HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2533 OF 2021
ORDER:
This petition is filed under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.366 of 2020 on the file of the Additional Judicial First Class Magistrate, Nirmal, against the petitioner/Accused No.2 and for a consequential direction to return the seized property. The petitioner herein is accused No.2 in the above said Crime. The offences alleged against the petitioner are under Section 20 (2) of Cigarette & Tobacco Product Act, 2003 (for short 'COTPA Act').
2. Heard learned counsel for the petitioner and the learned Assistant Public Prosecutor. Perused the entire material available on record.
3. The learned counsel for the petitioner would submit that the Sub-Inspector of Police is not having power to register a case in Cr.No.2 of 2020 under Section 20(2) of the COTP Act. He would further submit that the allegations against the petitioner are that he is selling the tobacco products to the customers illegally in order to gain wrongful profits. The learned counsel by referring to the provisions of COTP Act, including 20 (2), would submit that the allegations 2 made in the charge sheet do not attract the ingredients of the aforesaid provision and, therefore, the aforesaid offences alleged against the petitioner are liable to be quashed. In support of the same, he has placed reliance on the judgment in Chidurala Shyamsubder v. State of Telangana1 rendered by the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh. Whereas, the learned Public Prosecutor has tried to distinguish the principle laid down in the said judgment to the facts of the present case.
4. As stated above, the allegations against the petitioner are that he is selling the tobacco products to the customers illegally in order to gain wrongful profits. In view of the said allegations, 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 "1
. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018 3
5. 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 petitioner herein are that he purchases the tobacco products and sell them to customers at higher prices to gain wrongful profits. The petitioner is neither trader, nor supplier/distributor of cigarettes or any other tobacco products. There are no allegations in the charge sheet against the petitioner that he is carrying on the 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 charge sheet lacks the ingredients of Section -20 (2) of the COTP Act. In the entire charge sheet, there is no allegation that the seized products do not contain the labels as well as statutory warning. Therefore, registering the crime for the said offence against the petitioner is also contrary to Section - 20 (2) of COTP Act. Thus, the offence under Section - 20 (2) of COTP Act is also liable to be quashed against the petitioner.
6. In view of the above discussion, the present Criminal Petition is allowed and the proceedings in C.C.No.366 of 2020 on the file of the Additional Judicial First Class Magistrate, Nirmal, are hereby quashed against the petitioner - accused No.2.
7. It is submitted by the learned counsel for the petitioner that the seized property is in the custody of the Additional Judicial 4 First Class Magistrate, Nirmal and sought direction to the learned Magistrate, to return the seized property to the petitioner.
8. Since the proceedings in the aforesaid case are quashed against the petitioner/Accused No. 2 in C.C.No.366 of 2020 on the file of the Additional Judicial First Class Magistrate, Nirmal , the learned Magistrate is directed to return the seized property on proper identification and verification of ownership of seized property under due acknowledgment.
As a sequel, miscellaneous petitions pending, if any, in the criminal petition, shall stand closed.
__________________ K. LAKSHMAN, J 26.03.2021 dv