Abdul Wasea Hassan vs The State Of Telangana
2021 Latest Caselaw 949 Tel

           HONOURABLE SRI JUSTICE K. LAKSHMAN

                         I.A. No.3 OF 2021
                              IN/AND
             CRIMINAL PETITION No.2484 OF 2021

COMMON ORDER:

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

quash the proceedings in S.C.No.338 of 2019 on the file of II

Additional Metropolitan Sessions Judge, Hyderabad against the

petitioners/ accused Nos.A-1 to A-3 and for a consequential direction

as to the Police to return the seized property. The petitioners are

accused in the above said S.C. The offences alleged against them are

under Sections 328 and 188 of IPC and Section 4 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'). Whereas,

the petitioners also filed I.A.No.3 of 2020 for return of material,

which was seized in the above said crime.


      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, Humayunnagar is not having power to
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register a case in Cr.No.254 of 2017 for the offences under Sections -

328 and 188 of IPC and Section 4 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 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, 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'),


1
 . Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018
2
 . 1992 Supp. (1) SCC 335
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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 328 and 188 of IPC and Section 4 and Section 20(2) of COTPA

Act. Therefore, the said proceedings in S.C. No.338 of 2019 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 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 (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
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           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 lacks

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 offences 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 S.C.No.338 of 2019 on the

file of II Additional Metropolitan Sessions Judge, Hyderabad are

hereby quashed against the petitioners- accused.
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      8. I.A. No.3 of 2021 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 in

S.C. No.338 of 2019, the petitioners are at liberty to file appropriate

application for return of seized property and the learned Magistrate

shall consider the same and return the seized property on verification

of ownership of seized property under due acknowledgment.

Accordingly, I.A. No.3 of 2021 is closed.


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

criminal petition, shall stand closed.


                                                 __________________
                                                   K. LAKSHMAN, J
24.03.2021

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