Telangana High Court

Gampa Rohit vs The State Of Telangana on 21 June, 2021

Bench: K.Lakshman

            HON'BLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.2576 OF 2021
ORDER:

This Criminal Petition is filed under Section - 482 of the Code

of Criminal Procedure, 1973 seeking to quash the proceedings in

Crime No.241 of 2020 pending on the file of Rajanna Sircilla Police

Station. The petitioner herein is accused No.6 in the said case. The

offences alleged against him are under Sections - 188, 269 and 270 of

IPC and Section - 3 of the Epidemic Disease Act, 1897 (for short

'Act, 1897') and Section - 34 (a) of the A.P. Excise Act.

2. Heard Mr. K. Ramakrishna, learned counsel for the

petitioner and the learned Assistant Public Prosecutor appearing on

behalf of the respondent - State.

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

allegations levelled against the petitioner lacks the ingredients of the

aforesaid offences. He would further submit that the petitioner is the

owner of M/s. Shiva Bar and Restaurant having a valid license and

permit to sell liquor and he did not indulge in illegal sale of liquor.

He would further contend that since lock down was imposed by the

Government due to COVID-19 pandemic, the petitioner was not doing

any business and just he kept the stock in the lodge situated in the first

floor of the said Bar. Learned counsel would also contend that the

petitioner having purchased the liquor under a valid invoice did not

indulge in any illegal sale or transport of liquor. He would further

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submit that even by order dated 30.04.2021 in Crl.P. No.6104 of 2020

ordered for release of the crime vehicle belonging to the petitioner

herein 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. In view of the above rival submissions, it is apt to refer to

Sections - 269 and 270 of IPC, which are as under:

"269. Negligent act likely to spread infection of disease dangerous to life.--Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

"270. Malignant act likely to spread infection of disease dangerous to life.--Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term

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

KL,J Crl.P. No.2576 of 2021

which may extend to two years, or with fine, or with both."

6. In Chidurala Shyamsubder (supra), 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, 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."

7. Like-wise, Section - 269 of IPC deals with negligent act

likely to spread infection of disease dangerous to life. But, there is no

such allegation mentioned in the complaint by the police.

8. In the present case, the allegations against the petitioner

herein are that he and others were illegally shifting liquor during Lock

Down period with an intention to sell the same in black market to

make wrongful gain. Thereafter, the police seized the said stock and

the same is lying with them. In view of the same, the contents of the

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complaint lacks the ingredients of Sections - 188, 269 and 270 of IPC

and, therefore, the proceedings in the aforesaid case for the said

offences are liable to be quashed against the petitioner herein -

accused No.6.

9. As far as offence under Section 3 - of the Act, 1897, is

concerned, it deals with 'penalty'. It is apt to extract the same, which

is as under:

"Section - 3: Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 )".

10. In view of the above provision, coming to the case on hand,

the allegation against the petitioner herein is that he is selling the

liquor at higher rates during Lock Down for wrongful gain. But, the

police neither mentioned in the charge sheet as to whom the petitioner

was selling such liquor at higher rates, nor examined those persons by

recording their statements under Section - 161 of Cr.P.C. Thus, the

contents of the complaint do not attract the offence punishable under

Section - 3 of the Act, 1897 against the petitioner herein. Therefore,

the proceedings against the petitioner herein for the offence

punishable under Section - 3 of the Act, 1897 are also liable to be

quashed in the above case.

KL,J Crl.P. No.2576 of 2021

11. As far as offence under Section 34 (a) of the A.P. Excise

Act is concerned, it is trite to note that Chapter - 7 deals with

'offences and penalties'. Section - 34 deals with 'Penalties for illegal

import etc.' and the same is extracted as under:

"34. Penalties for illegal import etc. - Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,-