Vipul Ranka Vipul Raanaka vs The State Of Telangana,
2024 Latest Caselaw 3142 Tel

Telangana High Court

Vipul Ranka Vipul Raanaka vs The State Of Telangana, on 8 August, 2024

     THE HONOURABLE SMT. JUSTICE K. SUJANA

           CRIMINAL PETITION No.5577 of 2023


ORDER:

This Criminal Petition is filed under Section 482 of

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

by the petitioner/accused No.11, seeking to quash the

proceedings against him in C.C. No.670 of 2018 on the file

of the Chief Metropolitan Magistrate at Nampally,

Hyderabad, for the offences punishable under Section 420

of the Indian Penal Code, 1860 (for short 'IPC') and

Sections 5, 6(A), 7 read with 20(2), 22, 24(1) of Cigarette

and Other Tobacco Product Act, 2003 (for short 'COTPA').

2. Brief facts of the case are that on 31.03.2017,

Chandrayanagutta, P.S., conducted a search on a number

of pan shops and found that the pan shop owners are

selling cigarettes which are prohibited under COTPA.

Therefore, a case was registered against eleven (11) persons

in Crime No.77 of 2017 before the Chandrayangutta Police.

In the said charge sheet, it was alleged that accused Nos.1

to 7 used to purchase cigarettes etc., from accused Nos.8

to 11 and after completion of investigation, a charge sheet

was filed vide C.C.No.670 of 2018 on the file of Chief

Metropolitan Magistrate at Nampally, Hyderabad.

3. Heard Sri S.Chandrasekhar, learned counsel for the

petitioner and Sri S.Ganesh, learned Assistant Public

Prosecutor for respondent No.1 - State.

4. Learned counsel for the petitioner would submit that

this petitioner is innocent and he never sold anything to

accused Nos.1 to 7 and he is not selling any prohibited

products and the said seized products are not prohibited

products. He further submitted that said permissible

tobacco items are not harmful to the health of general

public and the said crime does not comes under the

purview of offences alleged. In this regard, he placed

reliance on the judgment of this Court in Criminal Petition

No.5619 of 2020 and batch dated 10.06.2022, Criminal

Petition No.10073 of 2022 dated 19.12.2022 and prayed

the Court to allow the Criminal Petition by quashing the

proceedings against the petitioner.

5. On the other hand, learned Assistant Public

Prosecutor opposed the submissions of learned counsel for

the petitioner stating that the allegations against this

petitioners are severe in nature and the products sold by

the petitioner are in low quality and the petitioner selling

the products without statutory warning marked on it.

Hence, he prayed the Court to dismiss the Criminal

Petition.

6. In view of the rival submissions made by both the

parties, this Court has perused the record and found that

as per the prosecution, the cigarette products are low

quality. It is stated that petitioner/accused No.11 is no way

concerned with the offences alleged as accused Nos.1 to 7

illegally kept the Hokka Pots, electric cigarettes in flavored

powders for selling them at high rates through accused

Nos. 8 to 11. Accused Nos. 8 to 11 are the main kingpins to

circulate the low quality prohibited products to the accused

persons.

7. In Criminal Petition No.5619 of 2020 and batch dated

10.06.2022, at paragraph Nos.7 to 11 held as under:-

7. In relation to offences under Sections - 20 (2), 7 (3) and 7(5) this court in Mohd. Jameel Ahmed (Supra) had held as follows:

29. 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 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 a part of any advertisement.

30. Section-7 of the COTP Act deals with the imposition of restriction on the sale, trade, commerce of tobacco products unless every package of cigarette or tobacco product contains a specified warning (pictorial or otherwise). Section-4 of the COTP Act, bans smoking in public places. In addition, Section-6 of the COTP Act, prohibits the sale of cigarettes or other tobacco products to a person who is under the age of 18 years are in an area within 100 yards of any educational institution.

31. A reading of this Act, particularly Sections-4, 5, 6 and 7 clearly shows that there is no general ban or general prohibition on the manufacture/sale of tobacco

products. What is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections-5 and 7 of the COTP Act, deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, according to this Court, the above said allegations of transportation, possession, storage, sale and purchase of banned tobacco products will not attract the offence under Section-7 of the COTP Act.

