Kerala High Court
D.Somasekharan Nair vs State Of Kerala on 3 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. Nos.8638 & 8657 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 8638 OF 2018
AGAINST CC NO.720 OF 2015 OF JUDICIAL
MAGISTRATE OF FIRST CLASS COURT, NEYYATTINKARA
PETITIONER/ACCUSED:
D.SOMASEKHARAN NAIR
ACHUS STORES, VELLAYANI, NEMOM P.O.,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.RAMESH CHANDER
V.B.UNNIRAJ
R.S.GEETHA
K.SEEMA
ENOCH DAVID SIMON JOEL
P.ANITHA
K.GOPALAKRISHNA KURUP (SR.)
BALU TOM
RESPONDENT/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031.
2 HEALTH INSPECTOR,
(AUTHORIZED OFFICER), PRIMARY HEALTH CENTRE,
KALLIYOOR, THIRUVANANTHAPOURAM-695 042.
BY ADV.SRI.SANGEETHARAJ N.R., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 03.10.2024, ALONG WITH Crl.MC.8657/2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. Nos.8638 & 8657 of 2018
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2024:KER:73523
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 8657 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.719
OF 2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT -
VII,NEYYATTINKARA
PETITIONER/ACCUSED:
M.SASIDHARAN NAIR,
GENERAL MEERCHANT, SANTHIVILA, NEMOM P.O.,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.M.RAMESH CHANDER
V.B.UNNIRAJ
R.S.GEETHA
K.SEEMA
ENOCH DAVID SIMON JOEL
P.ANITHA
K.GOPALAKRISHNA KURUP (SR.)
BALU TOM
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM- 682031.
2 HEALTH INSPECTOR,
(AUTHORIZED OFFICER), PRIMARY HEALTH CENTRE,
KALLIYOOR, THIRUVANANTHAPURAM- 695042.
BY ADV.SRI.RENJITH T.R., SENIOR PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 03.10.2024, ALONG WITH Crl.MC.8638/2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C. Nos.8638 & 8657 of 2018
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2024:KER:73523
P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. Nos.8638 & 8657 of 2018
----------------------------------------------
Dated this the 03rd day of October, 2024
ORDER
These two Criminal Miscellaneous Cases are filed
to quash the proceedings in C.C.Nos.719/2015 &
720/2015 on the file of the Judicial First Class
Magistrate Court (Temporary), Neyyattinkara. The
same point is raised in these two cases, and
therefore I am disposing of these cases by a common
order.
2. I will narrate the facts in Crl.M.C.
No.8638/2018:
Petitioner challenges Annexure A1 complaint
filed by the 2nd respondent alleging offences
punishable under Sections 22(a) and 24(1) of the
Cigarettes and other Tobacco Products (Prohibition of
Crl.M.C. Nos.8638 & 8657 of 2018
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Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act,
2003 (for short 'Act 2003'). The 2nd respondent who
is a Health Inspector, purporting to be an authorized
officer under the Act 2003, entered into the shop of
the petitioner and carried out search and seizure of
certain advertisement materials pasted inside the
shop at its entrance. It is alleged that the
advertisements were in violation of the statutory
prescriptions of the Act 2003, and the prosecution is
initiated against the petitioner.
3. Same is the allegation in Crl.M.C.
No.8657/2018 also. There also Annexure A1 is the
complaint. The 2nd respondent, Health Inspector filed
the above complaint. The allegation in Annexure A1
complaint is that the advertisements were in violation
of the statutory prescriptions of the Act 2003.
4. According to the petitioners, even if the
Crl.M.C. Nos.8638 & 8657 of 2018
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entire allegations against the petitioners in these
cases are accepted, no offence under the Act 2003 is
attracted. Hence these Criminal Miscellaneous Cases
are filed.
5. Heard the learned Senior counsel Adv. M.
Ramesh Chander assisted by Adv. V.B. Unniraj,
appearing for the petitioners and the learned Public
Prosecutor.
6. The short point raised by the Senior
counsel, Adv. M. Ramesh Chander is that the offence
alleged is not attracted. The learned Senior counsel
takes me through the offences alleged in Annexure
A1 complaint in these cases and submitted that, even
if the entire allegations are accepted, no offence is
attracted.
