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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT: HYDERABAD
K. LAKSHMAN, J.
Mr. Mohd. Jameel Ahmed - Appellant
Versus
The State of Telangana & another - Respondents
Criminal Petition Nos.152, 153, 155, 162 & 5826 OF 2020 AND 3498, 3500, 3509, 3514, 3768, 3879, 4046, 4070, 4077, 4098, 4099, 4100, 4102, 4110, 4119, 4140, 4141, 4151, 4157, 4178, 4182, 4187, 4194, 4216, 4230, 4247, 4249, 4251, 4258, 4262, 4277, 4361, 4405, 4415, 4542, 4612, 4615, 4622, 4632, 4640, 4681, 4727, 4775 & 4825 OF 2021
Decided on : 05-07-2021
Indian Penal Code, 1860 - Sections - 188, 270, 269, 271, 272, 273, 328, 336 & 420 read with 34 and 511 - Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 - Sections - 58 and 59 - Food Safety and Standards Act, 2006 - Section - 3 - Epidemic Diseases Act, 1897 - Section - 51 (b) - Disaster Management Act, 2005 – Seeking quashment of Proceedings - Adulteration of food or drink intended for sale – Cheating - Disobedience to order duly promulgated by public servant - Allegations against petitioners - accused are that they were transporting, possessing, storing, selling and purchasing the banned products viz., tobacco/tambaku/gutka/khaini/zarda/pan masala respectively. Finding of the Court :
There is no general ban or general prohibition on the manufacture/sale of tobacco products. 22 What is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections - 5 and 7 of the COTP Act, deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed. This is a regulatory mechanism only. Therefore, according to this Court, the above said allegations of transportation, possession, storage, sale and purchase of banned tobacco products will not attract the offence under Section -7 of the COTP Act - Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Country - There is no such inducement either at the inception or at a later stage. Thus, the contents of complaints/charge sheet lack the ingredients of Section - 420 of IPC - Lacks the ingredients of Section
Result : Criminal Petitions allowed
ORDER :
All the above Criminal Petitions are filed to quash the proceedings against the petitioners - accused in respective Crimes/Calendar Cases. The details of relevant Crimes/Calendar Cases, offences alleged, nature of offences etc., are mentioned in the following tabular form:
| Sl. No. | Crl.P. No. | Crime No. | Accused Number | Offences allegedly committed | Nature of offence | ||||||
| 01. | 3768/21 | 217/20 of PS Manoharabad | sole accused | 272, 273 IPC & 20 (2) r/w 7(2) of COTPA | Transportation of Amber tobacco | ||||||
| 02. | 3879/21 | 33/21 of PS Kadam | sole accused | 270 & 273 IPC | Sale of banned tobacco products | ||||||
| 03. | 4046/21 | 78/21 of PS (T) Adilabad | A1 & 2 | -do- | Sale of gutka/tobacco illegally in godown | ||||||
| 04. | 4077/21 | 21/21 of PS Easgoan | sole accused | -do- | Possession of gutka/tobacco in pan shop | ||||||
| 05. | 4098/21 | 185/21 of PS (T) Nirmal | A1 to 3 | 270, 273 IPC & 20 (2) of COTPA | Transportation of prohibited gutka | ||||||
| 06. | 4099/21 | No.36/21 of PS Koutala | sole accused | 270 & 273 IPC | Possession of tobacco products in the house | ||||||
| 07. | 4100/21 | No.38/21 of PS Easgoan | sole accused | 270 & 273 IPC | Possession of banned gutka & other tobacco items in pan shop | ||||||
| 08. | 4102/21 | 455/21 of PS Kukatpally | sole accused | 336, 273 & 188 IPC & 59 (i) of FSSA | Transportation and sale of prohibited tobacco products | ||||||
| 09. | 4141/21 | 45/21 of PS Chiragpally | A1 to 3 | 270 & 273 IPC & 20(2) r/w 7(2) of COTPA | Transportation of tobacco products | ||||||
| 10. | 4151/21 | 198/21 of PS Choutuppal | sole accused | 272 & 273 IPC & 20 (2) of COTPA | Storage of tobacco products for sale | ||||||
| 11. | 4157/21 | 134/21 of PS Chityal (NLG) | A1 to 4 | 272, 273 & 328 IPC & 20 (1) & 7 (3) of COTPA | Purchase and sale of prohibited tobacco products | ||||||
| 12. | 4182/21 | 74/21 of PS Raghunadhpalem | A1 & 2 | 270 & 273 IPC | Transportation of banned tobacco/gutka | ||||||
| 13. | 4187/21 | 202/21 of PS (T) Mancherial | sole accused | -do- | Possession of banned tobacco products | ||||||
| 14. | 4247/21 | 61/21 of PS II Town Adilabad | sole accused | -do- | Possession of banned gutka products |
| |||||
| 15. | 4249/21 | 101/21 of PS I Town Adilabad | A1 & 2 | -do- | Sale of gutka and tobacco products |
| |||||
| 16. | 4251/21 | 90/21 of PS I Town Adilabad | sole accused | -do- | About to transport noxious gutka and tobacco products |
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| 17. | 4258/21 | 91/21 of PS I Town Adilabad | sole accused | -do- | Sale of banned gutka and tobacco products |
| |||||
| 18. | 4262/21 | 107/21 of PS I Town Adilabad | A1 & 2 | -do- | Transportation of gutka and tobacco products |
| |||||
| 19. | 4277/21 | 162/21 of PS Abdullapurmet | A1 to 3 | 188, 272, 273 & 328 IPC | Sale of banned tobacco (tambaku) products in lorry |
| |||||
| 20. | 4405/21 | 202/21 of PS I Town Nalgonda | sole accused | 188, 272 & 273 IPC | Transportation of gutka/tobacco products |
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| 21. | 4415/21 | 232/21 of PS II (T) Nalgonda | sole accused | -do- | Possession of banned gutka/tobacco products |
| |||||
| 22. | 4542/21 | 87/21 of PS III (T) Kothagudem | A1 & 2 | 188, 269, 270, 273 r/w 34 IPC & 3 of EDA & 51 (b) of DMA | Possession of tobacco products in kirana shop |
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| 23. | 4615/21 | 225/21 of PS Nirmal Town | A1 & 2 | 270 & 273 IPC | Possession of prohibited tobacco products for sale |
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| 24. | 4640/21 | 89/20 of PS Mamada | A1 | -do- r/w 34 IPC | Transportation of banned tobacco/gutka pockets |
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| 25. | 4681/21 | 186/21 of PS Peddavoora | A2 | 328 r/w 511, 272 & 273 IPC | Possession of banned gutka & tobacco products in kirana shop |
| |||||
| 26. | 4727/21 | 164/21 of PS Adibatla | A2 | 270, 272 & 273 IPC & 20 (2) of COT | |||||||
Point of Law : Food Adulteration - Negligent act likely to spread infection of disease dangerous to life –Criminal Proceedings Quashed - Act done by petitioners i.e., transportation of khaini and che....
The Food Safety and Standards Act does not apply to tobacco products, and violations of mandatory provisions under the NDPS Act invalidate the prosecution.
Prosecution under IPC and FSSA for tobacco products is unsustainable; mandatory provisions of NDPS Act must be followed to maintain charges.
Restriction imposed trade and business in chewing/chewable tobacco products is in larger public interest and is a reasonable restriction and in no way offends right to carry on trade guaranteed under....
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