32. As far as Section-20 of the COTP Act is concerned, as stated above, the allegations against the petitioner in respective complaints/charge sheets are that they were transporting, possessing, storing, selling and purchasing the banned 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."

33. Thus, 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 also contrary to the principle laid down in Chidurala Shyamsubder1. 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 Shyamsubder1, Sri. Jaganath Enterprises 2020 (1) ALT (Crl.) 215 (APHC) and V. Nageswara Rao 2020 Supreme (AP) 348.

Therefore, in the present batch of the Petitions, there are no allegations which support the ingredients of Section 7 and 20 of the COTP Act, 2003.

8. It is relevant to note that in some of the cases, the Petitioners were charged under Sections 21 and 22 of the COTP Act, 2003, and the said provisions are extracted below.

"21. Punishment for smoking in certain places.-(1) Whoever contravenes the provisions of section 4 shall be punishable with fine which may extend to two hundred rupees. (2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974)."

"22. Punishment for advertisement of cigarettes and tobacco products.-Whoever contravenes the provision of section 5 shall, on conviction, be punishable- (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees."

9. According to this Court, the ingredients of Section 21 of COTP Act, 2003 are not satisfied. There is no allegation against the Petitioners herein that they were

smoking in a public place. Therefore, the Petitioners cannot be charged with Section 21 of COTP Act, 2003.

10. Further, the ingredients of Section 22 of the COTP Act, 2003 are also not attracted. There is nothing to suggest that the Petitioners in anyway advertised cigarettes and other tobacco products which is prohibited under Section 5 of the COTP Act, 2003. The allegations only pertain to transportation, sale, possession, manufacture, storage and do not include advertisement of such products. Therefore, the Petitioners cannot be charged with Section 22 of COTP Act, 2003.

11. In view of the above said discussion, all these Criminal Petitions except Crl.P. No.7455 of 2021 are allowed quashing the proceedings in the respective Crimes/Calendar Cases/Sessions Cases in terms of the common order, dated 05.07.2021 passed by this Court in Mohd. Jameel Ahmed (Supra)."

8. In view of the above, the COTPA is meant to prohibiting

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

there is no total ban of tobacco products envisaged and

Sections 4, 5, 6 and 7 clearly shows that there is no

general ban or general prohibition on the manufacture or

sale of tobacco products. Selling of these products to a

person, who is below the age of 18 years and in an area

within 100 yards of an educational institution is barred. In

the present case, there is no allegations in the

investigation report that accused Nos.1 to 7 are below the

age of 18 years and these petitioners are selling the

cigarettes within 100 yards of an educational institution.

Section 20 (2) of COTPA says that 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. The said section deals with punishment for

failure to give specified warning and nicotine and tar

contents. But, charge sheet averments shows that no such

allegations against the petitioner that he was carrying on

trade or commerce in contraband or any other tobacco

products without label and specified warning on the said

products. Even, there is no allegation that the seized

products do not contain labels with statutory warning.

Further, the petitioner was also charged under Sections 21

and 22 of the COTPA, wherein, Section 21 deals with

punishment for smoking in certain places and prohibits

smoking in public places and Section 22 deals with

punishable for advertisement of cigarette and tobacco

products. In the present case, there is no such allegation

that the petitioner is smoking cigarette in public places and

advertising about cigarette and tobacco products. In view of

the above none of the allegations in the averments of the

charge sheet constitute the offences alleges against the

petitioner. Therefore, proceedings against the petitioner are

liable to be quashed.

9. Accordingly, the Criminal Petition is allowed and the

proceedings against the petitioner/accused No.11 in

C.C.No.670 of 2018 on the file of the Chief Metropolitan

Magistrate at Nampally, Hyderabad are hereby quashed.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, in this

Criminal Petition shall also stand closed.

                                       _____________________
                                       JUSTICE K. SUJANA
Date:     .08.2024
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