IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL PETITION No.152 OF 2020 & Batch
% Delivered on: 05-07-2021
Between in Crl.P. No.152 of 2020:
# Mr. Mohd. Jameel Ahmed .. Petitioner
Vs.
$ The State of Telangana, rep.by Public Prosecutor
High Court of Telangana, Hyderabad & another .. Respondents4. The main allegations against the petitioners - accused are that they were transporting, possessing, storing, selling and purchasing the banned products viz., tobacco / tambaku / gutka / khaini / zarda / pan masala respectively. The offences alleged against the petitioners are under Sections - 188, 270, 269, 271, 272, 273, 328, 336 & 420 read with 34 and 511 of the Indian Penal Code, 1860 (for short 'IPC'); Sections - 20 (1), 20 (2) and 5 read with 7(2) and 7 (3) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'COTP Act'); Sections - 58 and 59 of the Food Safety and Standards Act, 2006 (for short 'FSS Act'); Section - 3 of the Epidemic Diseases Act, 1897 (for short 'ED Act') and Section - 51 (b) of the Disaster Management Act, 2005 (for short DS Act) respectively.
22. Vide Notification No.501/FSS-1/2020, 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 manufacture, storage, distribution, transportation and sale of gutka / pan masala, which contains tobacco and nicotine, as ingredients and chewing tobacco products, like chap tobacco, pure tobacco, khaini, kharra, scented tobacco / flavoured tobacco or by whatever name locally it is called packed in sachets / pouches / package in the entire Stage of Telangana under FSS Act, 2006. It is for one year. Vide Notification No.505/FSS-1/2021, dated 06.01.2021, the same was extended for one more year. As per the information furnished and instructions received, several writ petitions were filed challenging the said KL,J Crl.P. No.152 of 2020 & batch 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 sale of any article of a food cannot be lost sight of. Therefore, in view of the law laid down in the above judgments including the judgments in Chidurala Shyamsubder4, Sri Jaganath Enterprises5 and V. Nageswara Rao11. 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.
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 be taken by any person any poison or any stupefying, 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. Therefore, 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 will KL,J Crl.P. No.152 of 2020 & batch 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.
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 of others, shall be punished with impris- onment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both. In the complaints / charge sheets, there is no such allegation of rash and negligent act which endangers human life or personal safety of others. Therefore, according to this Court, the contents of the complaints / charge sheets lacks the ingredients of Section - 336 of IPC.
25. As far as Section - 420 of IPC is concerned, it deals with Cheating and dishonestly inducing delivery of property. There is no such inducement either at the inception or at a later stage. Thus, the contents of complaints / charge sheet lack the ingredients of Section - 420 of IPC.
26. As far as Section - 269 of IPC is concerned, it deals with negligent act likely to spread infection of disease dangerous to life, and as per which, whoever unlawfully or negligently does any act KL,J Crl.P. No.152 of 2020 & batch 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 of cases.
27. In view of the above said discussion, according to this Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country. Therefore, it cannot be said that Sections - 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 concerned, as already discussed above, in Chidurala Shyamsubder4, the learned Single Judge following the guidelines laid down by the Hon'ble Supreme Court in Bhajan Lal10 held that the police are incompetent to take cognizance of the offences punishable under Sections - 54 and 59 (1) 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 illegality, 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 of FSS Act. In the present case, the police have registered the crime for the offences KL,J Crl.P. No.152 of 2020 & batch under Sections - 188, 270 and 273 of IPC. Therefore, in the present batch of cases, entertaining the complaints / filing the charge sheets by the police is contrary to the principle laid down in Chidurala Shyamsubder4.
29. With regard to the offences under COTP Act, it is relevant to mention the objects and the reasons of the said Act itself clearly state that the act is meant to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. A reading of the said objects of the said Act would reveal that a total ban of tobacco products was not envisaged by the said Act. The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section - 3 (p) of the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section - 5 of the COTP Act deals with prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products, and no person shall be a part of any advertisement.
30. Section - 7 of the COTP Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless KL,J Crl.P. No.152 of 2020 & batch 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 18 years are in an area within 100 yards of any educational institution.
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 COTP 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 illegally in order to gain wrongful profits. In view of the said allegation, it is apt to refer to Section - 20 (2) of the COTP Act KL,J Crl.P. No.152 of 2020 & batch for better appreciation of the case and to decide the issue in question, and the same is as under:
"20. Punishment for failure to give specified warning and nicotine and tar contents.-(1) ...(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 warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with 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 with punishment for failure to give specified warning and nicotine and tar contents. But, in the complaints / charge sheets, there is no allegation against the petitioners that they were carrying on trade or commerce in contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contents of the complaints / charge sheets lack the ingredients of Section - 20 (2) of the COTP Act. Even, there is no allegation that the seized products do not contain labels with statutory warning. Thus, registering the crimes for the said offence against the petitioners is not only contrary to Section - 20 (2) of COTP Act, but also contrary to the principle laid down in Chidurala Shyamsubder4. In 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 KL,J Crl.P. No.152 of 2020 & batch principle laid down by the learned Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubder4, Sri Jaganath Enterprises5 and V. Nageswara Rao11.
34. For the foregoing discussion and the authoritative principle of law, Criminal Petition Nos. 3768, 3879, 4046, 4077, 4098, 4099, 4100, 4102, 4141, 4151, 4157, 4182, 4187, 4247, 4249, 4251, 4258, 4262, 4277, 4405, 4415, 4542, 4615, 4640, 4681, 4727, 4775, 4825 and 5826 of 2021 are allowed quashing the proceedings against the petitioners therein in the respective crimes mentioned therein. Since the proceedings in the aforesaid Criminal Petitions are quashed against the respective petitioners, the respective Station House Officers / Investigating Officers are hereby directed to return the seized property / vehicles on proper identification and verification of ownership under due acknowledgment.
35. Further, Criminal Petition Nos. 152, 153, 155 & 162 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 law.
KL,J Crl.P. No.152 of 2020 & batch As a sequel, miscellaneous petitions, if any, pending in all the Criminal Petitions shall stand closed.
_________________ K. LAKSHMAN, J 05TH JULY, 2021 Note: L.R. copy to be marked.
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