Dannarapu Vasudeva Rao vs Sub Inspector Of Police
2021 Latest Caselaw 1239 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

                      I.A.No.2 of 2021
                          In/And
             CRIMINAL PETITION No.3120 OF 2021
COMMON ORDER:

      This petition is filed under Section 482 of Cr.P.C., seeking to

quash the proceedings in C.C.No.3102 of 2020 on the file of I

Additional Judicial Magistrate of First Class, Khammam, against the

petitioners. The petitioners herein is accused Nos.1 and 2 in the above

said crime. The offences alleged against them are under Sections - 270

and 273 of IPC and Section - 20 (2) of the Cigarettes and Other

Tobacco Products (Prohibition of Advertisement and Regulation of

Trade and Commerce, Production, Supply and Distribution) Act, 2003

(for short 'COTP Act').     The petitioners also filed I.A.No.2 of 2021

for return of material, which was seized in the above said crime.


      2.   Heard Ms. C. Sunitha Kumari, learned counsel for the

petitioners, and learned Assistant Public Prosecutor appearing on

behalf of respondents. Perused the entire material available on record.

3. The learned counsel for the petitioners would submit that the

allegations levelled against the petitioners lacks the ingredients of the

aforesaid offences and, therefore, he sought to quash the proceedings

against the petitioners. In support of the same, he has placed reliance

on the judgment in Chidurala Shyamsubder v. State of Telangana1

rendered by a learned Single Judge of the High Court of Judicature at

Hyderabad for the States of Telangana and Andhra Pradesh.

4. On the other hand, learned Assistant Public Prosecutor has

tried to distinguish the principle laid down in the said judgment to the

facts of the present case.

5. Perused the judgment in Chidurala Shyamsubder (supra),

wherein a learned Single Judge of the High Court observed that

transportation of chewing tobacco or Khaini or Pan Masala do not

constitute an offence punishable under Section 270 of IPC and that

manufacturing of pan masala is not included in Section - 273 of IPC

and, therefore, the same is not an offence since it is not a noxious

food. The learned Single Judge further observed as under:

"....The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section - 270 of IPC and it would fall within Section 270 of IPC."

6. In the present case, the allegation levelled against the

petitioners herein is that they are purchasing the banned tobacco

. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018

products and selling them to retailers to get more profits illegally. In

view of the above said decision, the contents of the complaint lacks

the ingredients of Sections - 270 and 273 of IPC and, therefore, the

proceedings in the aforesaid crime for the said offences are liable to be

quashed against the petitioners herein - accused Nos.1 and 2.

7. As far as Section - 20 (2) of the COTP Act is concerned, as

stated above, the allegations against the petitioners are that they are

selling the tobacco products to the customers illegally in order to gain

wrongful profits. In view of the said allegation, 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."

8. Thus, Section - 20 of COTP Act deals with punishment for

failure to give specified warning and nicotine and tar contents. As

stated above, the allegation against the petitioners herein is that they

purchase tobacco products and sell them to customers at higher prices

to gain wrongful profits. But, in the complaint, there is no allegation

against the petitioners that they are carrying on 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

complaint lack the ingredients of Section 20 (2) of the COTP Act.

Even, there is no allegation that the seized products do not contain

labels with statutory warning. Thus, registering the crime for the said

offence against the petitioners is not only contrary to Section - 20 (2)

of COTP Act, but also contrary to the principle laid down in

Chidurala Shyamsubder (supra). In view of the same, the offence

under Section - 20 (2) of COTP Act is also liable to be quashed

against the petitioners - accused Nos.1 and 2.

9. In view of the above discussion, the present Criminal

Petition is allowed, and the proceedings in C.C.No.3102 of 2020 on

the file of I Additional Judicial Magistrate of First Class, Khammam,

are hereby quashed against the petitioners - accused Nos.1 and 2.

10. I.A. No.2 of 2021 is filed by the petitioners for return of

material, which were seized in the above said crime. Since the

proceedings in the aforesaid case are quashed against the petitioners

herein - accused Nos.1 and 2 in C.C.No.3102 of 2020 on the file of I

Additional Judicial Magistrate of First Class, Khammam, the

petitioners are at liberty to file an application before the learned

Magistrate for return of the seized stock and the learned Magistrate

shall consider the same to return the seized property, in accordance

with law, on proper identification and verification of ownership of

seized property under due acknowledgment.

As a sequel, miscellaneous petitions, if any, pending in the

criminal petition shall stand closed.

_________________ K. LAKSHMAN, J April 19, 2021 Note:

Registry is directed to annex a copy of Common Order, dated 27.08.2018 in Crl.P. No.3731 of 2018 & batch to this order.

(B/O.) dv