Andhra Pradesh High Court - Amravati

Venkata Reddy Kotla vs The State Of Andhra Pradesh on 6 November, 2023

Bench: B S Bhanumathi

             THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                 Criminal Petition No.8567 of 2023
ORDER:

This Criminal Petition under Section 482 CrPC is filed by the

petitioners to quash the proceedings against them in FIR No.320 of

2022 of Narasaraopet Rural Police Station, Palnadu District,

registered for the offences under Sections 7(1), 7(3) and 20 of the

Cigarettes and Other Tobacco Products (Prohibition of

Advertisement and Regulation of Trade and Commerce, Production,

Supply and Distribution) Act, 2003 (for short, the "COTPA") and

consequently to return the seized tobacco product.

2. Heard Sri D.Kasi Rao, learned counsel for the petitioners/

accused and the learned Assistant Public Prosecutor appearing for

the respondent/State.

3. The facts of the case, in brief, are that the 1st petitioner is

running a tea stall in front of the Government Hospital in

Lingamguntla village of Narasaraopet Mandal along with his son. As

the income earned from the said business is not enough for his

family needs, he used to buy Rajakyeni pan masala from the

government and sell the same at a lower price.

The police registered a case against the petitioners for the offences

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punishable under Sections 7(1), 7(3) and 20(1) of the COTPA since

they were found manufacturing and transporting tobacco products.

4. Learned counsel for the petitioners submitted that the police

have mechanically registered the case contrary to the settled

principles of law. It is further submitted that the police are

incompetent to take cognizance of the offences punishable under

Sections 7(1), 7(3) and 20(1) of the COTPA. The filing of charge

sheet itself is illegal in view of the law declared in various

judgments to the effect that chewing tobacco and khaini are not

'food' items and that the Food Safety Officer alone is competent to

investigate into the offence and file charge sheet. Learned counsel

for the petitioners placed reliance on the orders of this Court, dated

27.8.2018, passed in Criminal Petition No.3731 of 2018 and batch,

as well as the order, dated 18.12.2019, passed in Criminal Petition

No.5421 of 2019, wherein, this Court had held that police cannot

present crime was registered are not attracted. Therefore, the

proceedings are liable to be quashed.

5. Learned counsel for the petitioners further submitted that

there is no prohibition or ban of tobacco, and therefore, no offence

can be said to have been committed by the petitioners, and

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therefore, when complaint basing on which the FIR was registered

does not disclose any act of the accused in the commission of any

crime, the FIR is liable to be quashed.

6. Learned Assistant Public Prosecutor submitted to pass

appropriate orders.

7. Before proceeding further, it is apt to note paragraph No.16 of

the decision in Ramesh Chandra Gupta Vs. State of U.P and

others1 wherein it was held as follows:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section

2022 Live Law (SC) 993

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156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) 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 redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."

8. The present case is fully covered by categories (1) and (3) as

enumerated above. A Division Bench of this Court in W.P.Nos.30185

of 2022 and batch, dated 24.03.2023, held that seizure of tobacco

products by the respondents is held to be bad in law and the

respondents therein were directed not to interfere with the lawful

day-to-day business activities of the petitioners therein with regard

to tobacco products. Further, in Crl. Petition No.3731 of 2018 and

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batch, dated 27.08.2018, a learned Single Judge of this Court held

that the police would not have jurisdiction to initiate or investigate

any offences punishable under the provisions of the FSSA, 2006. It

was further held that transport or storage of tobacco and tobacco

products would not constitute an offence punishable under Sections

270 to 273 IPC.

9. In Criminal Petition No.6626 of 2022, this Court held as

under:

"....It is not in dispute that several cases were disposed of by difference Benches of this Court quashing the FIRs/ Charge sheets registered against the persons transporting, possessing or selling tobacco products under the provisions of Indian Penal Code, Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 as also under the provisions of the Food Safety and Standards Act, 2006 inter alia, holding that possession or transportation or sale of tobacco products would not constitute a crime under the said enactments. Therefore, registration of FIR in the absence of any complaint to the effect that the products in question are stolen or on mere suspicion is not warranted. The F.I.R must disclose commission of offence."

10. In the present case, as per the allegations, no offence could

be made out either under any of the provisions of FSSA, 2006; or

COTPA; or the provisions of the Indian Penal Code. In a similar

case, this High Court in Devarasetti Venkata Rao v. State of

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Andhra Pradesh2, dealt with the similar matter and quashed the

FIR registered under Sections 41 and 102 CrPC as no cognizable

offence was made out from the allegations to register FIR as per

Section 154 CrPC which mandates its registration only if the

information discloses commission of cognizable offence.

11. In view of the aforesaid findings which are being consistently

followed by this Court, this Criminal Petition is allowed quashing the