Mohd. Khaja Pasha vs The State Of Telangana
2024 Latest Caselaw 1479 Tel

Telangana High Court

Mohd. Khaja Pasha vs The State Of Telangana on 15 April, 2024

     THE HONOURABLE SMT. JUSTICE K. SUJANA
         CRIMINAL PETITION No.2309 OF 2024
ORDER:

This Criminal Petition is filed under Section 482 of the Code

of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the

proceedings against the petitioners/accused Nos.1 and 2 in

S.C.No.24 of 2021, on the file of the learned VIII Additional Chief

Metropolitan Magistrate, Hyderabad, registered for the offences

punishable under Sections 188, 269, 270, 272, 273 of the Indian

Penal Code, 1860 (for short 'the IPC'), Section 8 (c) read with

Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'the NDPS Act') and Section 20 (2)

of the Cigarettes and Other Tobacco Products Act, 2003 (for short

'the COTP Act').

2. Brief facts of the case of the petitioners is that on 27.03.2020

while police were in patrolling, they found the petitioners

possessing, selling and purchasing the banned products viz., gutka

and ganja respectively, for which, the Police registered a case

against the petitioners for the offences alleged against the

petitioners are that Sections 188, 269, 270, 272 and 273 of the

IPC, Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS Act

and Section 20 (2) of the COTP Act, respectively. Basing on the

said complaint the Police registered the case in Crime No.53 of

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2020 and after completion of investigation, they filed charge sheet

and the same was numbered as S.C.No.24 of 2021 on the file of the

VIII Additional Chief Metropolitan Magistrate, Hyderabad.

3. Heard Sri Y. Bala Murali, learned counsel appearing on

behalf of the petitioners as well as Sri S. Ganesh, learned Assistant

Public Prosecutor appearing on behalf of the respondents.

4. Learned counsel for the petitioners submitted that the

allegations levelled against the petitioners are vague and did not

attract any of the offence. Making his submission, he relied on the

judgment of this Court vide order dated 05.07.2021 in Criminal

Petition No.152 of 2020, wherein this Court quashed the

proceedings against the petitioners and he further submitted that

the present matter is also covered by that order. As such, he

prayed the Court to allow the Criminal Petition.

5. Per contra, learned Assistant Public Prosecutor submitted

that he has no objection with regard to Sections 188, 269, 270,

272, 273 of IPC and Section 20 (2) of the

COTP Act. The petitioners were also charged for the offence under

Section Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS

Act and he has prayed the Court that the trial has to be conducted

for the offence punishable under NDPS Act.

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RELEVANT PROVISIONS UNDER IPC:

"188. Disobedience to order duly promulgated by public servant. - whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Explanation: It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration: An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."

"269. Negligent act likely to spread infection of disease dangerous to life. - Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

270. Malignant act likely to spread infection of disease dangerous to life. - Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

272. Adulteration of food or drink intended for sale.-Whoever adulterates any article of food or drink, so as to make such article noxious as food or drink, intending to sell such article as food or drink, or

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knowing it to be likely that the same will be sold as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

"273. Sale of noxious food or drink.- Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is nonxious as food or drink, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

RELEVANT PROVISIONS UNDER COTP ACT:

20. Punishment for failure to give specified warning and nicotine and tar contents.-

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain wither on the package or on their label, the specified warning and the nicotine and tar contents shall in 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. The lis involved in the present petition is no more res integra.

A learned Single Judge of the High Court of Judicature at

Hyderabad for the State of Telangana and the State of Andhra

Pradesh in Chidurala Shyamsubder vs. State of Telangana 1

had an occasion to deal with the issues involved in the present

criminal petition. After referring to various provisions of IPC, COTP

Act and also the principle laid down by the Apex Court and other

High Courts in several judgments, the learned Single Judge had

framed the issues, which are as under:

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

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"1) Whether the respondent/ Sub-Inspector of Police, is competent to investigate into the offence punishable under Sections 54 and 59(1) of FSS Act?

2) Whether the petitioners in all the petitions are found committing any act with malicious intention, with knowledge and reason to believe that such act likely to spread the infection of any disease dangerous to life? And whether the petitioners selling or offering or exposing for sale as food or drink, any article which has been rendered or has become noxious or is in a state unfit for food or drink or reason to believe that the same is noxious as food or drink? If so, are they liable to be proceeded for the offence punishable under Sections 270 and 273 IPC.?"

