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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
CHILLAKUR SUMALATHA, J.
Kuru Vijay Kumar, S/o. Ramalingam and Another - Petitioners
Versus
The State of Telangana, reptd. by its by Public Prosecutor and Another - Respondents
Criminal Petition Nos.9062 and 9554 of 2021 and Criminal Petition Nos.607, 2633, 2634, 2636, 2639, 2816, 2892, 2900, 4980, 4987, 5035, 5052, 5071, 5075, 5078, 5090, 5804, 5805, 5806, 5811, 5836, 5859, 5867, 5894, 5910, 5953, 5983, 5985, 6034, 6056, 6058 and 6105 of 2022
Decided On : 14-07-2022
Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 - Sections 3(m), 5, 6(b), 7(2), 7(5), 20(2), 24(1) and 23 – Indian Penal Code, 1860 - Sections 188, 269, 270, 272, 273, 278, 328, 511, 336, 409 and 420 - Excise Act, 1968 - Section 34(a) - Food Safety and Standards Act, 2006 - Section 59(1) – Criminal Procedure Code, 1973 - Section 482 - Trade and commerce of tobacco products - Possession of tobacco products - Quash proceedings - Accusation is made against petitioners does not attract to facts of case and thereby, seeking to quash proceedings that are pending against petitioners – Held, Specified warning (pictorial or otherwise) is not present over products that were seized - Malignance in activities of petitioners is not projected - Thus, having regard to settled legal position on exercise of jurisdiction and power under Section 482 Cr.P.C. and specific facts of this case, court is of considered opinion that exercise of jurisdiction under Section 482 Cr.P.C. is essential to prevent abuse of process of law - Ultimate conclusion of court is that unless and until a comprehensive legislation either regarding ban or restricted use of tobacco products and regulating their production, trade and supply is brought into force, though it is universally recognised that use of tobacco products is injurious to health, persons dealing with those products cannot be booked under law - Proceedings initiated against petitioners in respective cases are quashed - Petitions are allowed.
ORDER :
Projecting that the provisions of law under which the accusation is made against the petitioners does not attract to the facts of the case and thereby, seeking to quash the proceedings that are pending against the petitioners, these Criminal Petitions are filed.
2. Seeking to quash the charge sheets, Criminal Petition Nos.9554 of 2021, 607, 5910, 5894, 2633, 2636, 2639, 2816, 4980, 4987, 5035, 5052, 5078, 5805, 5806, 5811, 5953, 5859, 5867, 5983, 6056, 6058 and 6105 of 2022 are filed.
3. Seeking to quash the F.I.Rs, Criminal Petition Nos.9062 of 2021, 2892, 2900, 5090, 2634, 5071, 5075, 5836, 6034, 5985 and 5804 of 2022 are filed.
4. A meticulous perusal of the material that is available on record in all the Criminal Petitions discloses making of accusation against the petitioners invoking Sections 3(m), 5, 6(b), 7(2), 7(5), 20(2), 24(1) and 23 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as “the COTP Act, 2003”, for brevity). As far as the provisions attracting the Indian Penal Code are concerned, they are Sections 188, 269, 270, 272, 273, 278, 328 read with 511, 336, 409 and 420 IPC.
5. In Criminal Petition No.9554 of 2021, Section 34(a) of Excise Act, 1968 and in Criminal Petition No.9062 of 2021, Section 59(1) of Food Safety and Standards Act, 2006 were also invoked.
6. The sum and substance of the version of the prosecuting agency in all these cases is that the petitioners were in possession of the tobacco products like gutka, pan masala, etc., and they were found involved in activities like selling, storing or transporting the said tobacco products.
7. For proper understanding of the case, the provisions of law invoked, the gist of the allegations and the crux of the matters taken up for adjudication are tabulated as under:
| Sl. No | Crl.P. No. | RELIEF SOUGHT FOR | SECTIONS OF LAW INVOLVED | NATURE OF OFFENCES | ||
|
|
|
| COTP Act | IPC | OTHER LAWS |
|
| 1 | 9554 of 2021 | Quash of CC No.457 of 2020 pending on the file of court of Judicial Magistrate of First Class, Huzurnagar. | 23, 20(2) | 273 | 34(a) of AP Excise Act, 1968 | Selling and transportation of tobacco products. 1) K-9000 gutka-30 packets 2) blue bull tobacco-30 packets 3) mc dowels whisky quarter-46 Royal stag quarter-40 |
| 2 | 2892 OF 2022 | Quash of FIR.No.93 of 2022 of Ibrahimpatnam Police Station, Rachakonda. (petitioners A1 &A2) | 20(2) | 270 and 273 | NIL | Selling and transportation of tobacco products. (1) K9000 gutka packets-120 pouches. (2) H-10 cigarettes-35 packets |
| 3 | 9062 OF 2021 | Quash of FIR No.330 of 2021 of Ellanthankunta Police Station, Rajanna Siricilla district. (Petitioner A1 &A2) | NIL | 270, 273, 328 R/W 511 | 59(i) FSSA, 2006 | Possession and selling of Tobacco products. Amber gutka packets-48 Vimal packets-155 V-1 packet-208 Paris cigarette-42 |
| 4 | 607 OF 2022 | Quash of CC.No.1138 of 2020 pending on the file of JFCM at Nalgonda (petitioners A2) | 7(5), 20(2) | 272, 273 and 420 | NIL | Selling and transportation of tobacco products. 1) cigarette ESSE light-5 packets. 2) Paris big size cigarette-10 packets, 3) Strawberry Mond super slim cigarettes-3 packets, 4) Paris small size cigarette-13 packets. |
| 5 | 2900 OF 2022 | Quash of FIR No.15 of 2022 of Adavidevulapally Police Station(petitioners A2,A3,A7,A8) | 20(2) | 188, 272, 273, 420 | NIL | Transportation and Possession of banned products, viz., tobacco/ /gutka/khaini etc. (1) blue bull – 12 bags. (2) K-9000 Gutka - 5bags |
| 6 | 5910 OF 2022 | Quash of CC.No.2263 of 2022 pending on the file of the Court of VII Additional Chief Metropolitan Magistrate, Hyderabad (sole accused | Nil | 272, 273, 336 | Nil | Selling tobacco products: 1) Paris Cigarettes 239 boxes |
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....
Point of law: Section 89 of the FSSA, gives the provisions of the FSSA, an overriding effect on all other food related laws. Once it is held that tobacco and other products, fall within the definitio....
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....
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.
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