Shaik Rafeeq Ahmed vs The State Of Telangana
2021 Latest Caselaw 996 Tel

           HONOURABLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.2533 OF 2021

ORDER:

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

quash the proceedings in C.C.No.366 of 2020 on the file of the

Additional Judicial First Class Magistrate, Nirmal, against the

petitioner/Accused No.2 and for a consequential direction to return the

seized property. The petitioner herein is accused No.2 in the above

said Crime. The offences alleged against the petitioner are under

Section 20 (2) of Cigarette & Tobacco Product Act, 2003 (for short

'COTPA Act').

2. Heard learned counsel for the petitioner and the learned

Assistant Public Prosecutor. Perused the entire material available on

record.

3. The learned counsel for the petitioner would submit that

the Sub-Inspector of Police is not having power to register a case in

Cr.No.2 of 2020 under Section 20(2) of the COTP Act. He would

further submit that the allegations against the petitioner are that he is

selling the tobacco products to the customers illegally in order to gain

wrongful profits. 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

provision and, therefore, the aforesaid offences alleged against the

petitioner 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. As stated above, the allegations against the petitioner are that

he is 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 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 "

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

5. 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 petitioner herein are that he

purchases the tobacco products and sell them to customers at higher

prices to gain wrongful profits. The petitioner is neither trader, nor

supplier/distributor of cigarettes or any other tobacco products. There

are no allegations in the charge sheet against the petitioner that he is

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 offence against the petitioner 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 petitioner.

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

Petition is allowed and the proceedings in C.C.No.366 of 2020 on the

file of the Additional Judicial First Class Magistrate, Nirmal, are

hereby quashed against the petitioner - accused No.2.

7. It is submitted by the learned counsel for the petitioner

that the seized property is in the custody of the Additional Judicial

First Class Magistrate, Nirmal and sought direction to the learned

Magistrate, to return the seized property to the petitioner.

8. Since the proceedings in the aforesaid case are quashed

against the petitioner/Accused No. 2 in C.C.No.366 of 2020 on the file

of the Additional Judicial First Class Magistrate, Nirmal , the learned

Magistrate is directed to return the seized property 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 26.03.2021 dv