7. In the very same judgment, the learned Single Judge further

held that chewing tobacco and khaini are not the 'food' within the

definition of Section 3 (j) of the FSS Act and the manufacture, sale

or exposing for sale of tobacco etc., is governed by the provisions of

COTP Act, but not by FSS Act and so also the provisions of IPC.

The respondents-Police are incompetent to investigate the offence

punishable under Sections - 54 and 59 (1) of the FSS Act and

allegations in the charge sheet coupled with the statements do not

disclose the commission of the offence punishable under Section -

273 of IPC since transportation of noxious food is not included

under Section 273 of IPC. The act done by the accused therein i.e.,

transportation of khaini and chewing tobacco though dangerous to

human life, it would not spread or infect or cause any disease on

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account of transportation and if those products are consumed by

human being, it would certainly cause damage to the health.

Therefore, transportation of khaini or chewing tobacco by itself is

not an offence under Section - 270 of IPC. Pan Masala is not a

tobacco product to fall within the purview of COTP Act. Therefore,

the provisions of the COTP Act have no application, thereby

registration of crime on the ground of violation of Sections - 7 (1)

(2) (3) (5) and Section 26 of COTP Act is an illegality. The learned

Single Judge further held that registration of cases for the offence

under Section - 20 (2) read with 7 (2) of COTP Act is illegal. With

the said findings, the learned Single Judge has quashed the crimes

and calendar cases in the said judgment.

8. In Sri Jaganath Enterprises Eluru Vasandhi Tripati Rao

vs. The State of Andhra Pradesh 2, a learned Single Judge of the

High Court of Andhra Pradesh at Amaravati had also an occasion

to deal with the said issue. After referring to the contention of the

respective parties therein, various provisions of IPC, FSS Act, COTP

Act and relying on the principle laid down in Anand Ramdhani

Chaurasia 3, Joseph Kurian vs. State of Kerala 4, Sayyed

Hassan Sayyed Subhan 5, M/s. Pepsico India Holdings (Pvt)

2020 (1) ALT (Crl.) 215 (APHC)

2019 SCC OnLine Bom 1857

1995 (1) SCJ 277

2018 AIR (SC) 5348

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Ltd., vs. State of U.P. 6, Sanjay Anjay Stores vs. Union of

India 7, Boop Singh Tyagi vs. State 8, State of Haryana vs.

Bhajan Lal 9 and Chidurala Shyamsubder (Supra 1), the learned

Single Judge has quashed the FIRs/Calendar Cases. The learned

Single Judge referring to the law laid down in Chidurala

Shyamsubder (Supra 1) held that despite the said authoritative

pronouncement of law, status quo continues. The said judgment

attained finality. Even then, the police are registering cases

against accused on the very same allegations for the very same

offences.

9. Referring to the provisions of Sections - 188, 269, 270, 272

and 273 of IPC, the learned Judge in Sri Jaganath Enterprises held

that the offences registered under the said Sections are not

maintainable. It further held that the provisions of the COTP Act

can only be pressed into service in the limited circumstances only

where there is violation of Sections - 4, 5, 6, 7 and 10 of the COTP

Act. By referring to the principle laid down by the Apex Court in

Bhajan Lal and M/s. Pepsico India Holdings (Pvt) Ltd., the learned

Single Judge has quashed the proceedings in various

crimes/calendar cases.

2011 (2) Crimes 250

2017 SCC OnLine Cal 16323

2002 Crl.L.J. 2872

1992 Supp (1) SCC 335

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10. Another learned Single Judge of the High Court of Andhra

Pradesh at Amaravati in V.Nageswara Rao vs. State of Andhra

Pradesh 10 had also an occasion to deal with the said issue and

agreed with the principle laid down in Chidurala Shyamsubder

(Supra 1).

11. In Sayyed Hassan Sayyed Subhan (Supra 5), the Apex

Court while dealing with legality of the order passed by the

Bombay High Court in a batch of criminal writ petitions and

criminal applications, which were filed challenging the registration

of FIRs for the offences under Sections - 188, 272, 273 and 328 of

IPC and Sections - 26 and 30 of FSS Act where there is an

allegation of transportation and sale of Gutka/Pan Masala etc.,

held that the judgment of Bombay High Court is contrary to the

provisions of the Act and law laid down by it. With the said

finding, the Apex Court remitted the matter to the Bombay High

Court for fresh consideration on the issue that whether the

aforesaid offences are made out in the FIRs, which are subject

matter of the cases pending before the Bombay High Court.

