Pramod Kumar [email protected] Pramod Sahu vs State Of Odisha
2023 Latest Caselaw 6805 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLMC No.1017 of 2022

Pramod Kumar [email protected] Pramod Sahu     ....              Petitioner
                          Mr. Biraja Prasanna Das, Advocate


                              -Versus-


State of Odisha                          ....         Opposite Party
                                          Mr. S.S. Mohapatra, ASC

            CORAM:
            JUSTICE R.K. PATTANAIK

              DATE OF JUDGMENT:30.05.2023

1.

Instant petition under Section 482 of the Cr.P.C is filed by the petitioner assailing the impugned order of cognizance dated 8th July, 2019 passed in connection with G.R. Case No. 406 of 2018 by the learned S.D.J.M., Rayagada corresponding to Rayagada P.S. Case No. 25 of 2018 on the grounds inter alia that the same is not tenable in law particularly with respect to offence punishable under Sections 272 and 273 read with 34 of the I.P.C. and hence, liable to be interfered with and quashed in exercise of the Courts' inherent jurisdiction.

2. In the case at hand, an F.I.R was drawn by the informant, namely, S.I. of Police of G.R.P.S., Rayagada alleging therein that while he was on duty along with another official in the railway platform area of Rayagada received information from reliable source about the petitioner in possession of Tobacco (GHUTKA) and transporting the same unauthorizedly and accordingly, proceeded to the spot and found 25 plastic polythene bags kept in front of the parcel office and on inquiry and verification, it was revealed that there was no such authorization to possess it and was revealed that the same was supplied by the named

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

person, who belongs to Rourkela. It has been alleged therein that the manufacturer of GHUTKA could not be disclosed by the petitioner and after verification, it was ascertained that the same contained Tobacco, which is a product prohibited under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to the 'COPTA') and it was being possessed for transportation and selling knowing fully that the same is injurious to human consumption. Accordingly, Rayagada P.S. Case No. 25 of 2018 was registered under Sections 420, 272 & 273 read with 34 of the I.P.C besides Section 20 of COPTA. On completion of investigation, the petitioner was chargesheeted under the alleged offences, consequent upon which, the learned Court below took cognizance of the same by the impugned order dated 8th July, 2019 in connection with G.R. Case No. 406 of 2018, which is currently under challenge.

3. Heard Mr. Das, learned counsel for the petitioner and Mr. Mohapatra, learned ASC for the State-opposite party.

4. Mr. Dash, learned counsel for the petitioner submits that the F.I.R as at Annexure-1 never disclosed commission of any cognizable offence by the petitioner, however, the informant falsely foisted a case against him. It is further submitted that the material evidence collected during investigation does not transpire the active involvement of the petitioner in any such crime, inasmuch as, none of the witnesses examined under Section 161 Cr.P.C. ever disclosed or stated anything adversely against him. Mr. Das would submit that in so far as the offences under Sections 272 and 273 read with 34 of the I.P.C are concerned, its essential ingredients are not fulfilled so as to bring the seized GHUTKA within the category of food item and so therefore, there is no

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

question of any adulteration or sale of noxious food article, but the learned Court below lost sight of the same and has erroneously taken cognizance of the said offences. It is contended that GHUTKA has never been a food or a drink item as per the norms of Food Safety Standards Authority of India and does not fall within the definition of 'food' as specified in Section 3(1)(j) of the Food Safety Standards Act, 2006 (in short 'FSS Act'). That apart, according to Mr. Das, GHUTKA and Pan Masala cannot be treated as processed items but are covered under the COPTA and therefore, the very registration of the case under Sections 272 and 273 read with 34 of the I.P.C and taking cognizance thereof under Annexure-2 Series is not tenable in law and hence, liable to be quashed in the interest of justice.

5. Mr. Mohapatra, learned ASC for the State opposite party, on the other hand, submitted that since GHUTKA and its selling is prohibited as per the provisions of COPTA, rightly, therefore, the learned court below took cognizance of the offence under Section 20 of the said Act against the petitioner. It is further submitted that since GHUTKA like other items mentioned in Section 3(1)(j) of the FSS Act is intended for human consumption, the same is to be held as a food product and as according to the chargesheet, the seized sample of Tobacco was found to contain nicotine, which is harmful for human consumption, hence, therefore the order of cognizance dated 8th July, 2019 vis-à-vis offence under Sections 272 and 273 read with Section 34 I.P.C is also justified. That apart, Mr. Mohapatra submits that the petitioner is alleged of having evaded payment of tax (GST) and therefore, a case under Section 420, I.P.C. is registered against him. Thus, it is submitted that the impugned order under Annexure-2 Series is absolutely justified and in accordance with law.

