Telangana High CourtRayala Praveen vs The State Of Telangana on 10 June, 2022Author:K. LakshmanBench:K. LakshmanHON'BLE SRI JUSTICE K. LAKSHMAN\n\nCRIMINAL PETITION Nos.5619, 5638, 6421 OF 2020;\n3314, 6926, 7361, 7391, 7455, 7543, 7873, 7885, 8116,\n8461, 8716, 8998, 9020, 9044, 9053, 9065, 9068, 9071,\n9072, 9073, 9077, 9079, 9095, 9098, 9099, 9101, 9105,\n9107, 9112, 9116, 9121, 9124, 9143, 9153, 9168, 9205,\n9226, 9252, 9256, 9264, 9266, 9294, 9298, 9339, 9341,\n9343, 9368, 9461, 9469, 9489, 9518, 9534, 9569, 9583,\n9587, 9599, 9629, 9651, 9655, 9753, 9759, 9764, 9788,\n9793, 9864, 10195, 10311 & 10314 OF 2021 AND 308,\n469, 471, 537, 559, 574, 598, 606, 615, 627, 759, 776,\n777, 783, 788, 947, 1131, 1141, 1192, 1205, 1206, 1369,\n1472, 1606, 1751, 1756, 1772, 1853, 1854, 1863, 1934,\n1944, 2004, 2042, 2047, 2050, 2154, 2376, 2432, 2433,\n2459, 2635, 2640, 2733, 2768, 2822, 2823, 2981, 3040,\n3093, 3094, 3110, 3233, 3290, 3297, 3362, 3373, 3378,\n3386, 3543, 3673, 3758, 3769, 3824, 4055, 4087, 4103,\n4104, 4154, 4159, 4209, 4307, 4322, 4323 & 4586 OF\n2022.\n\nCOMMON ORDER:All these Criminal Petitions are filed by the respective\n\n  petitioners under Section - 482 of theCode of the Criminal\n\n  Procedure, 1973, to quash the proceedings in the respective\n                                                                       KL,J\n                                            Crl.P. No.5619 of 2020 & batch2Crimes/Calendar Cases/Sessions Cases registered for the offences\n\nunder Sections - 188, 269, 270, 272, 273, 328, 336 & 420 read with\n\n34, 149, 511 ofIPC; Sections - 3 (m), 20 (2), 21 (1), 21 (2), 22, 7\n\n(3) and 7 (5) of theCigarettes and Other Tobacco Products\n\n(Prohibition of Advertisement and Regulation of Trade and\n\nCommerce, Production, Supply and Distribution) Act, 2003(for\n\nshort 'COTP Act') and Sections - 58 and 59 (i) of theFood Safety\n\nand Standards Act, 2006(for short 'FSS Act').2. The nature of allegations in all these offences relate to\n\ntransportation, sale, possession, manufacture, storage, etc. of\n\ntobacco products including khaini, zarda, pan masala and other\n\nsuch allegedly harmful and banned products.3.   Heard learned counsel for the respective parties and\n\nlearned Public Prosecutor appearing on behalf of the respondents -\n\nState, and perused the record.4. Perusal of the record would reveal that the lis involved in\n\nthis batch of cases had already dealt with by this Court extensively\n\nvide common order dated 05.07.2021 in Crl.P. No.152 of 2020 and\n\nbatch which was reported as Mohd. Jameel Ahmed v. State of\n                                                                           KL,J\n                                                Crl.P. No.5619 of 2020 & batch3Telangana1. This Court in the said case by relying on various\n\ndecisions of the Supreme Court explained and interpreted the\n\nrelevant provisions with which the Petitioners herein are charged.5. With regard to offences under Sections - 58 and 59 (i) of\n\ntheFSS Act, 2006it was held by this Court that police cannot\n\ninitiate prosecution and investigate the offences under theFSS Act,\n\n2006. The power to initiate prosecution is conferred only on the\n\nFood Safety Officers appointed under theFSS Act, 2006. Further,\n\nthis Court held that 'tobacco' does not fall within the definition of\n\n'food' under theFSS Act, 2006. Therefore, the Petitioners herein\n\ncannot be charged for offences under Sections - 58 and 59 (i) of theFSS Act, 2006.6. Further, in relation to the offences under Sections - 188,\n\n269, 270, 272, 273, 328, 336 & 420 read with 34, 149, 511 of theIPC, this Court gave detailed findings as to how the said provisions\n\ndo not attract merely because tobacco products were being sold,\n\ntransported, possessed, etc. This Court relying on the decisions of\n\nthe Apex Court held that only theCOTP Act, 2003will apply in\n\nrelation to offences relating to sale, manufacture and distribution of12022 CriLJ 642.KL,J\n                                             Crl.P. No.5619 of 2020 & batch4tobacco products. Therefore, in light of this Court's decision in\n\nMohd. Jameel Ahmed (Supra), the offences alleged under theIPCare not made out against the Petitioners herein.7. In relation to offences under Sections - 20 (2), 7 (3) and 7\n\n(5) this court in Mohd. Jameel Ahmed (Supra) had held as\n\nfollows:29. With regard to the offences underCOTP Act, it is\n    relevant to mention the objects and the reasons of the\n    said Act itself clearly state that the act is meant to\n    prohibit the advertisement of, and to provide for the\n    regulation of trade and commerce in, and production,\n    supply and distribution of, cigarettes and other tobacco\n    products and for matters connected therewith or\n    incidental thereto. A reading of the said objects of the\n    said Act would reveal that a total ban of tobacco\n    products