Aged about 38 years, occ.Worker in Taha Chaliya Stores, r/o H.No.19-2-23lM/4/8, Kalapather, Vattapally, Hyderabad. (A-2)

3. Syed Imran, s/o Syed Babu Jani, aged aboul24 years, Occ. Worker in Taha Chaliya Stores, r/o Near Bilal Mosque, Jhirra, Tappachabutra, Hyderabad. (A-3)

4. Mohd. Hyder @ lVohd. Hyder AIi, s/o late li4ohammed Ali, Aged about 57 years, occ. Salesman Taha Chaliya stores, r/o H.No.22-8-73, Yousuf Bazar, Chatta Bazar, Mirchowk, Hyderabad. (A-4) ...PETITIONERYACCUSED Nos.1 to 4 AND The State of Telangana, through S.H.O Police Station Mangalhat, Hyderabad, rep by Public Prosecutor, High Court, Hyderabad. ,..RESPON DENT/COMPLAINANTS 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 quash the C.C.No.43 4112019 on the file of the Hon'ble XVI Additional Chief Metropolitan Magistrate, at Nampally, Hyderabad, against the petitioners/Accused No.1 to 4 herein, for the interest ofjustice. l.A. NO: 1 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 pass an order, directing the Hon'ble XVI Additional Chief

Metropolitan [,4agistrate, at Nampally, Hyderabad, to release the seized permissible tobacco products in C.C.No,434-ll2019 (F.l.R.No.2g7l 2018 dated: 21-12-2018 of Police Station l\,4angalhat, Hyderabad), i.e. 66 tobacco sachets by named Goa 1000 each packet contains 65 sachets and as well as seized net cash of Rs.58,6001 and handover the same to the petrtioner/Accused No.1, pending disposal of main Crl,P. in the interest of justice. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri S CHANDRASEKHAR ,Advocate for the Petitioner and- of the Additional Public Prosecutor on behalf of the Sole Respondent. The Court made the following: ORDER

Crl.Petition No.10073 of 2022 !

I THE HONOURABLE SRI JUSTICE K.SURENDER CRI INAL PETITION No.1Oo73 0F o22 ALO NG WI H I.A.No.1 of 2o22 coM MO N ORDER:

This Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P'C''), is filed by- the petitioners to quash the proceedings against them in C'C'No'4341 of 2019, pending on the file of XVI Additional Chief Metropolitan Magistrate at Nampally, Hyderabad.

2. The petitioners herein are the acc-used Nos'1 to 4 in the said crime. The offences alleged against them are under Sections 188 and 273 of Indian Penal Code (for short "IPC) and Section 2O(2) ot 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)'

3. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the respondent. Perused the record. 4.

Perusal of the record would reveal that the lis involved in this case had already been dealt with by this Court extensively vide \

Crl.Petition No.10073 of 2022 common order dated 05.07.2021 in Crl.P. No.152 of 2020 and batch which was reported in Mohd. Jameel Ahmed v. State of Telanganal and also vide common order dated L0.06.2022 in Crl.P.No.5619 of 2020 and batch.

5. Therefore, this Criminal Petition is allowed quashing- the proceedings in C.C.No.4341 of 2019, pending on the file of )0/I Additional Chief Metropolitan Magistrate at Nampally, Hyderabad, in terms of the common order, dated 05.07.2021 passed by this Court in Mohd. Jameel Ahmed (Supra) and also common order dated 10.06.2022 in Crl.P.No.5619 of 2020 and batch. 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 in 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.

| 2022 cr,u 642

I Crl.Petition No.10073 of 2022 l

7. The copy of the common orders passed by this Court in Criminal Petition No.152 of 2020 and batch on 05.07.2021 and also in Criminal Petition No.5619 of 2020 and batch on 10.06.2022, shall form part of this order.

As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition stand closed.

II SD/.N,SRIHARI ASSISTANT BEGISTRAR .r"rr*'orr'"=* //TRUE COPY// To 1 . The XVI Additional Chief Metrooolitan Magistrate at Hyderabad

2. The Station House Off icer'

-Ma-riqalhat PolLe Station' Hyderabad'

i o"""Cc. sRt. s cgRuonnsExHRn' Advocate loPUCl 4 Two CCs to the pUBLtC pnbSE-CUiOn, High Court for the State of Telangana at HYderabad [OUT]

5. Two CD CoPies SB I

HIGH COURT DATED:19 t12t2022 II I

ORDER

CRLP.No.10073 of 2022 ( 1HE S 14 \ -),) ,J 3 0 JAll 2[n {'.

rlj-?:

ALLOWING THE CRLP WITHOUT COSTS /h \4,/ \,2

IION'BLE SRI .IUS'I'ICll K. LAKSHMAN CRTMINAL PETITION Ncs.5619, 5538, 6421 OF 2O2Ot 6926 736t 739L 7455 7543 7473 788s 81 16 8461. 8716. 8998. 9020, 9044. 9053. 9065, 9068. 9071. 9072, 9073,9a77.9079.9095, 9098, 9099,, 9101, 9105, 9LO7, 9LL2. 9LL6. 9L2L, 9L24, 9143, 9ts3, 916a, 9205. 9226, 9252, 9256, 9264, 9266, 9294, 929A, 9339, 934L, 9343 9368 946L 9489 9518 9s34 9587, 9599, 9629,96s1, 965s, 9753, 9759, 9764, 9744. 9793. 9864. 10195. 103!.1& 1!31,4 OE 2Q21 AND_!Q8, 469, 471,537, 559, 574, 598, 606, 615. 627,759,776, 777, 743, 748, 947, 1131, 1L4L, tL92, L205, 7206, 1369, L472. L606. L75L, L756. L772. La53, La54, 1a63. t934. 1944, 2oo4. 2042. 2047, 2050, 2ts4. 2376. 2432, 2433. 2635 254A oaae 276a ,a.oo , 2823, 298L-3O4O, 3093, 3094,3110, 3233, 3290, 3297, 3362,3373, 3378, 3386, 3543. 3673,3758, 3769. 3824. 405s. 40a7. 4103. 4to4 4LS4 +3.22 4323 & 4586 0F 2022.

COMMON ORDER:

All these Criminal l)etitions ale li led b.,, ,5. respective petitioners under Section - 482 of the C'oclc o1- the Clriminal Procedure, 1973, to quash thc ptrceedings in the rcspective

KT-,J Crl.P. No.5619 o[ 2020 & barch Crirnes/Calendar Cases/Sessions Cases registered lbr thc ol-fbnces under Sections - 188,269,270,272,273,328,336 & 420 read with 34, 149,51 1 of IPC; Sections - 3 (m), 20 (2), 2l (1), 21 (2), 22, 1

(3) and 7 (5) of the Cigarettes and Other 1'obacco Products (Prohibition of Advellisement and Regulation of 'l rade and Conrmerce, Production, Supply and Distribution) Act, 2003 (fbr shorl'COTP Act') and Sections - 58 and 59 (i) of the Food Salety and Standards Act, 2006 (for short 'FSS Act').

2. The nature of allegations in all thesc oll'errces relate tcr transportation, sale, possession, manufacture, sloragc. ctc. of tobacco products including khaini, zarda, pan uasala and othcr such allegedly harrnful and batmed products.

