Prosecution under IPC and FSSA for tobacco products is unsustainable; mandatory provisions of NDPS Act must be followed to maintain charges.

ORDER:

The Criminal Petition is filed by the petitioners/A-1 to A-3, A-5 to A-7 and A-10 U/s.482 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) to quash the charge sheet in NDPS S.C.No.34/2023 on the file of learned I Addl.District & Sessions Judge, Nellore, SPSR Nellore District.

02. Heard Sri P.Venkateswarlu, learned Senior Counsel for the petitioners and Sri A.Sai Rohith, learned Assistant Public Prosecutor representing the State/respondents No.1 to 3.

03. The contention of the petitioners is that they were prosecuted for the offence under sections 120-B, 272, 273, 353 r/w.34 of Indian Penal Code, 1860 (for short, “I.P.C.”), section 58 of Food Safety and Standards Act 2006 (for short, “the FSSA, 2006”), U/s.20 (b)(ii)(B) r/w.8(c) of NDPS Act, 1985 and section 192 of M.V.Act.

04. The gravamen of the charge is that on 17.01.2018 at about 07.30 a.m. Inspector of Police, Gudur Rural Circle (L.W-16) intercepted a motor vehicle bearing No.TN 22 CH 4455 proceeding to Nellore from Chennai; found A-2 to A-4 in the cabin of the vehicle; the vehicle was carrying empty egg trays and white plastic bags; Inspector of Police checked the bags and found gutka sachets as well ganja weighing about 7.6 KGs; he recorded the confession statements of A-2 to A-4 and a case was registered vide Cr.No.9/2018 dated 17.01.2018 for the above offence against A-2 to A-4 and others including the petitioners; conducted investigation into the offence; and on conclusion, laid charge sheet before the learned I Addl.District & Sessions Court, Nellore.

05. The contention of the petitioners/A-1 to A-3, A-5 to A-7 and A-10 is that the case was registered for the offence U/secs.272, 273 IPC on the allegation that gutka packets contained tobacco products, as it is against Food Safety and Standards Act, 2006: It is not sustainable in law as this Court in several judgments quashed cases holding that the offence U/secs.272, 273 IPC and section 58 of Food Safety and Standards Act, 2006 is not applicable to the tobacco products.

06. The other contention of the petitioners is that charge sheet filed for the offence U/s.20 (b)(ii)(B) r/w.8(c) of NDPS Act, 1985 is also not sustainable in law, as no contraband was seized from the possession of the petitioners; and further, police did not follow mandatory provisions under NDPS Act, 1985; therefore, they approached this Court for quashing of charge sheet against the petitioners herein as it amounts to abuse of process.

07. Sri P.Venkateswarlu, learned Senior Counsel would submit that Hon’ble Division Bench of this Court in W.P.No.30185/2021 and other writ petitions vide common order dated 24.03.2023 held that “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, “the COTPA, 2003”) is a special Act dealing with tobacco and tobacco products. Whereas Food Safety and Standards Act, 2006 is a general Act and seizure of tobacco products by the police under Food Safety and Standards Act, 2006 is bad in law and no coercive action be taken under the said Act” and quashed the criminal proceedings, which were registered by the police under the provisions of Food Safety and Standards Act, 2006 for transportation of pan masala containing tobacco products. Therefore, in the case on hand, the prosecution against the petitioners for the offence U/s.58 of Food Safety and Standards Act, 2006 is not sustainable in law.

08. The learned Senior Counsel for petitioners would further argued that undisputedly no ganja was seized from the possession of the petitioners in the case and they were roped in the case basing on the alleged confessional statements of other accused (A-2 to A-4); further, the admitted facts in the case would disclose that police did not follow sections 52(A) and 55 of NDPS Act, 1985 at the time of alleged seizure of ganja of 7.6 KGs from the possession of A-2 to A-4; therefore, in the light of judgm