Dannarapu Vasudeva Rao vs Subinspector Of Police And ...
2021 Latest Caselaw 1242 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

                      I.A.No.2 of 2021
                          In/And
             CRIMINAL PETITION No.3057 OF 2021
COMMON ORDER:

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

quash the proceedings in C.C.No.443 of 2021 on the file of I

Additional Judicial Magistrate of First Class, Khammam, against the

petitioner. The petitioner herein is sole accused in the above said

crime. The offences alleged against him 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

petitioner, and learned Assistant Public Prosecutor appearing on

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

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

allegations levelled against the petitioner lacks the ingredients of the

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

against the petitioner. 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

petitioner herein that he is purchasing the banned tobacco products

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

and selling them to retails 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 petitioner herein - accused.

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

stated above, the allegations against the petitioner is that he is 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 petitioner herein is that he

purchases tobacco products and sells them to customers at higher

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

allegation against the petitioner that he is 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 petitioner 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 petitioner - accused.

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

Petition is allowed, and the proceedings in C.C.No.443 of 2021 on the

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

hereby quashed against the petitioner - accused.

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

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

proceedings in the aforesaid case are quashed against the petitioner

herein - accused in C.C.No.443 of 2021 on the file of I Additional

Judicial Magistrate of First Class, Khammam, the petitioner is at

liberty to file an application before the learned Magistrate for return of

the seized property 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