3. Heard leamed counsel for the respective parlies ancl learned Public Prosecutor appearing on behalf of thc rcsl'rotrdettts Statc, and perused the record.

4. Perusal of the record would reveal that thc li i irlvoivccl itr tliis batch ofcases had alleady dealt with by this C'ourt cxtcnsivclv vide commot.t order dated 05.07.2021 in Crl.P. No. 152 o1.2020 and batch ri'hich r,r,as t'cportcd as N'lohd. Jatnecl Ahrtrcd r'. Stalc ol

KI,.J Crl.P. No.56l9 o/ 2020 & hdth Telanganar. This Court in the said case by relying rrrr vrlri(rus decisions 01' the Supreme Couft explained and interpreted the relevant provisions with which the Petitioners herein are chargecl.

5. With regard to offences under Sections - 58 and 59 (i) oi the FSS Act, 2006 it was held by this Coufl that police cannot initiate prosecution and investigate the offences under the FSS Act, 200(r. The power to initiate prosecution is confbrred orrly on the Irood Sal'ety Officers appointed under the FSS Act, 200(r. Fur-thcr, lhis Courl held that 'tobacco' does not fall "vithilr thc dellnition o1- 'food' undel the FSS Act, 2006. Therefore, the Pctitioners herc-in cannot be charged for offences under Sections - 58 and 59 (i) of the l:SS z\cl. 2006

6. Fulther, in relation to the offences untler Sections - liiS,

269. 210.212,273,328,336 & 420 read with 34, 149, 5 i I of rhe I['C'. this Courl gave detailed findings as to horv thc saic] provisiorts do nr)t attmct merely because tobacco products rr'cre being solcl. translx)r'tcd, possessed, etc. This Court lelying on the tlccisions of' the Aper Court held that only the COTP Act, 2001 s'ill applt' in relation to oll-ences relating to sale, manulacture antl clistributiorr o[' ' :0:l c til.J 042

KL,J Crl.P. No.56l9 of2020 & b.ttch J tobacco products. Theref,ore, in light of this Court's decision in Mohd. Jameel Ahnred (Supra), the otlences alleged undel the IPC are not urade out against the l)etitioners herein.

7. In relation to off'cnces under Sections - 20 (2),7 (3) and 7

(5) this cour-t iu l\'Iohd. Jamcel Ahmed (Supra) had hcld as Ibllorvs:

29. With regard to the offences under COTP Act, it is relevant to rnention thc objects and the reasons of the said Act itself clearly state that the act is meant to prohibit the advcrlisement of, and to provide for the regulation ol trade and commerrce in, and production, supply and distribution of, cigarettes and other tobacco products and lbr nratters connected therewith or incidcntal thcreto. A reading of the said objects of the said Act rvould rcveal that a total ban of tobacco products was not cnvisaged by the said Act. The [)arliamcnt nrercly l'clt it expedient to control the advertiscment and sale of tobacco products. As noted earlicl in thc order. Section-3 (p) of the COTP Act and the schcdulc thercin clefinc tobacco products. Pan r.nasala, gutkha and chewing tobacco are included in the dcfinition ol'tobacco products.

Section-5 of the COTP Act dcals with prohibitiorr ot' advertisement of cigarette aud other tobacco prodr.rcts only. No person, who is cngaged in the production, supply or distribution of cigarettcs or otlrcr products shall advertise the same. Similarly, uo pcrson hai,ing the control over a tnediurn can advcftisc cigarcttes or tobacco products, and no pcrson shall bc a 1:ra rt ol'uny advertisement.

KL,J Crl.P. No.56l9 d 2020 & batc'h

30. Section-7 of the COTP Act deals with, the inrposition of restriction on the sale, trade, commerce of tobacco products unless every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Scc:tion-4 of the COTP Act, bans smoking in prnb[is places. ln addition, Section-6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of l8 years are irr an area within 100 yards of any educational institution.

3I. A reading of this Act. particularlv Sections-4, 5, 6 and 7 clcarlr,sho*'s that thcre is no general ban or general prohibition on the manufacture/sale of tobacco prorluc(s. 22 What is barred is merql-y the salc cl'thcse proclucts to r pcrson, rvho is belov,' thc agc of l8 vcars antl in an area lvithin 100 yards of an cducationaI institution.'fhc othelaspgg{q covered by Sections-S anrl 7 ol'lhc CO'fl' Act deal with the adverlisenren( and thc u'arning, which is to be containeri on:r yrrcli.agc, in rvirich thc tobacco lrroduct is t;acl<ct!.'firis is a regulator)' mechanisnr onh,. 'l'hcreforc. according to this Court. the above said allegations of transrrortation. possession. storagc. sale and irurchase of banned tobacco rrroducts u,ill not attract the offencc under Section-7 of the CO'I'P ,\ct.

32. As thl ers Section-20 of the COTP Act is concerned, as stated abovc, thc allegations against the petitioner in rcspective conrpla ints/charge sheets are that they were transporting, possessing, storing, selling and purchasing the banned tobacco proclucts to the customers ittegally in ortler to gain wrongful profits. In view of the said allcgatiorr, it is apt to ref'cl to Section-2O (2) of the

KL.J Crl.P. No.56l9 of 2020 & batch COTP Act for bctter appreciation of the case and to decide the issuc irr qucstion, ancl the same is as undcr: "20. Punishment lbr tailure to give spccifred warning and nicotine and tar contents.- ( 1) ...

(2) Any person who sells or distributes cigarettes or tobacco products which do not coutain either on the package or on their label, tl.re specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonurent for a tem, which may extend to one year, or u'ith finc which may extend to one thousand rupecs, oluvith both, and, for the second or subsequent coltYiction. with imprisonment for a term which nray extend to two years and with fine which may extcrld to three thousand rupees."

33. Thus. Scction-20 of Cl()-l'l' ,\ct dcals u'ith punishment for f:r ilrr rc lo give spccificd l arninc and nicotinc nnd tar contcnts. Ilut in the complaints/charsc shects. thcrc is no allcsation against the pctitioncrs that tlter ut're carrring on trade or comrncrcc in cotttrirbantl or atrt' otltcr totracco products u'ithout labcl and spccificd rvarning on the said Drod trcls. In vicx' of the sanre. the contenls ol'thc cornplaints/chargc shcets lach the ingredicnts of Scction-20 (2) ol tlrc COTI' Act. llvcn. there is no allcgation that thc scizcd trrodrrcts tlo not contain labcls rvith statulorr u'arning. 'fhtts. registering thc crinrcs for tlrc sai<l otlcucc against the rretitiorrcrs is no( otrlv contrarv to Scction-20 (2)

KL,J Crl l'. Mt56l9 ol 2020 & bor<h of CO'[P Act. but also cont!'il r'\, to I he p!'ilre iDle lairl down in Chidurala Shvamsubder l. In viov of the same. the offcncc under Scclion-20 (2) of CO'['P Act is also liable to be tlu:rshed against the petitioners. I once aqain reitcratc that I aqrcc $'ith thc principle Iaid down by the lear:retl Single Jutlges of the Iligh Court of Andhra Pradesh in Chidurala Shyamsubderl. Sr'!,.lasanath Entcrprises 2020 (1) ALT (Crl.) 215 (APHC) anct V. Nases$'ara Rao 2020 Supreme (AP) 348.

