Telangana High Court
Shaik Awez vs The State Of Telangana on 22 March, 2021
Bench: K.Lakshman
THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.2147 OF 2021
ORDER:
This petition is filed under Section 482 of Cr.P.C., seeking to
quash the proceedings in C.C.No.242 of 2020 on the file of Judicial
Magistrate of First Class, Bhainsa against the petitioners/accused. The
petitioners herein are accused Nos.1 to 4 in the above said C.C. The
offences alleged against them are under Sections 270 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 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 Bhainsa Rural Police Station, is not having power
to register a case in Crime No.71 of 2020 for the offences under
Sections 270 and 273 of IPC and Section 20 (2) of the COTP Act. He
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 has 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, 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
filing charge sheet is a grave illegality, as the Food Safety Officer
alone is competent to investigate and to file charge sheet following the
. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018
. 1992 Supp. (1) SCC 335
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 270 and 273 of IPC and Section 20 (2) of COTP Act.
Therefore, the said proceedings in C.C. No.242 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 (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) 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."
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 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) 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 (2) of COTP Act. Thus, the offence under Section 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 C.C.No.242 of 2020 on the
file of Judicial Magistrate of First Class, Bhainsa, are hereby quashed
against the petitioners - accused.
8. Since the proceedings in the aforesaid case are quashed against
the petitioners in C.C. No.242 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. Miscellaneous petitions pending, if any, in the
criminal petition, shall stand closed.
__________________
K. LAKSHMAN, J
Date: 22.03.2021
dv
