Point of Law : A person simply procured and kept tobacco products at his/her residence cannot be prosecuted u/s 24 of COTPA Act or S.77 of the JJ Act. Nor can he/she be prosecuted u/s 118(i) of the KP Act unless his/her residence is situated near school premises.

ORDER :

1. This Crl. M.C. has been filed to quash Annexure A1 final report in C.C. No. 288/2020 on the file of the Judicial First Class Magistrate Court, Adimaly, Idukki invoking S.482 of Cr.P.C.

2. The petitioner is the accused. The offence alleged against him are u/s 6 r/w S.24 of the Cigarattes and Other Tobacco Products Act, 2003 (for short COTPA Act) u/s 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short the JJ Act) and S/118(i) of Kerala Police Act, 2011 (for short the K.P. Act.)

3. The prosecution case in short is that, on 23.2.2020, the accused without any valid licence or documents, was found in possession of prohibited tobacco products of GANESH and HANS of total 2770 packets which were kept at his residence with intention to sell the same to the children.

4. I have heard Sri. K.R. Vinod, the learned counsel for the petitioner and Sri. C.K. Suresh, the learned Additional Director General of Prosecution.

5. The learned counsel for the petitioner/accused submitted that even if the entire allegations in the FI statement or final report together with all the materials collected during the investigation are taken together at their face value, they do not constitute the offences alleged.

6. S.6 of the COTPA Act prohibits sale of cigarettes and other tobacco products to a person below the age of 18 years and in an area within a radius of 100 yards of any educational institution. It reads as follows:

“6. Prohibition on sale of cigarettes or other tobacco products to a person below the age of eighteen years and in particular area - No person shall sell, offer for sale or permit sale of, cigarettes or any other tobacco product:

(a) to any person who is under eighteen years of age.

(b) In an area within a radius of one hundred yards of any educational institution.”

7. The section takes into two offences; both are distinct and separate. The first part provides that irrespective of the place of sale, if the cigarette or any other tobacco product are sold to a person who is under eighteen years of age, then it would be an offence. The second part provides that irrespective of the age of the customer, if any such tobacco product is sold in an area within a radius of 100 yards of any educational institution, then also it will attract the offence. The first part of the section makes it an offence focusing on the age of the purchaser irrespective of the place of sale, the second part of the section make sale in that prohibited area an offence irrespective of the age of that person [Shajahan vs. State of Kerala, 2012 (4) KLT 838]. In either case, there should be actual sale, offer for sale or permission for sale. The word “sale” has been defined u/s 3(m) of the COTPA Act as follows:

“(m) “sale” with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another, whether for cash or on credit, or by way of exchange and whether wholesale or retail and includes an agreement for sale, and offer for sale and exposure for sale.”

8. The above provisions make it crystal clear that to attract S.6, one must actually sell or offer to sell or expose to sell or permit the sale of cigarette or tobacco product to a person below the age of 18 years or in an area within a radius of 100 yards of any educational institution. Mere keeping of the tobacco products at the residence of the accused will not in any way attract the offence. The prosecution has no case that the petitioner sold or offered for sale or permitted sale of the cigarette or tobacco products. The only case of the prosecution is that the petitioner kept the tobacco products at his home with intention to sell. That apart, there is no case for the prosecution that any educational institution is situated within a radius of 100 yards of the petitioner's house so as to attract the second part of S.6. For these reasons, I hold that S.6 of the COTPA Act is not attracted.

9. S.77 of the JJ Act says that whoever gives, or caus