Chennaboina Venkatesh vs Sub Inspector Of Police
2021 Latest Caselaw 629 Tel

      THE HONOURABLE SRI JUSTICE K. LAKSHMAN

I.A. No.1 OF 2021 IN/AND CRIMINAL PETITION No.1210 OF 2021

COMMON ORDER:

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

quash the proceedings in C.C.No.75 of 2021 on the file of the XXIV

Additional Metropolitan Magistrate, Rachakonda at Hayathnagar

against the petitioners/accused. The petitioner also filed I.A.No.1 of

2021 for return of material and Ashok Leyland Dosth four wheeler

bearing registration No.TS-28-TA-1531, which was seized in the

above said crime. The petitioner is accused in the above said C.C.

The offences alleged against them are under Sections 188, 270 and

273 of IPC and Section 20(2) read with Section 7(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 Ms.C.Suneetha Kumar, learned counsel for the

petitioners, and learned Assistant Public Prosecutor. Perused the

entire material available on record.

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

Sub-Inspector of Police is not having authority to lodge the present

complaint, and the Abdullapurmet Police Station, is not having power

to register a case in Crime No.4 of 2021 for the offences under

Sections 188, 270 and 273 of IPC and Section 20(2) read with Section

7(2) of the COTP Act. She would further submit that the allegation

against the petitioners is that they are selling the tobacco products to

the customers illegally in order to gain wrongful profits. Thus, the

accused have committed the aforesaid offences. The learned counsel

by referring to the provisions of COTP Act, including 20 (2), would

submit that the allegations made in the charge sheet do not attract the

ingredients of the aforesaid provisions and, therefore, the aforesaid

offences alleged against the petitioners are liable to be quashed. In

support of the same, she has placed reliance on the judgment in

Chidurala Shyamsubder v. State of Telangana1 rendered by the

High Court of Judicature at Hyderabad for the States of Telangana and

Andhra Pradesh. Whereas, the learned Public Prosecutor has tried to

distinguish the principle laid down in the said judgment to the facts of

the present case.

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

wherein a learned Single Judge of the High Court following the

guidelines laid down by the Hon'ble Supreme Court in State of

Haryana v. Bhajan Lal2, held that the police are incompetent to take

cognizance of the offences punishable under Sections 54 and 59 (1) of

the Food Safety and Standards Act, 2006 (for short 'FSS Act'),

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

. 1992 Supp. (1) SCC 335

investigating into the offences along with other offences under the

provisions of the Indian Penal Code, 1860. It was further held that

filing charge sheet is a grave illegality, as the Food Safety Officer

alone is competent to investigate and to file charge sheet following the

Rules laid down under Sections - 41 and 42 of FSS Act. In the

present case, the police have registered the crime for the offences

under Sections 188, 270 and 273 of IPC. Therefore, the said

proceedings in C.C. No.75 of 2021 against the petitioners herein are

contrary to the principle laid down in Chidurala Shyamsubder

(Supra) and, therefore, the same are liable to be quashed.

5. As far as Section 20 (2) read with 7 (2)of the COTP Act is

concerned, as stated above, the allegations against the petitioners is

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) and 7 (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.

7. Restrictions on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products. --

(1) ...

(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning."

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

failure to give specified warning and nicotine and tar contents and

Section 5 deals with restrictions on trade and commerce in and

production, supply and distribution of cigarettes and other tobacco

products. As stated above, the allegation against the petitioners herein

is that they purchase the tobacco products and sell them to customers

at higher prices to gain wrongful profits. The petitioners are neither

traders, nor suppliers/distributors of cigarettes or any other tobacco

products. There is no allegation in the charge sheet against the

petitioners that they are carrying on the 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

charge sheet lack the ingredients of Section 20 (2) read with 7 (2) of

the COTP Act. In the entire charge sheet, there is no allegation that

the seized products do not contain the labels as well as statutory

warning. Therefore, registering the crime for the said offence against

the petitioners is also contrary to Sections 20 (2) and 7 (2) of COTP

Act. Thus, the offence under Section 20 (2) and 7 (2) of COTP Act is

also liable to be quashed against the petitioners.

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

Petition is allowed, and the proceedings in C.C.No.75 of 2021 on the

file of the XXIV Additional Metropolitan Magistrate, Rachakonda at

Hayathnagar, are hereby quashed against the petitioner - accused.

8. I.A. No.1 of 2021 is filed by the petitioners for return of

material as well as Ashok Leyland Dosth four wheeler bearing

registration No.TS-28-TA-1531, which were seized in the above said

crime. Since the proceedings in the aforesaid case are quashed against

the petitioners in C.C. No.75 of 2021, the petitioners are at liberty to

file appropriate application for return of seized property, including the

vehicle, and the learned Magistrate shall consider the same and return

the seized property and the vehicle on proper identification and

verification of ownership of seized property under due

acknowledgment. Accordingly, I.A. No.1 of 2021 is closed.

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

criminal petition, shall stand closed.

__________________ K. LAKSHMAN, J Date: 01.03.2021 PGS