was not envisaged by the said Act. The\n    Parliament merely felt it expedient to control the\n    advertisement and sale of tobacco products. As noted\n    earlier in the order,Section-3 (p)of the COTP Act and\n    the schedule therein define tobacco products. Pan\n    masala, gutkha and chewing tobacco are included in the\n    definition of tobacco products.Section-5of the COTP\n    Act deals with prohibition of advertisement of cigarette\n    and other tobacco products only. No person, who is\n    engaged in the production, supply or distribution of\n    cigarettes or other products shall advertise the same.Similarly, no person having the control over a medium\n    can advertise cigarettes or tobacco products, and no\n    person shall be a part of any advertisement.KL,J\n                                          Crl.P. No.5619 of 2020 & batch530.Section-7of the COTP Act deals with the\nimposition of restriction on the sale, trade, commerce of\ntobacco products unless every package of cigarette or\ntobacco product contains a specified warning (pictorial\nor otherwise).Section-4of the COTP Act, bans\nsmoking in public places. In addition,Section-6of the\nCOTP Act, prohibits the sale of cigarettes or other\ntobacco products to a person who is under the age of 18\nyears are in an area within 100 yards of any educational\ninstitution.31. A reading of this Act, particularly Sections-4, 5,\n6 and 7 clearly shows that there is no general ban or\ngeneral prohibition on the manufacture/sale of\ntobacco products. 22 What is barred is merely the\nsale of these products to a person, who is below the\nage of 18 years and in an area within 100 yards of an\neducational institution. The other aspects covered by\nSections-5 and 7 of theCOTP Act, deal with the\nadvertisement and the warning, which is to be\ncontained on a package, in which the tobacco\nproduct is packed. This is a regulatory mechanism\nonly. Therefore, according to this Court, the above\nsaid allegations of transportation, possession,\nstorage, sale and purchase of banned tobacco\nproducts will not attract the offence underSection-7of the COTP Act.32. As far asSection-20of the COTP Act is concerned,\nas stated above, the allegations against the petitioner in\nrespective complaints/charge sheets are that they were\ntransporting, possessing, storing, selling and purchasing\nthe banned tobacco products to the customers illegally\nin order to gain wrongful profits. In view of the said\nallegation, it is apt to refer toSection-20 (2)of the\n                                                                   KL,J\n                                        Crl.P. No.5619 of 2020 & batch6COTP Actfor better appreciation of the case and to\ndecide the issue in question, and the same is as under:"20. Punishment for failure to give specified warning\nand nicotine and tar contents.-(1) ...(2) Any person who sells or distributes cigarettes or\ntobacco products which do not contain either on the\npackage or on their label, the specified warning and the\nnicotine and tar contents shall in the case of first\nconviction be punishable with imprisonment for a term,\nwhich may extend to one year, or with fine which may\nextend to one thousand rupees, or with both, and, for\nthe second or subsequent conviction, with\nimprisonment for a term which may extend to two years\nand with fine which may extend to three thousand\nrupees."33. Thus, Section-20 of COTP Act deals with\npunishment for failure to give specified warning and\nnicotine and tar contents. But, in the\ncomplaints/charge sheets, there is no allegation\nagainst the petitioners that they were carrying on\ntrade or commerce in contraband or any other\ntobacco products without label and specified\nwarning on the said products. In view of the same,\nthe contents of the complaints/charge sheets lack the\ningredients ofSection-20 (2)of the COTP Act. Even,\nthere is no allegation that the seized products do not\ncontain labels with statutory warning. Thus,\nregistering the crimes for the said offence against\nthe petitioners is not only contrary toSection-20 (2)KL,J\n                                                Crl.P. No.5619 of 2020 & batch7ofCOTP Act, but also contrary to the principle laid\n    down in Chidurala Shyamsubder1. In view of the\n    same, the offence underSection-20 (2)of COTP Act\n    is also liable to be quashed against the petitioners. I\n    once again reiterate that I agree with the principle\n    laid down by the learned Single Judges of the High\n    Court of Andhra Pradesh in Chidurala\n    Shyamsubder1, Sri. Jaganath Enterprises 2020 (1)\n    ALT (Crl.) 215 (APHC) and V. Nageswara Rao 2020\n    Supreme (AP) 348.Therefore, in the present batch of the Petitions, there are no\n\nallegations which support the ingredients ofSection 7and20of the\n\nCOTP Act, 2003.8. It is relevant to note that in some of the cases, the\n\nPetitioners were charged underSections 21and22of the COTP\n\nAct, 2003, and the said provisions are extracted below."21. Punishment for smoking in certain places.