Nitesh Modi vs The State Of Telangana
2021 Latest Caselaw 1330 Tel

                     HON'BLE SRI JUSTICE K. LAKSHMAN

                     CRIMINAL PETITION No.6708 OF 2019
ORDER:

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

quash the proceedings in C.C.No.14337 of 2019 on the file of XVI

Additional Chief Metropolitan Magistrate, Hyderabad. The petitioner

herein is accused No.4 in the above said crime. The offences alleged

against him are under Sections - 420, 272 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').

2. Heard Mr. S.M. Subhan, 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.

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

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 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 -

272 and 273 of IPC and so also Section 420 of IPC and, therefore, the

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

quashed against the petitioner herein - accused No.4.

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 No.4.

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

is allowed, and the proceedings in XVI Additional Chief Metropolitan

Magistrate, Hyderabad, are hereby quashed against the petitioner -

accused No.4.

10. Though the proceedings in the aforesaid case are quashed

against the petitioner herein - accused No.4 in C.C.No.14337 of 2019,

learned counsel for the petitioner does not insist for release of the seized

property stating that the said stock was seized in the year 2017 and due

to efflux of time, the same might have got damaged by now.

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

criminal petition shall stand closed.

_________________ K. LAKSHMAN, J April 23, 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