Nihar Dharmendrabhai Bhagat vs State Of Gujarat
2021 Latest Caselaw 17583 Guj

     R/CR.MA/14853/2020                              JUDGMENT DATED: 23/11/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 14853 of 2020



FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          NIHAR DHARMENDRABHAI BHAGAT
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR BANDHAN U SHETH (9441) for the Applicant(s) No. 1,2
MR SUJAY J ADESHRA (9325) for the Applicant(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 23/11/2021

                                 ORAL JUDGMENT

1. Rule. Learned APP waives service of notice of rule on behalf of respondent State.

R/CR.MA/14853/2020 JUDGMENT DATED: 23/11/2021

2. By way of this application, the applicants have prayed to quash and set aside the impugned complaint bearing FIR No.11191020200294 registered with Vastrapur Police Station, Ahmedabad City for offences punishable under Section 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 said Act") and all consequential proceedings initiated in pursuance thereof.

3. Learned advocate Mr. Sujay Adeshra for the applicants submitted that as per the complaint, while the police was on patrolling on 29.03.2020 for the purpose of enforcing the Covid related guidelines, at around 1930 hrs., they stopped a Car bearing registration No. GJ-01-KL- 1808. At the relevant time, the said Car was found to be driven by applicant No.1 herein while applicant No.2 was found seated on the front- seat. The patrolling party felt something suspicious and therefore, inspected the vehicle. Inside the vehicle, the patrolling party allegedly found stock of imported Cigarettes with the applicants in breach of the provisions of the said Act. A panchnama was drawn and the articles came to be seized, which consisted of one packet of "Malboro Smith" containing 13 Cigarettes worth Rs.260/- and one packet of "Malboro Ice Blast" containing 20 Cigarettes worth Rs.300/-. The respondent-original complainant, who was serving as Unarmed Head Constable at the relevant time and was a member of the patrolling party, registered the impugned complaint against the applicants herein, which has led to the filing of the present application.

3.1 Learned advocate Mr. Adeshra submitted that the quantity and value of articles seized would suggest that the Cigarettes were for

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personal consumption. Under no circumstances, the possession of Cigarettes for personal consumption would constitute a punishable offence. He submitted that the respondent-complainant has fabricated a completely concocted story inasmuch as there is no mention about seizure of any table in the impugned complaint nor the same is reflected in the statement of panch witnesses. None of the ingredients of the alleged offence punishable under Sections 7(3) and 20 of the said Act are found in this case as there is no sale or distribution of the articles so mentioned. It was, therefore, submitted that the impugned complaint is a clear abuse of the process of law and may be quashed and set aside.

4. Countering the arguments, learned APP Mr. Trivedi submitted that the Cigarettes did not bear any warning signs on its packets, which is a punishable offence. Whether the Cigarettes so seized were to be used of personal consumption or for sale / distribution is a matter of trial. Hence, the present application may not be entertained.

5. A perusal of the impugned complaint suggests that while the respondent-complainant was on Covid related patrolling duty, he noticed a Car approaching towards them. The patrolling party stopped the Car and made certain inquiries. Thereafter, they checked the vehicle and allegedly found the muddamal articles (Cigarettes) on the rear seat of the Car. The above averments in the complaint clearly suggests that the Cigarettes were allegedly found in the Car, after it was stopped by the patrolling party and thereafter, checked. Thus, the story that the applicants were selling and / or distributing the imported Cigarettes by arranging them on a table is unreliable and non-trustworthy.

6. The provisions of Section 7(3) and 20 of the Act are invoked

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against the applicants. For ready reference, the same are reproduced hereunder:

"7. Restrictions on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products.

-

(1) ....

(2) ....

(3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.

(4) ....

(5) ...."

20. Punishment for failure to give specified warning and nicotine and tar contents.-

(1) Any person who produces or manufactures 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 two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction, with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees.

(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."

7. In the present case, there is no sale or distribution of Cigarettes as alleged. In the complaint itself it is stated that the packets were seized

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from the Car of the applicants. Thus, the allegation that the imported Cigarettes were for sale / distribution on a public road is contradictory and none of the provisions of Sections 7(3) and / or 20 of the Act are attracted in the present case.

8. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:

(a) 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;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) 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;

(d) 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;

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(e) 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;

(f) 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;

(g) 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."

9. Having considered the allegations made in the impugned complaint as also the provisions of the Act, this Court is of the opinion that the impugned complaint is a clear misuse and abuse of the process of law and deserves to be quashed and set aside in exercise of the inherent powers under Section 482 of Cr.P.C.

10. For the foregoing reasons, the petition is allowed. The impugned complaint being FIR No.11191020200294 registered with Vastrapur Police Station, Ahmedabad City and all consequential proceedings initiated pursuant thereto are hereby quashed and set aside. Rule is made absolute.

(GITA GOPI, J) PRAVIN KARUNAN