Therefore, in the present batch of the Petitions, there are no allegations which support thc ingreclie nts ol Section 7 ancl 20 of the COTP Act, 2003

8. It is relevant to notc tlrat in sonre ol the cases, the Petitioners were chargecl under Sccti()ns 2l and 22 of the COT'P Act,2003, and the said provisions arc cxtractcd bclow. "21. Punishment for srnoking in ccrtairr places. ( I ) Whoever contravenes tlre provisions of section 4 shall be punishable with fine which may cxtend to trvo huntlred rupccs. (2) An offence under this sectit'rn shall bc compounclablc and shall be tried surnmarily in accordance rvith tl.re procedulc plovided lbr summary trials in thc (irdc of (lrinrinal Procetlur-e. 197:l (2 of t974)."

KL.J Crl.P. No.56l9 ti 2020 & l>utclr li "22. Punislrrnent for advertisernent of cigarettcs and tobacco products. Whoever @ntravenes the provision ol section 5 shall, on conviction, be punishable- (a) in the case of first conviction, with imprisonrnent for a tenn wlrich rnay extcl.Id to two years or with fine which rnay extend to oue thousaud lupecs or with both, and (b) in the case ofsecond or subsequent conviction with imprisonment for a tenn which nlay extend to five years and with fine which may extend to fivc thousand rupces."

9. According to this Court, the ingredients of Section 2l of COTP Act, 2003 are not satisfied. There is lro allegation against the ln a Petitioners herein that they wefe smoking public placc -I-herefore, the Petitioners cannot be chargcd rvith Section 2l ol COTP Act, 2003.

10. Furlher, the ingredients of Sectiorl 22 of thc ('Ol'I'] Act' 2003 are also not attracted. There is nothing to suggest that the Petitioners in anyway advertised cigarcttcs atrcl othcr tobacctr products rvhich is prohibited under Section 5 ol-thc COII) Act. 2003. The allegations only pertain to transpotlatiou, salc, posscssiot], manufbcture, stolage and clo not irlclLrde advetl iscr.ttctlt

KL.J Crl.P No.56l9 of)020 & bur<h o1'such pl'oducts. Therefore, the Petitioners cannot be charged with Section 22 of COTP Act, 2003.

I 1. In view of the abovesaid discussior.r, all thesc Crinrirral Petitions except Crl.P. No.7455 of 2021 are allowed quashing the proceedings 1 the respective Crimes/Calendar CasesiSessions Cases in tcms of the common order, dated 05.07.2021 passed by this (lour1 in Mohd. Jameel Ahmed (Supra).

12. However, it is relevant to note that in Cr!. P. No.7.15-s o12021, the petitioner - accused was charged with Sections - 270 and 273 ol'the IPC and Section - 8 (c) read rvith Section - 20 (tr) ol'thc NDPS Act. The allegation against the petitioner in the said casc is iirai hc was iound in possession o1'tobacco products anti grrn-1:r. Therelbre, the said Crl.P. No.7455 of 2021 is partly allol,ecl antl Criiiie ir-o. 148 of 2021 is quashed as lar as thc ul'lerrr:c: Lrrrcier Sc'cticrns - 270 and 273 of the IPC are concerncd. 't he lnvcstieating Olllcer shall proceed with the investigation irr relation to the allegations and offence under Section - 8 (c) read u,ith Section - 20 (b) ol'rhe NDPS Act.

KL,J CrLP No.56l9 of2020 & batch llt

13. As thc proceedings in the aforesaid Criminal Petitions tITC quashed against thc respective petitionel's, the respective Station House Of ficers/lnvestigating Officers are hereby directed to return the scized property/vchicles on proper identihcation and verification o1- ou,ncrship under due acknowledgment. In cases u,herc charge shccts are alrcady filed the respective petitioners arc at liberly to filc appropriate applications before the concetned Magistlate Ibr rcturtr ol thc seized property/vehicle and thc Magistratc shall consider the same in accordance with law.

14. Ilou,ever. it is rnade clear that if the seized stock of tobacco products or othcr products are expired, the same shall bc destroycd by taking ltcrmissior-t frorn the concemed Magistrate.

15. t)uring tlic course of hearing, it was brought to the notice ot' this ('ourt that the learned Magistrates are receiving rernand of accuscd and scnding them to judiciai remand for thc atbresaid ofl'ences rvitltout going through the order clatecl 05.07.2021 passcd b1' this Court in Mohd. Jameel Ahrnerl. In vicu, ol'the sanrc. thc Rcgistrar (Judicial) is directed to circulate a copy ol'this ordcl ancl a ct'rpy olthe said orderdated 05.07.2021 to

KL,J Crl.P. No.5619 of2020 & bott:h lt all the Magistrates in the State of 'l-elangana tbr perusal and taking necessary action in the cases lelating to the aforesaid offences. As a sequel, n.riscellaneous petitions, if any, pending in the crirninal petitions shall stand closed.

i0'h Junc, 2022 K. LAKSHMAN, J Note:

Annex a copy ol'the order dated 05.07.2021 in Ccccccccccc rl.P. No.152 o12020 and balch. (B/O.) Mgr

KL,J Crl.P. No.l5) of2020 & batch IION'BLE SRI JUSTICE K. LAKSIIMAN CRINIINAL PETITION Nos.l52. 153. 155. 162 & 5826 0F 2020 AND 3498. 3500.3 509. 3514. 37 68, 3879. 4016, 4070. 4077. 409 4099.4100.

.1102.4110.4ll9. 4140. 4141. 4151. 4157. 4t78. 4182. 4t 87 4194,4216. 4230.4247, 4249. 4251. 4251t. 4262. 4277. 4361,4405,4.115. 4542,46t2. 461s.4622.4632 .4610.4681.4727. 4775 & 4825 0F 2021 COMMON ORDER:

All the above Criminal Petitions are filed to quash the proceedings against the petitioners - accused in respective Crimes / Calendar Cases. The details of relevant Crimes / Calendar Cases, offences alleged, nature of offences etc., are rnentioned in the following tabular fornt:

Offences allegedly comrni(ted Nature ofoffence sl.

No Crl.P No.

Crimc No.

Accus€d Number 2'12, 273 tPC & 20 (2) rlw 1(2) of COTPA 0l 37 68i)t 2l'1120 of PS Manoharabad sole accused Transportation of Amber tobacco 3879t2t 33/21 of PS Kadam sole accused 270 &273 tPC Sale ofbanned tobacco products 03.

4046t2t 78/21 of PS (T) Adilabad At &2 -doSale ofgutkrtobacco illegally in godown 0,1 4011/)t 2l/21 of PS Easgoan sole accused -doPossession ofgutka /tobacco in pan shop 05.

4098/21 l8s/21 of PS (T) Nirmal Al ro3 270, 273 tPC & 20 (2) ofCOTPA Transponation of prohibited gutka I 4099t21 No.36l21 of PS Koutala sole accused 270 &273 tPC Possession oftobacco products in the house .1l00il1 No.38/21 of PS Easgoan sole accused 2'70 & 271 l,C Possession ofbanned gutka & other tobacco items in pan shop 336, 273 & t88 IPC & 59 (i) of F'SSA 'l ransportation and sale ofprohibited tobacco products 4t02/21 455/21 of PS Kukatpally sole accused 08.