-(1) Whoever\n\n    contravenes the provisions ofsection 4shall be punishable\n\n    with fine which may extend to two hundred rupees. (2) An\n\n    offence under this section shall be compoundable and shall be\n\n    tried summarily in accordance with the procedure provided for\n\n    summary trials in theCode of Criminal Procedure, 1973 (2 of\n\n    1974)."KL,J\n                                                  Crl.P. No.5619 of 2020 & batch8"22. Punishment for advertisement of cigarettes and tobacco\n\n    products.-Whoever contravenes the provision ofsection 5shall, on conviction, be punishable- (a) in the case of first\n\n    conviction, with imprisonment for a term which may extend to\n\n    two years or with fine which may extend to one thousand\n\n    rupees or with both, and (b) in the case of second or subsequent\n\n    conviction with imprisonment for a term which may extend to\n\n    five years and with fine which may extend to five thousand\n\n    rupees."9. According to this Court, the ingredients ofSection 21of\n\nCOTP Act, 2003 are not satisfied. There is no allegation against the\n\nPetitioners herein that they were smoking in a public place.\n\nTherefore, the Petitioners cannot be charged withSection 21of\n\nCOTP Act, 2003.10. Further, the ingredients ofSection 22of the COTP Act,\n\n2003 are also not attracted. There is nothing to suggest that the\n\nPetitioners in anyway advertised cigarettes and other tobacco\n\nproducts which is prohibited underSection 5of the COTP Act,\n\n2003. The allegations only pertain to transportation, sale,\n\npossession, manufacture, storage and do not include advertisement\n                                                                       KL,J\n                                            Crl.P. No.5619 of 2020 & batch9of such products. Therefore, the Petitioners cannot be charged withSection 22of COTP Act, 2003.11. In view of the abovesaid discussion, all these Criminal\n\nPetitions except Crl.P. No.7455 of 2021 are allowed quashing the\n\nproceedings in the respective Crimes/Calendar Cases/Sessions\n\nCases in terms of the common order, dated 05.07.2021 passed by\n\nthis Court in Mohd. Jameel Ahmed (Supra).12. However, it is relevant to note that in Crl. P. No.7455 of\n\n2021, the petitioner - accused was charged with Sections - 270 and\n\n273 of theIPCand Section - 8 (c) read with Section - 20 (b) of theNDPS Act. The allegation against the petitioner in the said case is\n\nthat he was found in possession of tobacco products and ganja.\n\nTherefore, the said Crl.P. No.7455 of 2021 is partly allowed and\n\nCrime No.148 of 2021 is quashed as far as the offences under\n\nSections - 270 and 273 of theIPCare concerned. The Investigating\n\nOfficer shall proceed with the investigation in relation to the\n\nallegations and offence under Section - 8 (c) read with Section - 20(b) of theNDPS Act.KL,J\n                                             Crl.P. No.5619 of 2020 & batch1013. As the proceedings in the aforesaid Criminal Petitions\n\nare quashed against the respective petitioners, the respective\n\nStation House Officers/Investigating Officers are hereby directed to\n\nreturn the seized property/vehicles on proper identification and\n\nverification of ownership under due acknowledgment. In cases\n\nwhere charge sheets are already filed the respective petitioners are\n\nat liberty to file appropriate applications before the concerned\n\nMagistrate for return of the seized property/vehicle and the\n\nMagistrate shall consider the same in accordance with law.14. However, it is made clear that if the seized stock of\n\ntobacco products or other products are expired, the same shall be\n\ndestroyed by taking permission from the concerned Magistrate.15. During the course of hearing, it was brought to the\n\nnotice of this Court that the learned Magistrates are receiving\n\nremand of accused and sending them to judicial remand for the\n\naforesaid offences without going through the order dated\n\n05.07.2021 passed by this Court in Mohd. Jameel Ahmed. In\n\nview of the same, the Registrar (Judicial) is directed to circulate a\n\ncopy of this order and a copy of the said order dated 05.07.2021 to\n                                                                            KL,J\n                                                 Crl.P. No.5619 of 2020 & batch11all the Magistrates in the State of Telangana for perusal and taking\n\nnecessary action in the cases relating to the aforesaid offences.As a sequel, miscellaneous petitions, if any, pending in the\n\ncriminal petitions shall stand closed.____________________\n10th June, 2022                                     K. LAKSHMAN, J\n\n\nNote:Annex a copy of the order dated 05.07.2021\nin Crl.P. No.152 of 2020 and batch. (B/O.) Mgr