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

6. Mr. Das, learned counsel for the petitioner, while advancing an argument to the effect that GHUTKA seized from the petitioner not to be a food product and hence, offences under Sections 272 and 273 I.P.C are not attracted, cited a decision in the case of Joshy K.V. and Others Vrs. State of Kerala and Others decided in W.P.(C) No.13580 of 2012 (V) by judgment dated 20th December, 2012. It is contended that in the aforesaid decision, Tobacco is not held to be a food product as it might at best an intoxicant, which is not used for taste or nourishment. Even though, it is a product covered by the provisions of COPTA, but the FSS Act has not application to it. The said argument is challenged by Mr. Mohapatra, learned ASC for the State by contending that GHUTKA, a Tobacco product and a substance intended for human consumption and hence, it falls within the definition of Section 3(1)(j) of the FSS Act and as according to chargesheet, since the seized sample was found to be noxious containing Nicotine, the offences under Sections 272 and 273 I.P.C are clearly attracted.

7. Since the recovery and seizure is shown against the petitioner with respect to the GHUTKA (Tobacco product) which is one of the items under the schedule to the (COPTA) and it was allegedly being transported for sale, hence, as it is claimed that the provisions of sub-section-2 of Section 20 of the said Act are satisfied. Without expressing anything on the merits of such claim, the Court is of the considered view that whether any such offence has been committed by the petitioner or not is to be examined by the learned Court below during and in course of inquiry and trial, if the petitioner is not discharged. The decision as to whether a case under Section 20(2) of the COPTA is prima facie established is a matter to be thrashed out by referring to the material evidence collected and submitted along with chargesheet. Similarly, as regards Section 420 I.P.C., if at all any such offence is

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

said to have been committed by the petitioner or not should be left open for a decision by the learned court below. In fact, Mr. Das, learned counsel for the petitioner confined the argument as against the offences under Sections 272 and 273 read with 34 of I.P.C. in respect of which the learned court below has taken cognizance of. So, therefore, the consideration before the Court is, whether, the seized GHUTKA product is a food item within the definition of Section 3(1)(j) of the FSS Act.

8. In Joshy K.V. (supra), the challenge was whether, Tobacco by itself with some additives like lime or other flavouring substances can be prevented or seized in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 (shortly as 'Regulations') being a food product. Under the Prevention of Food Adulteration Act, 1954 (PFA Act), Section 2 (v) defined food as any article used as food or drink for human consumption and includes articles which ordinarily enter into or used in the composition or preparation of human food, any flavouring matter or condiments and any other article so notified by the Government of India. The definition of food as appearing in Section 2(v) of the PFA Act is quite expansive so as to include any such article used as a food or drink meant for human consumption and it is inclusive in nature. The decision in P.K. Tejani Vrs. Mahadeo Ramchandra Dange (1974)1 SCC 167 and Krishan Gopal Sharma Vrs. Govt. of N.C.T. of Delhi 1996 (4) SCC 513 which have been referred to in Joshy K.V. (supra) are in connection with and reference to the PFA Act, which has been succeeded by the FSS Act and therefore, whether, GHUTKA product is a food or not is to be examined in terms of Section 3(1)(j) of the FSS Act.

9. For ready reference, Section 3(1)(j) of the FSS Act is reproduced herein below:

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

''(j) "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.''

On a sincere reading of the aforesaid provision, it is made to understand that any substance whether processed or unprocessed or partially processed intended for human consumption including primary food and other items mentioned therein with exception is held to be a food. According to it, packaged drinking water, alcoholic drink, chewing gum, etc. are included within the definition of food.

10. According to the State, since the Tobacco is a substance with additive is a food product as it is used for human consumption as no one takes as it is. In normal parlance, Tobacco is not a food item. But, in a processed form, when it is used for chewing, whether, it becomes a food product is a question. According to Section 3(1)(j) of the FSS Act, not only food is defined but by virtue of a legal fiction, certain other items, which are not generally treated as a food have been included. In the humble view of the Court, it does not by itself mean that a product not

Pramod Kumar [email protected] Pramod Sahu Vrs. State of Odisha

named in the inclusive definition and which is not a food becomes a food product unless it is shown that the same is consumed for taste or nourishment as held in P.K. Tejani (supra). Therefore, the Court is in agreement with the judgment rendered in Joshy K.V. (supra) which is also to the effect that Tobacco is a product which is to be avoided is clear and conspicuous from Regulation 2.3.4 of the Regulations itself which reinforces the view that it is not to be a food product. It also approved the decision in Ram Babu Rastogi & Others Vrs. State Through Food Inspector (PFA), Government of NCT of Delhi (Crl. M.C. 1360 of 2011) of Delhi High Court and Dharampal Satyapal Ltd. Vrs. Commercial Tax Officer (CTO), Coimbatore 2009 (243) ELT 179 of the Madras High Court and therefore, the inevitable conclusion is that the seized Tobacco though covered by the provisions of COPTA, however, the FSS Act has no application to it and hence, not a food product.

11. Accordingly, it is ordered.

12. In the result, the CRLMC stands allowed in part. As a necessary corollary, the impugned order of cognizance dated 8th July, 2019 passed in connection with G.R. Case No. 406 of 2018 by the learned S.D.J.M., Rayagada corresponding to Rayagada P.S. Case No. 25 of 2018 is hereby quashed against the petitioner vis-à-vis Sections 272 and 273 read with 34 I.P.C. and not the remainder.

(R.K. Pattanaik) Judge

Signature Not Verified Digitally Signed Balaram Signed by: BALARAM BEHERA Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 30-May-2023 15:03:20