.+ KL J Crl.P. No.l52 of2020 & batch 270 & 2'13 tPC & 2o(2\ rtw 7(2\ of COTPA 0g 4 t4U2t 45121 of PS Cltiragpally Al to 3 Transportation of tobacco producls 272 &.273 rPC & 20 (2) ofCOTPA Storage of tobacco products for sale t0 4t5ll21 198i21 of PS Choutuppal sole accused 272, 273 & 128 rPC&20(l)&7

(3) ofCOTPA Puchase and sale of prohibited tobacco products 4157 /21 134121 ol- PS Chityal (Nt-(;) Al to4 4182t21 74121 ofPS Raghunadhpalem Al &?

270&213 tPC Transportation of banned tobacco/gutka t2.

202i21 of PS (T) I Mancherial I ll.

4t87t21 sole accused -doPossession of bamed tobacco products 4241/21 6l121 of PS ll 'l'ou,n Adilabad sole accused -doPoswssion of barmed gutka products 15.

4249121 101/21 of PS I 'Iorvn Adilabad At&2 -doSale ofgutka and tobacco products t6 42512t 90/21 of PS I 'l'own Adilabad solc accused -doAbout to transport noxious gutka and tobacco producls 9ll21 of PS I Town Adilabad sole accused {oSale ofbanncd gutka and tobacco produats ti.

l0?/2t of PS I I Town Adilabad I l8 4262t21 Al &2 -doTransportation of gutka and tobacco products t9 42't't /21 162/21 of PS Abdullapurmct Al to3 t88, 212, 2',73 & 328 IPC Sale of bamed tobacco (taulbaku) products in lorry 20.

4405t2t 202121 of I'S I Town Nalgonda sole accused 188, 272 & 273 IPC Transportation of gutka/tobacco products 2l 44l5t2t 212121 of PS ll

(1) Nalgonda sole accused -doPossession ofbanned gutka /tobacco products r88,269,270, 213 rlw 34 IPC & 3ofEDA&51 (b) of DMA 2) 4542t2t 87i21 of PS llt (T) Kothagudem Al &2 Possessior oftobacco products in kirana shop 4615/2r 225121 of PS Nirmal Town A1 &2 270 & 213 tPC Possession of prohibitcd tobacco products for sale 4640/2t 89/20 of PS Mamada AI -do- riw 34 IPC Transportatior of banned tobacco/gu1ka pockets 24.

468t/2r t86/21 of PS Pcddavoora N 328 r/w 511, 272 & 2't3 rPC Possession ofbanncd gutka & tobacco products in kirana shop Transponation of cigarette or othcr tobacco products without valid license 26.

4'7 2',7 t21 164/21 of PS Adibatla A2 270, 272 & 277 IPC & 20 (2) of COTPA 4715/2t 234121 ol PS I (T) Nalgonda Al to4 328,272, 273 & 188 tPC Sale ofgutka & khaini 4825i21 245/21 of PS Khamnam (R) Al &2 328, 270 & 273 r/w 5t I IPC & 20

(2) ofCOTPA Transportation of barmed gutka

) KL.J Crl.P. No.l52 of202() & batch CALENDAR CASES 152/20 3515/19 of I-AJMFC, Warangal A2 270, 2',13 & 188,420 IPC & 58 of FSSA Transportation of banned zarda products l0 l53i 20 2724/19 of XVII ACMM, Hvd.

A2 2',12 &. 273 IPC & 59 of FSSA,2OO6 Sale of zarda illegally 3r r55t20 3518i l9 of I-AJMFC, Warangal A3 420, 210 & 273 IPC & 58 ofFSSA Transportation of banned zarda A2 272, 273, 336 & 420 tPC & 20 (2) of COTPA t62/20 4'73'7/18 of XI AMM, Sec.bad Sale ofprohibited gutka and chewing tobacco products 32.

Special Magistrate of tI Class, Jaetial Al &2 188, 270 & 273 tPC Transportation of Amber gutka pockets l3 5826120 3498/l l 216120 of JI:CI\,{, Devarkonda Al &2 420 & 273 IPC Sale ofbanned tobacco and gutka products 35.

3500/21 963119 of JFCM, Miryalguda Al to 4 420 k iPc & 20 (ii) of corPA,2ool Transportation of tobacco and gutka products 188, 270 & 273 rPC, 20 (2)of COTPA, 3ofEDA& 5l (b) of DMA 452/20 of xxv MMc, Ibrahirnpatan At &2 t6 Storage of banned gutka and other tobacco products itlegally for sale 3509/21 3514/21 632/19 of XXV MMC, Ib,rhirnpatnanl Alto8 188,270,273 & 420 tPC & 20 (2) of COTPA supply of gutka and other tobacco products 40'70/? t 547/21 of PJMFC, Gajwel At &2 272 & 2',73 rPc & 20 (2) w7(2)of COTPA Transportalion of Amber tobacco 509120 o[ Spl.PCR Mobile Court cumJMFC, Adilabad Al ro5 270 & 273 rPc & 20 (2) rlw 1 (2) of COTPA l9 .11 r0/2 r Transportation ofpan masala and banned gutka 512120 of Spl.PCR Mobile )'to )'71 )1) & 273 r/w 34 'l ransportation ofcotton seeds and I et ro+ 4t 19t21

K L.J Crl.P. No.l52 of )D0 & b.ttch IPC Sec.3 of UDA bauned gutka Court-cumJMFC, Adilabad STC No.20/21 of IV AMM.

cum-lV AJCJ, L.B- Nagar Al &2 272 &- 273 IPC & Sec.20 (l), 20 (2) of CO'fPA 4l 4t40t2l Transportation of banned tobacco and gutka 12.

4t'78i21 8l0l2l of IAJMFC, Khammam 2'10 & 2',t3 rPc &20 (2) ofCOPTA sole accused Purchase and salc ofbanned gutka 188, 272 & 2'73 tPC & 20 (2)&5of COl'PA Sale of tobacco products in his shop and disobcying the nrles imposed by Govr. in Not.No.505/FSS- l/2 l,dt.6. 1.2 I 4t94/21 616'7121 of XVII ACMNT, Nampally sole accused 1298/21 of PJMFC.

Khammanl At&2 270 &. 213 rPC & 20 (2) ofCOTPA Trarsportation of Amber gutka 42t6t2t 4230/21 829121 of PJMFC.

Khammanr I & -doTransportatiou of gutka/pan masala I 43() I /21 108/21 of AJMFC, Asifabad At&2 270 &273 IPC Possession of tobacco products itlegally for sale I 41.

4612/21 533120 of AJMFC, Nirmal Sole accused Purchase and sale ofprohibited guka pockets -do4622/21 622/19 of A]MFC, Nirmal Al &2 -do Possession ofgutka packets at bus stand for salc illegally 4632t21 413120 of AJMFC, Nirmal A3 -do- rlw 34 tPc & 20 (2) ofCOTPA Transportation of banned tobacco products 2.

Heard Mr. M.A.K. Mukheed, Mr. Gajanand Chakravarthy, 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. Arthi, Mr. Y. Bala Murali, Mr. Boggula Raju, Mr. S.

