JUDGMENT :

1. This Criminal Original Petition has been filed seeking to quash the FIR in Cr.No.18 of 2019, pending investigation on the file of the 1st respondent Police.

2. The case of the prosecution is that based on a secret information received from a credible source on 14.01.2019, the 2nd respondent along with other police officers were waiting near Keerambur Toll-Plaza. At about 20.00 hours, they stopped a Lorry and found that it contained banned items like, Tobacco, Gutkha and Panmasala. On enquiry, they found that it was transported from Bangalore and was being taken to the godown owned by the petitioner. The driver of the vehicle and another person accompanying him were arrested and the entire property was seized under the cover of Mahazar and a sample was also sent for expert opinion. Based on the complaint given by the 2nd respondent, an FIR came to be registered against four named accused persons in Cr.No.18 of 2019, for an offence under Sections 273 & 328 of IPC r/w 7 & 20(1) of COTPA Act, 2003 and Section 52 & 59 of Food Safety and Standards Act, 2006. The petitioner has been added as A-3 in the FIR.

3. Mr.V.Karthick, learned Senior Counsel appearing on behalf of the petitioner made the following submissions:

* The manufacture, storage, transport, distribution or sale of all food products chewable or otherwise in the name of Gutkha, Panmasala and other food products containing Tobacco and/or nicotine as ingredients, has been prohibited in the interest of public health. The G.O., does not provide for the consequence of the violation of the G.O., and therefore the possession of Tobacco products by itself is not an offence.

* No overt act has been attributed against the petitioner except for the confession of the co-accused to the effect that the Tobacco products were brought to be stored in the godown belonging to the petitioner.

* The respondent Police is not the Competent Authority to register the FIR for the offence under the Food Safety and Standards Act, 2006 and the Act itself contemplates filing of a private complaint by the concerned authority. Therefore, the FIR registered by the respondent Police for the offences under Sections 52 & 59 of the Food Safety and Standards Act, 2006 are not sustainable

* The allegations made in the complaint even if taken as they are, do not attract the provisions of Section 7 and Section 20(1) of Cigarette and other Tobacco Products Act, 2003. The said provision only deals with regulation of production, supply and distribution of Cigarette or any other Tobacco products without there being a specified warning including a pictorial warning. The facts of the present case will have no application to Section 7 of the Act, and consequently the FIR cannot be sustained for the punishment provided under Section 20(1) of the Act.

* The provisions of Section 273 of IPC, are not attracted in the present case since it will apply only in cases where an accused person is involved in selling or offering, as food or drink, any article which has been rendered or has become noxious or has become unfit for food or drink. In the present case, the product that has been seized cannot be rendered to be noxious without there being any report to that effect and even without a report, the respondent Police ought not to have registered an FIR for an offence under Section 273 of IPC.

* The allegations made in the complaint also does not attract the provisions of Section 328 of IPC since the provision itself contemplates an actus-reus by way of administration or causing somebody to take a poisonous or other substance. In the present case, there is no physical act attributed to the petitioner until now the product that has been seized has not been declared to be poisonous.

* The learned Senior Counsel in order to substantiate his submissions relied upon the following judgments:

I. Shambhu Dayal Agrawal and Ors Vs. State of Gujarat reported in 2003 (2) Guj LH 621.

II. Jeewan Kumar Raut & Another Vs. Central Bureau of I