Syed Hyder Ali vs The Sub Inspector Of Police
2021 Latest Caselaw 710 Tel

         HONOURABLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.6243 OF 2020

COMMON ORDER:

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

quash the proceedings in C.C.No.5049 of 2020 on the file of V

Additional Metropolitan Magistrate - cum - V Additional Junior Civil

Judge, Cyberabad at L.B. Nagar, Ranga Reddy District against the

petitioners/ accused Nos.1 to 5. The petitioners are accused in the

above said C.C. The offences alleged against them are under Sections

188, 270, 273 and 284 of IPC and Sections 20(1) and 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 Sri Katika Ravinder Reddy, 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 L.B. Nagar Police Station, is not having power to

register a case in Crime No.441 of 2020 for the offences under

Sections - 188, 270, 273 and 284 of IPC and Sections 20(1) and 20(2)

of the COTP Act. He would further submit that the allegations against
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the petitioners are that they are selling the tobacco products to the

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

accused has committed the aforesaid offences. The learned counsel

by referring to the provisions of COTP Act, including 20 (1) and

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, he 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'),

investigating into the offences along with other offences under the

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


1
 . Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018
2
 . 1992 Supp. (1) SCC 335
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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, 273 and 284 of IPC and Sections 20(1) and

20(2) of the COTP Act. Therefore, the said proceedings in C.C.

No.5049 of 2020 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 (1) 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 allegations, it is apt

to refer to Section - 20 (1) and 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) Any person who produces or manufactures 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 two years, or with fine which may
          extend to five thousand rupees, or with both, and for the
          second or subsequent conviction, with imprisonment for a
          term which may extend to five years and with fine which
          may extend to ten thousand rupees.
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          (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 "

      6. 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 petitioners herein is that he

purchases the tobacco products and sells 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 lacks

the ingredients of Section - 20 (1) and 20 (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 Section - 20 (1) and 20 (2) of COTP Act.                 Thus, the

offence under Section - 20 (1) and 20 (2) of COTP Act is also liable to

be quashed against the petitioners.
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      7.   In view of the above discussion, the present Criminal

Petition is allowed, and the proceedings in C.C.No.5049 of 2020 on

the file of V Additional Metropolitan Magistrate - cum - V Additional

Junior Civil Judge, Cyberabad at L.B. Nagar, Ranga Reddy District,

are hereby quashed against the petitioners - accused.

      8. Since the proceedings in the aforesaid case are quashed

against the petitioners in C.C. No.5049 of 2020, 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.


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

criminal petition, shall stand closed.


                                                __________________
                                                  K. LAKSHMAN, J
05.03.2021

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