Chandrasekhar, Mr. V. Yadukrishna Sainath. learned counsel

KL.J Crl.P. No.l52 of2020 & botch appearing on behall ol respective petitioners and learned Public Prosecutor appearing on behall' of respondents - State.

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

4. The main allegations against the petitioners - accused are that they were transporting, possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku I gutka I khaini / zarda I pan masala respectively. The offences alleged against the petitioners are under Sections - 188, 270, 269,271,272, 273, 328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short'IPC'), Sections - 20 (l),20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Adveftisement 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 (lor short'ED Act') and Section - 5l

K L,J Crl P No 152 of 2D0 & batch (b) of the Disaster Managernent Act, 2005 (tbr short DS Act) respectively.

5. The respective learned counsel appearing on behalfofthe petitioners in the above criminal petitions would submit that the contents of complaint / charge sheet lacks the ingredients of the offences alleged against the accused. For the offences under the provisions of FSS Act, only Food Safety Off,rcer is having power to initiate criminal proceedings against accused and the police are not having any power to register a case for the offences under the provisions of FSS Act. There is no inducement by the petitioners and, therefore, offence under Section - 420 of IPC does not arise. According to them, the contents of complaint / charge sheet are also lacking the ingredients of the offences under Sections - 269, 270, 27 l, 272, 273, 328 and 336 of IPC.

i) According to them, there is no violation of Sections - 20 (1),20 (2) and 5 read with 7 (2) and 7 (3) of the COTP Act. The Investigating Officers / Cornplainants without following the procedure laid down under the Code of Crirninal Procedure, I 973

Crl.P. No.l52 of2020 & borch (for short 'Cr.P.C.'), have registered the cases lor the offence under Section - 188 of IPC and laid charge sheet against the accused. Necessary ingredients to attract the provisions of Section - 3 of the ED Act and Section - 5l (b) of the DM Act are lacking in the complaint / charge sheet.

ii) With the above said submissions, the respective learned counsel sought to quash the proceedings in the aforesaid crimes / calendar cases.

6. On the other hand, learned Public Prosecutor referring to the principle laid down in the State of Maharashtra v. Sayyed Hassan Sayyed Subhanr by the Hon'ble Supreme Court and in Ganesh Pandurang Jadhao v. The State of Maharashtra2 and Anand Ramdhani Chaurasia v. The State of Maharashtra3 by the Bombay High Court would submit that police are having power to register cases under various provisions of IPC, COTP Act, ED Act and DM Act. There is no irregularity in registering crimes, seizing material including the vehicles and taying charge sheet 2018 ArR (SC) 5348 2016 Cr. 1,.1.2401 2019 SCC Online Bom 1857

l0 KL..1 Crl.P. No.l52 of 2020 <t botch against respective accused in the afbresaid crimes / calendar cases According to him, the accused were transporting, possessing. storing, selling and purchasing the banned products viz., tobacco I tambaku / gutka i khaini I zarda / pan masala respectively. According to him, the accused have to face either investigation or trial and prove their innocence, and instead of doing so, they have filed the present criminal petitions under Section - 482 of Cr.P.C. which cannot be considered at this stage.

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

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

RELEVANT PROVISIONS UNDER IPC "188. Disobedience to ordcr 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 from a certain act, or to takc certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causcs or tends to cause obstruction,

1l KL.J Crl.P. No.l52 of2020 & batch annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a tenn which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, hcalth or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which rnay extend to six months, or with fine which may extend to one thousand rupees, or with both.

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

"269. Negligent act likely to sprcad infcction of discase 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 inlection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

t2 KL.J Crl.P. No.l52 t{2020 & butch "270. Malignant act likely to spread infection of disease dangerous to life.-Whoever malignantly docs any act which is, and which he knows or has rcason to believe to be, likely to spread the infection of any disease tlangerous to life, shalt be punished with irnprisonment of either description for a tenn which may extend to two years, or with fine, or with both."

"271, Disobedience to quarantine rulc.-Whoever knowingly disobeys any rule made and promulgated by the Govemrnent for putting any vessel into a statc ofquarantine, or for regulating the intercourse of vessels in a stato ol quarantine with the shore or rvith othcr vessels, or for regulating the intercoursc betwecn places whcre an infectious disease prevails aud other places, shall be punished with imprisonment ol either description for a term which may extend to six months, or with fine, or with botlt." "272. Adalteration of food or drink intendcd for sale.- Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink. shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

"273. SaIe of noxious food or drink.-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 bc punished

l3 KL.J C .P. No.l52 of:020 & borch with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or rvith both."

"328. Causing hurt by means of poison, ctc., with intent to commit an offence.-Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intcnt to cause hurt to such pcrson, or with intent to commit or to facititate the commission of an offencc or knowing it to be likely that he will thereby cause huft, shall be punished rvith imprisonment of either description for a tenn which rnay cxtend to ten years, and shall also be liablc to finc." "336. Act cndangering life or personal safety of others.- Whoever does any act so rashly or ncgligently as to endanger human life or the personal safety ofotliers, shall be punished with imprisonmcnt of eitl.

rer description for a tcnn which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both." "420, Cheating and dishonestly 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 whole or any part of a vatuable security, or anlthing which is signed 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."

KL.J C .P. No.l of2020 & batch "34. Acts done by several persons in furthcrancc of common intention.-When a criminal act is done by several persons in furtherance of thc common intcntion o{' all, each of such persons is liable for that act in the same manner as if it were done by him alone."

"51l. Punishmcnt for attempting to commit offences punishable with imprisonment for lifc or other imprisonment.-Whoever attelnpts to commit an offcnce 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 express provision is rnadc by this Code for the punishment of such attempt, be punished with irnprisonment of any description provided for the offence, for a tetm which rnay extend to one-half of the imprisonment for life or, as the casc rnay be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both." RELEVANT PROVISIONS UNDER COTP ACT "5. Prohibition of advertisement of cigarettes and other tobacco products.

t5 KL.J Crl.P. No.l52 of2020 & botch promotes the use or consurnption of cigarettes or any other tobacco products.

(2) No person, for any direct or indirect pecuniary benefit, shall- (a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or (c) distribute, cause to distribute, or permit or authorise to distribute to the public any lcaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or (d) erect, exhibit, fix or retain upon or over any land, building, wal[, hoarding, frame, post or structure or uporl or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:

Provided that this sub-section shall not apply in relation to- (a) an advertisernent of cigarettes or any other tobacco product in or on a package containing cigarettes or any othcr tobacco product;

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

(3) No person, shall, under a contract or otherwise promotc or agree to promole the use or consumption of- (a) cigarettes or any other tobacco product; or (b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person." "20. Punishnrcnt for f:rilurc to givc spccified *'arning and nicotine and tar contents.

l6 KI-,J C .l'. No.l52 af2020 & botch (l) Any person rvho produces or manufactures cigarettes or tobacco products, which do not contain, either on the package or on thcir label, the specified warning and the nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment for a tenn which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction. with irnprisonment for a lenn whiclr may extend to five years and with fine which may extend to ten thousand rupees.