12. In view of the authoritative pronouncement of law in the

aforesaid judgments, as discussed above, coming to the facts of the

cases on hand, the allegations against the accused in respective

2020 Supreme (AP) 348

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cases are transportation, possession, storage, sale and purchase of

banned products viz., respectively. In Chidurala Shyamsubder

(Supra 1), the learned Single Judge observed that transportation of

chewing tobacco or khaini or pan masala do not constitute an

offence punishable under Section - 270 of IPC and that

manufacturing of pan masala is not included in Section 273 of IPC

and, therefore, the same is not an offence since it is not a noxious

food. The learned Single Judge has further observed in the said

judgment which is as under:

"... The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous of human life, it would not spread or infect or casue any disease on account of transportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section - 270 of IPC and it would fall within Section 270 of IPC."

13. Section - 272 of IPC makes punishable an offence by a

person, who adulterates any article of food or drink. Therefore, the

said section would only come into play or drink is adulterated.

There is no definition of 'adulteration' in IPC. The definition

'adulterant' is found in the provisions of the FSS Act. Section - 3

(1) (a) of the FSS Act deals with 'adulterant' which means a

material which could make the 'food' unsafe or sub-standard or

mis-branded. According to Section - 272 of IPC, if a material is

used to make the food unsafe/sub-standard or mis-branded, then

SKS,J Crl.P.No.2309 OF 2024

only the offence would be attracted. Whereas, as discussed supra,

the allegation in the present batch of cases is with regard to

transportation, possession, storage, sale and purchase of banned

products viz., tobacco/tambaku/gutka/ khaini/zarda/pan masala

etc., respectively. Therefore, according to this Court, the said

allegation does not fall within the ambit of Section - 272 of IPC.

Therefore, I agree with the principle laid down by the learned

Single Judges of the High Court of Andhra Pradesh in Chidurala

Shyamsubder (Supra 1), Sri Jaganath Enterprises (Supra 2)

and V.Nageswara Rao (Supra 10).

14. In Joseph Kurian (Supra 4), the Hon'ble Supreme Court

held that for Section 272 - IPC to be attracted, the following should

be present. (1) That the article involved was food and drink meant

to be consumed by live persons; (2) that the accused adulterated it

and the adulteration rendered it noxious as a 'food or drink'; (3)

that the accused knew at the time of adulteration that he would

sell the article as food or drink and knew that such article cannot

be sold as food or drink. The Hon'ble Supreme Court clearly held

that the offence is completed on the introduction of the adulterant.

'Adulterant' would mean that a material which is mixed to make

the 'food' unsafe or drink unsafe. In the present case on hand,

tobacco is not a food or drink and what is stated to be mixed in it

is not clearly established by any cogent material as an 'adulterant'

SKS,J Crl.P.No.2309 OF 2024

for the offence under Section - 272 of IPC to be pressed into

service.

15. Section - 273 of IPC deals with sale of a noxious food or

drink, and as per which, whoever sells, or offers or exposes for

sale, as food or drink, any article which has been rendered or has

become noxious, or is in a state unfit for drink, knowing or having

reason to believe that the same is noxious as food or drink, shall

be punished with imprisonment specified therein. Therefore, if a

person offers for sale a "food or drink" any article which has

become noxious or is in a state of unfit for "food or drink". Thus,

the said section would apply, when an article which has become

noxious or which has been rendered noxious. It also applies to

food or drink only. As held in Sri jaganath Enterprises, the word

'noxious' is not defined in IPC or in FSS Act. As per the dictionary

meaning, the word 'noxious' is harmful, deleterious, injurious,

poisonous etc. As stated above, the allegation in the criminal

petition is with regard to transportation, possession, storage, sale

and purchase of banned products viz.,

tobacco/tambaku/gutka/khaini/zarda/pan masala etc.,

respectively. Therefore, according to this Court, the contents of the

complaint/charge sheet lacks the ingredients of Section - 273 of

IPC.

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16. As far as Section - 188 of IPC is concerned, as per the settled

law on the subject, before an accused is charged, there must be;

an order duly promulgated by the public servant; the public

servant must have the lawful authority to promulgate the order;

the person flouting the same should have knowledge about the

order directing him to abstain from the act; he must disobey the

said order with the knowledge; and such disobedience of the duly

promulgated order should cause a danger to the human life etc. In

Boop Singh Tyagi a Division bench of Allahabad High Court held

that right to promulgate the ordinance/order is also an issue

which is being raised, because under the FSS Act, the

Commissioner of Food Safety alone has the authority to pass the

orders only if the article of 'food' can causes danger or is injurious

to health.