7. The learned Public Prosecutor submitted
that the contentions raised by the petitioners are to
be raised before the trial court at the appropriate
Crl.M.C. Nos.8638 & 8657 of 2018
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stage.
8. This Court considered the contentions of
the petitioners and the Public Prosecutor. The brief
allegation against the petitioners in these cases is the
exhibition of illegal advertisement materials for
tobacco products and non-exhibition of a statutory
warning board in the shop. The offences alleged are
under Sections 22(a), 24(1) r/w 5(1)(a) of the Act
2003. I will consider Section 24(1) of the Act 2003.
Section 24 of the Act 2003 is extracted hereunder:
"24. Punishment for sale of cigarettes or any
other tobacco products in certain places or to
persons below the age of eighteen years.-
(1) Any person who contravenes the
provisions of section 6 shall be guilty of an offence
under this Act and shall be punishable with fine
which may extend to two hundred rupees.
(2) All offences under this section shall be
compoundable and shall be tried summarily in
accordance with the procedure provided for
summary trials in the Code of Criminal Procedure,
1973 (2 of 1974). "
Crl.M.C. Nos.8638 & 8657 of 2018
2024:KER:73523
9. Section 24(1) says that, any person who
contravenes the provisions of section 6 shall be guilty
of an offence under this Act. Section 6 of the Act
2003 is extracted hereunder:
"6. Prohibition on sale of cigarette or
other tobacco products to a person below the age
of eighteen years and in particular area.-No
person shall sell, offer for sale, or permit sale of,
cigarette or any other tobacco product-
(a) to any person who is under eighteen
years of age, and
(b) in an area within a radius of one
hundred yards of any educational institution."
10. Even if the entire allegations in Annexure
A1 produced in these Criminal Miscellaneous Cases
are accepted in toto, there is no case to the
prosecution that the accused sell, offer for sale, or
permit sale of cigarette or any other tobacco products
to any person who is under 18 years of age or in an
area within a radius of one hundred yards of any
Crl.M.C. Nos.8638 & 8657 of 2018
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educational institution. Therefore, the offence under
Section 24(1) of the Act 2003 is not attracted in the
facts and circumstances of the case.
11. The other offence alleged is under Section
22(a). Section 22 of the Act 2003 is extracted
hereunder:
"22. Punishment for advertisement of
cigarettes and tobacco products.-Whoever
contravenes the provision of section 5 shall, on
conviction, be punishable-
(a) in the case of first conviction, with
imprisonment for a term which may extend to two
years or with fine which may extend to one
thousand rupees or with both, and
(b) in the case of second or subsequent
conviction with imprisonment for a term which
may extend to five years and with fine which may
extend to five thousand rupees."
12. Section 22 says that, if an accused violates
the provision of Section 5, he is punishable as per the
said Act. Therefore, Section 5 of the Act 2003 is
Crl.M.C. Nos.8638 & 8657 of 2018
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relevant to attract Section 22 of the Act 2003.
Therefore, Section 5 of the Act 2003 is extracted
hereunder:
"5. Prohibition of advertisement of
cigarettes and other tobacco products.-
(1) No person engaged in, or purported to
be engaged in the production, supply or
distribution of cigarettes or any other tobacco
products shall advertise and no person having
control over a medium shall cause to be
advertised cigarettes or any other tobacco
products through that medium and no person
shall take part in any advertisement which directly
or indirectly suggests or promotes the use or
consumption of cigarettes or any other tobacco
products.
(2) No person, for any direct or indirect
pecuniary benefit, shall-
(a) display, cause to display, or permit or
authorise to display any advertisement of
cigarettes or any other tobacco product; or
(b) sell or cause to sell, or permit or
authorise to sell a film or video tape containing
advertisement of cigarettes or any other tobacco
product; or
(c) distribute, cause to distribute, or permit
Crl.M.C. Nos.8638 & 8657 of 2018
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or authorise to distribute to the public any leaflet,
hand-bill or document which is or which contains
an advertisement of cigarettes or any other
tobacco product; or
(d) erect, exhibit, fix or retain upon or over
any land, building, wall, hoarding, frame, post or
structure or upon or in any vehicle or shall display
in any manner whatsoever in any place any
advertisement of cigarettes or any other tobacco
product:
Provided that this sub-section shall not
apply in relation to-
(a) an advertisement of cigarettes or any
other tobacco product in or on a package
containing cigarettes or any other tobacco
product;
(b) advertisement of cigarettes or any other
tobacco product which is displayed at the entrance
or inside a warehouse or a shop where cigarettes
and any other tobacco products are offered for
distribution or sale.