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specitied warning and the nicotine and tar contents shall in the case of first conviction be punishable with irnprisonmcnt for a tcrm, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a tenn which may extend to two years and with fine which may extend to three thousand rupees." "7. Restrictions on trade and cornmcrce in, and production, supply and distribution of cigarettcs and othcr tobacco products.-

(1) No person shall, directly or indirectly, pioduce, supply or distribute 6 cigarettes or any other tobacco products unless every package of cigarettes or any other tbbacco products produced, supplied or distributed by him bears thereon, or on its label such specified waming including a pictorial warning as may be prescribed.

(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of

t1 KL..1 Crl.P. No.152 ol 2D0 & botch cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified rvaming.

(3) No person shall import cigarettes or any other tobacco products for distribution or supply lor a valuable consideration 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 waming.

(4) The specified 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 distribution, sale or supply for a valuable consideration.

(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 indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof: Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act."

RELEVANT PROVISIONS UNDER F.S.S. Act:

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

Iti KL,J Crl.P. No.l52 o12020 <1 batch provided in this Chapter, shall be liable to a penalty which may extend to two lakh rupees."

"59. Punishment for unsafe food.-Any per on who, whether by himself or by any other person on his behalf, manufactures tbr sale or storss or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable,- (i) where such failure or contravention does not result in injury with imprisonment fbr a term which may extend to six months and also with fine which rnay extend to one laklt rupees;

(ii) where such failure or contravention results in a nongrievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to threc lakh rupees;

(iii) where such failure or contravention results in a grievous injury, with imprisonrnent for a term which may extend to six years and also with fine which may extend to five lakh rupces;

(iv) wherc such tailure or contravention 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 teri lakh rupees." RELEVANT PROVISION UNDER E.D. ACT:

"3. Pcnalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishablc under section 188 of the Indian Penal Code (45 of t 860 )."

l9 KL.J Crl.P. No.l52 ol 2020 & batch RELBVANT PROVISTON UNDER D.M. AC'T:

"51. Punishment for obstruction, etc.-

(1) Whoever, without reasonable cause- (l ) Whocver, without reasonabls gng5s-r'

(a) obstructs any officer or employee of the Central Govemment or the State Govemment, or a person authorised by the National Authority or State Authority or District Authority in the discharge ofhis functions under this Act; or (b) refuses to comply with any direction given by or on behalf of the Central Govemment or the State Govemment or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with botl.r, and if such obstruction or refusal to comply wilh directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which rnay extend to two years. notes on clauses Clauses 5l to 58 (Secs.

5l to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, rnisappropriation of relief material or funds, issuance of false waming, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences."

8. The /rs involved in the present petitions is no more res integra. A leamed 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 Telanganaa had an occasion to deal with the issues involved in the present criminal petitions. After referring to various provisions of IPC, FSS Act, Crl.P. No.373l of20l8 & batch, decided on 27.08.2018

KL.J Crl.P. No.l52 rtf2020 & barch COTP Act and also the principle laid down by the Apex Court and other High Courts in several judgments, the leamed Single Judge had framed the issues, which are as under:

"l) Whether the respondcnt/ Sub-lnspector of Police, is competent to investigate into the offence punishablc under Sections 54 and 59(l) ofFSS Act?

2) Whether the petitioners in all the petitions are found comrnitting any act with malicious intention, with knowledge and rcason to believe that such act likely to spread the infection of any disease dangerous to life? And whether the petitioners selling or offering or expcsing 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 or reason to believe that the same is noxious as food or drink? If so, are they liable to be proceeded for the offence punishable under Sections 27O and 273 IPC;?"

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 thc Government alone is competent to launch prosccution lor those two offcnces. With the

KL,J Crl.P. No.l52 of2020 & batch said findings, the leamed Single Judge has quashed the proceedings where the offences are under Sections - 54 and 59 ol FSS Act initiated by the potice.

10. In the very same judgment, the learned Single Judge further held that chewing tobacco and khaini are not the 'food' within the definition of Section - 3O of the FSS Act and the manufacture, sale or exposing for sale of tobacco etc., is govemed by the provisions of COTP Act, but not by FSS Act and so also the provisions of IPC. The respondents - police are incompetent to investigate the offence punishable under Sections - 54 and 59 (1) of the FSS Act and allegations in the charge sheet coupled with the statements do not disclose the commission ol the ofl'ence punishable under Section - 273 of IPC since transportation of noxious food is not included under Section - 273 of lPC. The act done by the accused therein i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of

-)l KI,.J Crl.P. No.l52 oJ2020 & botch khaini or chewing tobacco by itself is not an offence under Section - 270 of lPC. Pan Masala is not a tobacco product to i'all within the purview of COTP Act. Therefore, the provisions of the COTP Act have no application, thereby registration of crime on the ground of violation of Sections - 7 (1) (2) (3) (5) and Section - 26 of COTP Act is an illegatity. The learned Single Judge fur-ther held that registration of cases fbr the offence under Section - 20 (2) read with 7 (2) of COTP Act is itlegal. With the said findings, the learned Single Judge has quashed the crimes and calendar cases in the said judgment.

11. In Sri Jaganath Enterprises Eluru Vasadhi Tripati Rao v. The State ofAndhra Pradeshs, a learned Single Judge of the High Court of Andhra Pradesh at Amaravti had also an occasion to deal with the said issue. After refeiring to the contentions of the respective parties therein, various provisions of IPC, FSS Act, COTP Act and relying on the principle laid down in Anand Ramdhani Chaurasia3, Joseph Kurian v. State of '. zozo 1r; ALT (crl.) 2ls (APrrc)

KL..I Crl.P. No.l52 of2020 & batch Kerala6, Sayyed Hassan Sayyed Subhanr, M/s. Pepsico India Holdings (Pvt) Ltd., v. Statc of U.P.?, Sanjay Anjay Stores v. Union of Indi"', Boop Singh Tyagi v. Statee, State of Haryana v. Bhajan Lalr0 and Chidurala 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 allegations for the very same offences.

i) Referring to the provisions of Sections - 153, 188, 269,270, 27l, 272, 273, 284,328, 353 of IPC, the learned Judge in Sri Jaganath Enterprisest held that the offences registered under the said Sections are not maintainable. It further held that the provisions of the COTP Act can only be pressed into service in the limited circumstances only u,here there is violation of Sections - 4,5,6,7 and 10 of the COTP Act. By referring to the principle l99s (l) scJ 277 201I (2) Crimes 250 2017 SCC Online Cal 16323 2002 cd.L.J.2872 1992 Supp (1) SCC 335 ro

l.+ K L.J Crl.l'. No.l of2020 & batch laid down by the Apex Court in Bhajan Lalro and M/s. Pepsico India Holdings (Fvt) Ltd.7, the learned Single Judge has quashed the proceedings in various crimes / calendar cases.

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

13. In Sayyed Hassan Sayyed Subhanr, the Apex Court while dealing with legality of the order passed by the Bombay High Court in a batch of criminal writ petitions and crirninal applications, which were filed challenging the regi.stration of FIRs for the offences under Sections - 188,272,273 and 328 ofIPC 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 High Court is contrary to the provisions of the Act and law laid down by it. With the said finding, the Apex Court remitted the matter to the Bombay High Court for fresh rr. 2020 Suprcme (AI) 348

l5 KLJ Crl.P. No.l52 of2010 & botch consideration on the issue that whether the aforesaid offences are made out in the FIRs, which are subject matter of the cases pending before the Bombay High Cour1.

