THE HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.3573 OF 2021
ORDER:
This Criminal Petition is filed under Section 482 of Cr.P.C., seeking to quash the proceedings in Crime No.41 of 2021 on the file of Kulcharam Police Station, Medak District, against the petitioner. The petitioner herein is the sole accused in the above said crime. The offences alleged against him 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').
2. Heard Sri Srinivas Reddy Balakisti, learned counsel for the petitioner, and learned Assistant Public Prosecutor appearing on behalf of respondents. Perused the entire material available on record.
3. The learned counsel for the petitioner would submit that the allegations levelled against the petitioner lack the ingredients of the aforesaid offences and, therefore, he sought to quash the proceedings against the petitioner. In support of the same, he has placed reliance on the judgment in 2 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."1
. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018 3
6. In the present case, the allegation levelled against the petitioner herein is that he is purchasing the banned tobacco products and selling them to retails to get more profits illegally. In view of the above said decision, the contents of the complaint lack 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 petitioner - accused.
7. As far as Section 20 (2) of the COTP Act is concerned, as stated above, the allegation 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."
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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 allegation against the petitioner herein is that he purchases tobacco products and sells them to customers at higher prices to gain wrongful profits. But, in the complaint, there is no allegation against the petitioner that he is 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 petitioner 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 petitioner - accused.
9. In view of the above discussion, the present Criminal Petition is allowed, and the proceedings in Crime No.41 of 2021 on the file of Kulcharam Police Station, Medak District, are hereby quashed against the petitioner - accused. 5
10. Since the proceedings in the aforesaid case are quashed against the petitioner - accused in Crime No.41 of 2021, the Station House Officer, Kulcharam Police Station, Medak District, is directed to return the seized property, along with crime vehicle, 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 Date: 30.04.2021 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. TJMR