(3) No person, shall, under a contract or
otherwise promote or agree to promote the use or
consumption of-
(a) cigarettes or any other tobacco product;
or
(b) any trade mark or brand name of
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cigarettes or any other tobacco product in
exchange for a sponsorship, gift, prize or
scholarship given or agreed to be given by
another person. "
13. Section 5(1) of the Act 2003 says that, no
person engaged in, or purported to be engaged in the
production, supply or distribution of cigarettes or any
other tobacco products shall advertise and no person
having control over a medium shall cause to be
advertised cigarettes or any other tobacco products
through that medium and no person shall take part in
any advertisement which directly or indirectly
suggests or promotes the use or consumption of
cigarettes or any other tobacco products. Clause (a)
of the proviso to Section 5 says that the sub-section
shall not apply in relation to an advertisement of
cigarettes or any other tobacco product in or on a
package containing cigarettes or any other tobacco
Crl.M.C. Nos.8638 & 8657 of 2018
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product. Clause (b) of the proviso to Section 5 says
that the sub-section shall not apply in relation to an
advertisement of cigarettes or any other tobacco
product which is displayed at the entrance or inside a
warehouse or a shop where cigarettes and any other
tobacco products are offered for distribution or sale.
14. This Court perused the Mahazar prepared
at the time of inspection. The admitted case is that
the advertisement was displayed at the entrance of
the shop. If that be the case, sub Section in Section
5 is not applicable. The result of the above
discussion is that the offences alleged against the
petitioners are not attracted.
Therefore, these Criminal Miscellaneous Cases
are allowed in the following manner:
1. In Crl.M.C. No.8638/2018, all
further proceedings against the
petitioner in C.C. No.720/2015 on
Crl.M.C. Nos.8638 & 8657 of 2018
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the file of the Judicial First Class
Magistrate Court (Temporary),
Neyyattinkara are quashed.
2. In Crl.M.C. No.8657/2018, all
further proceedings against the
petitioner in C.C. No.719/2015 on
the file of the Judicial First Class
Magistrate Court (Temporary),
Neyyattinkara are quashed.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
Crl.M.C. Nos.8638 & 8657 of 2018
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PETITIONER ANNEXURES
ANNEXURE A1 THE COMPLAINT IN C.C.NO.719/2015 ON
THE FILES OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT (TEMPORARY)
NEYYATTINKARA AS SERVED ON THE
PETITIONER.
ANNEXURE A2 TRUE COPY OF CMP NO.974/2016 BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE
COURT (TEMPORARY) NEYYATTINKARA
FILED BY THE PETITIONER IN
C.C.NO.719/2015.
ANNEXURE A3 THE COPY OF THE ORDER DATED
13.08.2018 IN CMP NO.974/2016 IN
C.C.NO.720/2015 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT
(TEMPORARY) NEYYATTINKARA.
Crl.M.C. Nos.8638 & 8657 of 2018
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PETITIONER ANNEXURES
ANNEXURE A1: THE COMPLAINT IN CC NO.720/2015 ON
THE FILES OF THE JUDICIAL FIRST
CLASS MAGISTRATE COURT (TEMPORARY)
NEYYATTINKARA AS SERVED ON THE
PETITIONER.
ANNEXURE A2: TRUE COPY OF CMP NO.973/2016 BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE
COURT(TEMPORARY) NEYYATTINKARA
FILED BY THE PETITIONER IN
CCNO.720/2015.
ANNEXURE A3: THE COPY OF THE ORDER DATED
13.08.2018 IN CMP 973/2016 IN CC
NO.720/2015 BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE
COURT(TEMPORARY), NEYYATTINKARA.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