14. In view of the authoritative pronouncement of law in the aforesaid judgments, as discussed above, coming to the facts of the cases on hand, the allegations against the accused in respective cases are transportation, possession, storage, sale and purchase of banned products vrz., tobacco / tambaku / gutka / khaini I zarda I pan masala etc., respectively. In Chidurala Shyamsubdera, the learned Single observed that transpo(ation of chewing tobacco or khaini or pan masala do not constitute an offence punishable under Section - 270 of IPC and that manufacturing of pan masala is not included in Section - 273 of IPC and, therefore, the same is not an off'ence since it is not a noxious food. The learned Single Judge has further obseryed in the said judgment which is as under: "....The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products

-() KL.J Crl.P. No.152 of2020 & hotch ale consumed by hurnan being, it would certainly cause datnage to the health.

Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section - 270 of IPC and it would fall within Section 270 of IPC."

15. Section - 272 ofIPC makes punishable an offence by a person, who adulterates any article of food or drink. Therefore, the said section would oniy come into play if food ol drink is adulterated. There is no definition of 'adulteration' in IPC. The detinition of 'adulterant' is found in the provisions of the FSS Act. Section - 3 (1) (a) of the FSS Act deals with 'adulterant' which means a material which could make the 'food' unsat'e or substandard or mis-branded. According to Section - 212 of IPC, if a rnaterial is used to make the food unsafe/sub-standard or misbranded, then only the offence would be attracted. Whereas, as discussed supra, the allegation in the present batch of cases is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco / tambaku / gutka / khaini I zarda I pan masala etc., respectively. Therefore, according to this Court, tlre said allegation does not fall within the ambit of Section - 272 of

KL,J Crl.P- No.l52 of2020 & botch lPC. Therefore, I agree with the principle laid down by the leamed Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubdero, Sri Jaganath Enterprisess and V. Nageswara Raoll.

16.

In Joseph Kurian6, the Hon'ble Supreme Court held that for Section - 272 IPC to be attracted, the following should be present. ( 1) That the article involved was food and drink meant to be consumecl by livc persons; (2) that the accused adLrlterated it and the adulteration rendered it noxious as a 'food or drink'; (3) that the accused knew at the time ol adulteration that he would sell the article as food or drink and knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court clearly held that the offence is completed on the introduction of the adulterant. 'Adulterant' would mean that a material which is mixed to make the 'food' unsafe or drink unsafe. In the present case on hand, tobacco is not a food or drink and what is stated to be mixed in it is not clearly established by any cogent material as an 'adulterant' for the offence under Section - 272 IPC to be pressed into service.

KL.J Crl.P. No.l5) of2020 & burch

17. As far as Section - 328 ol IPC is concerucd. in the same judgment it was held as follows:

"10. ln ordcr to provs offence under Section 328 the prosecution is required to prove that the substance in question was a poison, or any stupeiying, intoxicating or unwholesome drug etc, that the accused administered the substance to the complainant or caused the complainant to take such substance, that he did so with intent to cause hurt or knowing it to be likely 19 that he would thereby cause hurt, or with the intention to commit or facilitate the comrnission of an offcncc. It is, therefore, essential for the prosecution to prove that the accuscd was directly responsible for administering poison etc. cr causing it to be taken by any person, thrcugh another. . .. ..." Tobacco does not fit into this definition.

18. 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, shalt be punished with irnprisonment specified therein. Therefore, if a person of-fers for sale a "food or drink" any article which has become noxious or is in a state of unfit for "food or drink". Thus, the said section would apply, when an article which has become

KL.J Crl.P. No.l52 o12020 & barch 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 IPC or in FSS Act. As per the dictionary meaning, the word 'noxious' is harmful, deleterious, injurious, poisonous etc. As stated above, the allegation in the entire batch of present criminal petitions is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco / tambaku / gutka / khaini I zarda I pan masala etc., respectively. Therefore, according to this Court, the contents of the complaint/charge 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, theie must be; an order duly promulgated by the public servant; the public seryant must have the lawful authority to promulgate the order; the person flouting the same should have knowledge about the order directing him to abstain from the act; he must disobey the said order with the knowledge; and such disobedience of the duly promulgated order should cause a danger to the human life etc. In

KL.J Crl.P. NLt.l52 of2020 (t botch Boop Singh Tyagie a Division Bench of Allahabad High Court held that right to promulgate the ordinance/order is also an issue which is being raised, because under the FSS Act, the Commissioner of F-ood Sal-ety alor.re has the authority to pass the orders only if the article ol''food' can causes danger or is injurious to health.

20. In N.T. Rama Rao v. The State of A.P., rep. by Public Prosecutorr2 while dealing with the offences under Sections - 188 and 283 of IPC, the leamed Single Judge of the cornbined High Court ofAndhra Pradesh held as under:

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the pennission accorded for conducting ol a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates- If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure r?. Criminal Petition No.5323 of2009. decidcd on l'.,.Og.2OOg

it KL,.I C .P. No.li2 of2020 & bntch mandates that the cornplaint in this regard has to be rnade by the public servant concemed or sorne other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant perrnission for the public meeting and therefore, the cornplaint/charge sheet is in violation of the rnandatory provision of Section I 95( I Xa) of Code of Crirninal Procedure.

6) That apar1, the offence alleged to have been cornrnitted 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 Indian Penal Code and is not an independent of the sarne.

Even otherwise, the conduct of public rneeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concemed, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak

l2 KI--.J Crl.P. No.l52 of2020 & ktrch about the traffic jam caused by the road show. But, when the conduct of the public rneeting at least at one place has been perrnitted and if the gathering for that public rneeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens r€a to construe the existence of an oflence punishable under Indian Penal Code. Under the circurnstances, none of the offences alleged can be said to have any reasonable basis and in any view, the cornplainVcharge sheet being in violation of Section 195 ( l) (a) of Code of Crirninal Procedure, has to fail.

7) As the cornplaint has failed due to its unsustainability, the proceedings in their entirety have to fail, though the l" accused alone approached this Court by way of this CrirninaI Petitiorr."

21. In Thota Chandra Sekhar v.'[hc State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari Districtrr, wherein by relying on various judgments including N.T. Rama Raor2 and also the guidelines laid down by the Apex Court in Bhajan Lall0 more particularly, guidelinc No.6, which says that lr. Crirrinal Petitiorl No.15248 of 20I6. deci<led on 26.1O.2O16

J-) KL,J Crl.P. No.l52 of2020 & barch where there, is an express legal bar engrafted in any of the provisions of the Code or the concerned 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 concerned Act, providing efficacious remedy to redress the grievance of the party, it was held that the proceedings in the said C.C. were quashed by exercising power under Section - 482 of Cr.P.C. It rvas also further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C.

22.

