Telangana High Court

Shashaik Sahiq vs The State Of Telangana on 4 February, 2025

Author: Juvvadi Sridevi

Bench: Juvvadi Sridevi

    THE HONOURABLE SMT. JUSTICE JUVVADI SRIDEVI

             CRIMINAL PETITION Nos.41 & 54 of 2025

COMMON ORDER:

As these Criminal Petitions are arising out of same crime,

they are being disposed of by way of this Common Order.

02. These Criminal Petitions are filed by the petitioners-

accused Nos.1 and 2 to quash the proceedings against them in

Crime No.1647 of 2024 of the Station House Officer, Miyapur

Police Station, Cyberabad, registered for the offences under

Sections 223 of BNS (Section 188 of IPC) and 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

'COTPA').

03. Heard Sri Syed Ahmed, learned counsel for the

petitioners-accused Nos.1 and 2 and Sri Jithender Rao

Veeramalla, learned Additional Public Prosecutor for the State.

04. Learned counsel appearing for petitioners submits

that the petitioners are innocent and have been falsely implicated

in the case. Section 195(1)(a) of Cr.P.C. bars taking cognizance

of the offence under Section 223 of BNS, except on the complaint

in writing of the public servant concerned or of some other public

servant to whom he is administratively subordinate. In the

present case, the complaint was lodged by the de facto

complainant, who is not a competent person, the present FIR is

not maintainable and the same is liable to be quashed. He further

submits that the offence under Section 20(2) of the COTPA, shall

be deemed to have been committed under Section 223 of BNS.

When Section 223 of BNS warrants filing of a private complaint,

the same restriction applies to Section 20(2) of the COTPA also.

Since the prime offence under Section 223 of BNS is barred by

Section 195(1)(a) of Cr.P.C., the whole proceedings are without

jurisdiction. Hence, he prayed to quash the criminal proceedings

against the petitioners-accused Nos.1 and 2.

05. On the other hand, learned Additional Public

Prosecutor for the State submitted that the petitioners have also

been charged with the offence other than 223 of BNS and the

truth or otherwise of the allegations levelled against the

petitioners can only be known after conducting full-fledged trial,

and hence, he prayed to dismiss these petitions.

06. In view of the facts and circumstances of the case, it

is relevant to note that the Honourable Supreme Court of India in

State of Karnataka v. Hemareddy 1, at Paragraph No.8, it is held

as follows:

"We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1) (b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld".

07. For the sake of convenience, Section 223 of BNS

and Section 195 of Cr.P.C. are extracted hereunder:-

Section 223 of BNS: 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 order with certain property in his possession or under his management, disobeys such direction,--

(a) shall, if such disobedience causes or tends to cause obstruction, annoyance

AIR 1981 SC 1417

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 six months, or with fine which may extend to two thousand and five hundred rupees, or with both;

(b) and where such disobedience causes or tends 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 one year, or with fine which may extend to five 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.

Section 195 of Cr.P.C: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1)No Court shall take cognizance-

(a)(i)of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii)of any abetment of, or attempt to commit, such offence, or

(iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;

(b)(i)of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause

(ii),[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] [Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing

of that Court, of of some other Court to which that Court is subordinate" (w.e.f. 16-4-2006).]

08. Having heard both sides and perused the material on

record, it is evident that the proceedings against the petitioners

for the offence under Section 223 of BNS have been initiated,

basing on the complaint made by the de-facto complainant, who

is a Police Officer, but not on the basis of complaint in writing of

the public servant concerned, as is required under Section

195(1)(a) of Cr.P.C. Therefore, the proceedings against the

petitioners for the offence under Section 223 of BNS are liable to

be quashed.

09. Insofar as other offences i.e., Section 20(2) of

COTPA, the allegations against the petitioners 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(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."

10. Thus, the 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 is that they purchase the tobacco products and sell

them to customers to gain wrongful profits. The petitioners are

neither trader, nor supplier/distributor of cigarettes or any other

tobacco products. There is no allegation in the complaint against

the petitioners that they are carrying on the trade or commence 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 complaint lacks the ingredients of Section 20(2) of

the COTP Act. In the entire complaint, there is no allegation that