Abdul Azher vs The State Of Telangana
2021 Latest Caselaw 1267 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

                      I.A.No.3 of 2021
                          In/And
             CRIMINAL PETITION No.2391 OF 2021
COMMON ORDER:

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

quash the proceedings in Cr.No.182 of 2021 on the file of

Ramachandrapuram P.S., Cyberabad, against the petitioners. The

petitioners herein are accused Nos.1 and 2 in the above said crime.

The offences alleged against them are under Sections - 273, 188 read

with 34 of IPC and Section 3(m) - 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.3 of 2021

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


      2. Heard Mr. S.M. Subhan, 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 188 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 - 273 and 188 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 - 3 (m) and 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 - 3(m) and 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 3(m) and 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 - 3(m) 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 - 3(m) and 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 Cr.No.182 of 2021 on the

file of Ramachandrapuram P.S., Cyberabad, are hereby quashed

against the petitioners - accused Nos.1 and 2.

10. I.A. No.3 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 Cr.No.182 of 2021, the Station House

Officer, Ramachandrapuram P.S, is directed to return the seized

property, 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 20, 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