Vide Notification No.501/FSS-l/2020, dated 06.01 .2020, the Commissioner of Food Safety,, Telangana Directorate of Institute of Preventive Medicine, Public Health Labs and Food (Health) Administration, Narayanguda, Hyderabad, restricted the manuf-acture, storage, distribution, transportation and sale ofgutka / pan rnasala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure

KL.J Crl.P. No.l of2020 & batch tobacco, khaini, khara, scented tobacco / flavoured tobacco or by whatever name locally it is called packed in sachets / pouches / package in the entire Stage ofTelangana under FSS Act, 2006. lt is for one year. Vide Notification No.505iFSS-112021, dated 06.01.2021, the same was extended for one more year. As per the information furnished and instructions received, several writ petitions were filed challenging the said Notifications before this Court as well as the Hon'ble Supreme Court. A Division Bench of this Court declined to entertain some writ petitions on the ground that the Hon'ble Supreme Court seized of the said issue. It is also relevant to note that the Hon'ble Supreme Court remanded back the matter to this Court.

Therefore, such a notification can only be issued for emergency situations and for prohibiting the distribution and salc ofany articlc ofa food cannot be lost sight of. Therefore, in view of the law laid down in the above judgments including the judgments in Chidurala Shyamsubdero, Sri Jaganath Enterprisess and V. Nageswara Raorl. According to this Court, Section - 188 of IPC will not attract to the allegations leveled against the petitioners herein in this batch of criminal petitions.

l5 KL,J Crl.P. No.l52 o1 2020 & bdtch

23. As far as Section - 328 of IPC is concerned, it deals with causing hurt by means of poison, etc., with intent to commit an offence. As per the said provision, whoever administers to or causes to bc taken by any person any poison or any stupefizing, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefbre, there should be administering poison, intoxicating etc., with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he wilt thereby cause hurt. As stated above, the allegations in the entire batch of criminal petitions are lacking. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 328 of IPC

i6 KL,J Crl.P. No.l of2020 & batch

24. As far as Section - 336 of IPC is concerned, it deals with an act endangering life or personal safety of others, and as per which, whoever does any act so rashly or negligently as to endanger human life or the personal safety ol others, shatl be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty mpees, or with both. ln the cornplaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to this Courl, the contents of the complaints / charge sheets lacks the ingredients ofSection - 336 oflPC.

25. As far as Section - 420 of IPC is concerned, it deals with Cheating and dishonestly inducing delivery of property. Tllere is no such inducement cithcr at the inception or at a later stage. Thus, the contents of complaints I charge sheet lack the ingredients of Section - 420 of IPC.

26. As far as Section - 269 of IPC is concemed, it deals with negligent act likely to spread infection ofdisease dangerous to life,

KL.J Crl.P. No.l52 of2020 & batch and as per which, 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 any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. But, a perusal of the contents of complaints / charge sheets in the present batch of cases, such ingredients are lacking and, therefore, Section - 269 of IPC does not arise in the present batch ofcases.

27. ln view of the above said discussion, according to this Court, transporlation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country. I'herefore, it cannot be said that Sections - 269, 270, 271,272 and 273,328, 336 and 420 of IPC are attracted to the cases in this batch.

28. As far as the offences under FSS Act is concemed, as already discussed above, in Chidurala Shyamsubdera, the learned Single Judge following the guidelines laid down by the Hon'bte Supreme Court in Bhajan Lalr0 held that the police are

Kt,.t Crl.P. No.152 of2020 & burch incompetent to take cognizance of the offences punishable under Sections - 54 and 59 (l) of the FSS Act, investigating into the offences along with other offences under the provisions of the IPC. It was further held that filing charge sheet is a grave illegatity, as the Food Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down under Sections - 41 and 42 ofFSS Act. In the present case, the police have registered the crime for the offences 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 contrarJ to the principle laid down in Chidurala Shyamsubdera.

29. With regard to the offences under COTP Act, it is relevant to mention the objects and the reasolls of the said Act itsclf clcarly statc that the act is meant to prohibit the adveftisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. A reading of the said objects of the said Act would reveal that a total ban of tobacco products was not envisaged by the said Act.

3() KL..1 Crl.P. No.l5l ol2D0 & hatch The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section - 3 (p) of the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section - 5 of the COTP Act deals rvith prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can adveftise cigarettes or tobacco products, and no person shall be a part of any advertisement.

30. Section - 7 o1'the COI'P Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Section - 4 of the COTP Act, bans smoking in public places. In addition, Section - 6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of l8 years are in an area within 100 yards of any educational institr.rtion.

K L.J Crl.P. No.l52 of2020 & batch

31. A reading of this Act, particularly Sections - 4,5,6 and 7 clearly shows that there is no general ban or general prohibition on the manufacture/sale of tobacco products. 22 What is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections - 5 and 7 of the COTP Act, deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, according to this Court, the above said allegations of transportation, possession, storage, sale and purchase of banned tobacco products will not attract the offence under Section -7 of the CO'I'P Act.

32. As far as Section - 20 (2) of the COTP Act is concerned, as stated above, the allegations against the petitioner in respective complaints / charge sheets are that they were transporting, possessing, storing, selling and purchasing the banned tobacco products to the customers itlegally in order to gain wrongful profits. In view of the said allegation, it is apt to refer to Section -

4I KL,J Crl.P. No.l52 oJ 2020 & barch 20 (2) of the COTP Act for better appreciation of the case and to decide the issue in question, and the sante is as under: "20. Punishment for failure to give specified warning and nicotine and tar contents.- (l ) ...

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

33. Thus, Section - 20 of COTP Act deals rvith punishment for failure to give specified warning and nicotine and tar contents But, in the complaints I charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and specifled waming on the said products. In view of the same, the contents of the complaints / charge sheets lack the ingredients of Section - 20 (2) of the COTP Act. Even, there is no allegation that

KL..1 Crl.P. No.l52 of2020 & batch the seized products do not contain labels with statutory warning. Thus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 20 (2) of COTP Act, but also contrary to the principle laid down in Chidurala Shyamsubdera. ln view of the same, the offence under Section - 20 (2) of COTP Act is also liable to be quashed against the petitioners. I once again reiterate that I agree with the principle laid down by the leamed Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V. Nageswara Raoll.

34. For the foregoing discussion and the authoritative principle of law, Criminal Petition Nos. 3768, 3879, 4046,4077, 4098, 4099, 4100, 4102, 4t4t, 4151, 4t57, 4182, 4187, 4247, 4249, 425t, 4258,4262,, 4277, 4405,4415, 4542, 4615,4640, 4681, 4727, 4775 and, 4825 of 2021 are allowed quashing the proceedings against the petitioners therein in the respectivc crimes mentioned therein. Since the proceedings in the aforesaid Crirninal Petitions are quashed against the respective petitioners, the respcctive Station House Olficers / Investigating Officcrs are

KL,J Crl.P. No.l52 of2020 & batch hereby directed to retum the seized property / vehicles on proper identification and verification of ownership under due acknowledgment.

35. Further, Criminal Petition Nos. 152, 153, 155, 162 & 5826 of 2020,3498,3500, 3509, 3514, 4070,4110, 4119, 4140, 4178,4194,4216,4230,4361,4612,4622 and 4632 of 2021 are also allowed 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 for return of the seized property / vehicle and the Magistrate shall consider the same in accordance with lau,. As a sequel, miscellaneous petitions, if any, pending in all the Criminal Petitions shall stand closed.

I(. LAKSIiN'[i\n'. J o5rH JtrLY, 2021 Note: L.R. copy to be marked.

(B/O.) Mgr