17. In N.T. Rama Rao vs. The State of A.P., rep by Public

Prosecutor 11 while dealing with the offences under Sections - 188

and 283 of IPC, the learned Single Judge of the combined High

Court of Andhra Pradesh held as under:

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of

Criminal Petition No.5323 of 2009, decided on 17.09.2009

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Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure. In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195 (1) 9a) of Code of Criminal Procedure.

6. That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Even otherwise, the conduce of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal procedure, has to fail.

7. As the complaint has failed due to its unsustainability, the proceedings in their entirely have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

18. In Thota Chandra Sekhar vs. The state of Andhra

Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari

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District 12, wherein by relying on various judgment including N.T.

Rama Rao (Supra 11) and also the guidelines laid down by the

Apex Court in Bhajan Lal (Supra 9) more particularly, guideline

No.6, which says that where there is an express legal bar engrafted

in any of the provisions of the Code or the concerned Act (under

which a criminal proceedings is instituted) to the institution and

continuance of the proceedings and/or where there is a specific

provision in the Code or the concerned Act, providing efficacious

remedy to redress the grievance of the party, it was held that the

proceedings in the said C.C were quashed by exercising power

under Section - 482 of Cr.P.C. It was also further held that the

proceedings shall not be continued due to technical defect of

obtaining prior permission under Section - 155 (2) of Cr.P.C. and

taking cognizance on the complaint filed by V.R.O and it is against

the purport of Section - 195 (1) (a) of Cr.P.C.

19. With regard to the offences under COTP Act, it is relevant to

mention the objects and the reasons of the said Act itself clearly

state that the act is meant to prohibit the advertisement of, and to

provide for the regulation of trade and commerce in, and

production, supply and distribution of, cigarettes and other

tobacco products and for matters connected therewith or incidental

thereto. A reading of the said objects of the said Act would reveal

Criminal Petition No.15248 of 2016, decided on 26.10.2016

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that a total ban of tobacco products was not envisaged by the said

Act. The Parliament merely felt it expedient to control the

advertisement and sale of tobacco products. As noted earlier in the

order, Section - 3 (p) of the COTP Act and the schedule therein

define tobacco products. Pan Masala, gutkha and chewing tobacco

are included in the definition of tobacco products. Section - 5 of

the COTP Act deals with prohibition of advertisement of cigarette

and other tobacco products only. No person, who is engaged in the

production, supply or distribution of cigarettes or other products

shall advertise the same. Similarly, no person having the control

over a medium can advertise cigarettes or tobacco products, and

no person shall be part of any advertisement.

20. Section - 20 of COTP Act deals with punishment for failure

to give specified warning and nicotine and tar contents. But, in the

complaints/charge sheets, there is no allegation against the

petitioners that they were carrying on 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 complaints/charge sheets lack the ingredients of

Section 20 (2) of the COTP Act. Even there is no allegation that the

seized products do not contain labels with statutory warning.

Thus, registering the crimes for the said offence against the

petitioners is not only contrary to Section - 20 (2) of COTP Act, but

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also contrary to the principle laid down in Chidurala

Shyamsubder. In view of the same, the offence under Section 20

(2) of COTP Act is also liable to be quashed against the petitioners.

I once again reiterate that I agree with the principle laid down by

the learned Single Judges of the High Court of Andhra Pradesh in

Chidurala Shyamsubder, Sri Jaganath Enterprises and V.

Nageswara Rao.

21. In view of the above said discussion, according to this Court,

transportation, possession, storage, sale and purchase of tobacco

products are not totally banned in the State of Telangana and also

in the Country. Therefore, it cannot be said that Sections - 188,

269, 270, 272 and 273 of the IPC and Section 20 (2) of COTP Act

are attracted to the present case. Insofar as the offence under

Section 8 (c) read with Section 20 (b) (ii) (B) of the NDPS Act, the

petitioner is liable to be prosecuted.

22. In the result, the Criminal Petition is allowed in Part and the

proceedings against the petitioners/accused Nos.1 and 2 in

S.C.No.24 of 2021, on the file of the learned

VIII Additional Chief Metropolitan Magistrate, Hyderabad,

registered for the offences punishable under Sections 188, 269,

270, 272 and 273 of the IPC and Section 20 (2) of the COTP Act

only are hereby quashed while permitting the prosecution to

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proceed further against the petitioners/ accused Nos.1 and 2 for

the offence punishable under Section 8 (c) read with Section 20 (b)

(ii) (B) of the NDPS Act.

Miscellaneous applications, if any pending, shall also

stand closed.

_____________ K. SUJANA, J Date:15.04.2024 SAI