HON'BLE SRI JUSTICE K. LAKSHMAN
I.A.No.2 of 2021
In/And
CRIMINAL PETITION No.3356 OF 2021
COMMON ORDER:
This petition is filed under Section 482 of Cr.P.C., seeking to
quash the proceedings in C.C.No.2729 of 2020 on the file of I
Additional Judicial Magistrate of First Class, Khammam, against the
petitioners. The petitioners herein are accused Nos.1 and 2 in the
above said crime. The offences alleged against them are under
Sections - 270 and 273 of IPC and Section - 20 (2) 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'). The petitioners also
filed I.A.No.2 of 2021 for return of material, which was seized in the
above said crime.
2. Heard Mr. K. Surender, learned counsel for the petitioners,
and learned Assistant Public Prosecutor appearing on behalf of
respondents. Perused the entire material available on record.
3. The learned counsel for the petitioners would submit that the allegations levelled against the petitioners lacks the ingredients of the aforesaid offences and, therefore, he sought to quash the proceedings against the petitioners. In support of the same, he has placed reliance 2 on the judgment in Chidurala Shyamsubder v. State of Telangana1 rendered by a learned Single Judge of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh.
4. On the other hand, learned Assistant Public Prosecutor has tried to distinguish the principle laid down in the said judgment to the facts of the present case.
5. Perused the judgment in Chidurala Shyamsubder (supra), wherein a learned Single Judge of the High Court observed that transportation of chewing tobacco or Khaini or Pan Masala do not constitute an offence punishable under Section 270 of IPC and that manufacturing 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 food. The learned Single Judge further observed 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 are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section - 270 of IPC and it would fall within Section 270 of IPC."
6. In the present case, the allegation levelled against the petitioners herein that they are purchasing the banned tobacco 1 . Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018 3 products and selling them to retails to get more profits illegally. In view of the above said decision, the contents of the complaint lacks the ingredients of Sections - 270 and 273 of IPC and, therefore, the proceedings in the aforesaid crime for the said offences are liable to be quashed against the petitioners herein - accused Nos.1 and 2.
7. As far as Section - 20 (2) of the COTP Act is concerned, as stated above, the allegations against the petitioner is that he is selling the 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 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."
8. Thus, Section - 20 of COTP Act deals with punishment for failure to give specified warning and nicotine and tar contents. As stated above, the allegations against the petitioners herein are that they purchase tobacco products and sells them to customers at higher 4 prices to gain wrongful profits. But, in the complaint, there is no allegation against the petitioners that they are 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 complaint 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 crime 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 Shyamsubder (supra). In view of the same, the offence under Section - 20 (2) of COTP Act is also liable to be quashed against the petitioners - accused Nos.1 and 2.
9. In view of the above discussion, the present Criminal Petition is allowed, and the proceedings in C.C.No.2729 of 2020 on the file of I Additional Judicial Magistrate of First Class, Khammam, are hereby quashed against the petitioners- accused Nos.1 and 2.
10. I.A. No.2 of 2021 is filed by the petitioners for return of material, which were seized in the above said crime. Since the proceedings in the aforesaid case are quashed against the petitioners herein - accused Nos.1 and 2 in C.C.No.2729 of 2020 on the file of I Additional Judicial Magistrate of First Class, Khammam, the petitioners are at liberty to file an application before the learned 5 Magistrate for return of the seized property and the learned Magistrate shall consider the same, in accordance with law, for return of the seized property, on proper identification and verification of ownership of seized property under due acknowledgment.
As a sequel, miscellaneous petitions, if any, pending in the criminal petition shall stand closed.
_________________ K. LAKSHMAN, J April 27, 2021 Note:
Registry is directed to annex a copy of Common Order, dated 27.08.2018 in Crl.P. No.3731 of 2018 & batch to this order.
(B/O.) dv