Telangana High Court
Cholleti Rakesh vs Sub Inspector Of Police on 17 March, 2021
Bench: K.Lakshman
HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2048 OF 2021
With I.A. No.2 OF 2021
COMMON ORDER:
This petition is filed under Section 482 of Cr.P.C., seeking to
quash the proceedings in Cr.No.50 of 2021 on the file of Ghatkesar
Police Station, Rachakonda District against the petitioners/accused
Nos.1 to 3 and for a consequential direction as to the Police to return
the seized property. The petitioners are accused in the above said
Crime. The offences alleged against them are under Sections 272 and
273 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'). Whereas, the petitioners also filed I.A.No.2
of 2021 for return of material, which were seized in the above said
crime.
2. Heard Sri K.Surender, 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 power to register a case in
Cr.No.50 of 2021 on the file of Ghatkesar Police Station, Rachakonda
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District for the offences under Sections 272 and 273 of IPC and
Sections and 20(1) and 20(2) of the COTP Act. He would further
submit that the allegations against 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 Sections 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
1
. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018
2
. 1992 Supp. (1) SCC 335
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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
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 - Sections 272 and 273 of IPC and Sections 20(1) and
20(2) of the COTP Act. Therefore, the said proceedings in Cr.No.50
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 Sections - 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 Sections - 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
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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.
(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 allegations against the petitioners herein are 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 are no allegations 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 Sections - 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 offences against the petitioners is
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also contrary to Section - 20(1) and 20 (2) of COTP Act. Thus, the
offences under Section - 20(1) and 20 (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 Cr.No.50 of 2021 on the
file of Ghatkesar Police Station, Rachakonda District, are hereby
quashed against the petitioners - accused Nos.1 to 3.
8. It is submitted by the learned counsel for the petitioners
that the seized property is in the custody of Police, Ghatkesar Police
Station, and sought direction to the Station House Officer, Ghatkesar
Police Station, Rachakonda District, to return the seized property to
the petitioners.
9. I.A. No.2 of 2020 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/Accused No.1 to 3 in Cr.No.50 of 2021, the Station House
Officer, Ghatkesar Police Station is directed to return the seized
property on proper identification and verification of ownership of
seized property under due acknowledgment. Accordingly, I.A. No.2
of 2020 is closed.
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As a sequel, miscellaneous petitions pending, if any, in the
criminal petition, shall stand closed.
__________________
K. LAKSHMAN, J
17.03.2021
dv
