ORDER

The petitioners are the accused Nos.1 and 2 in Crime No.601/2014 of Shornur Police Station which is now pending as C.C.No.260/2015 before the Judicial First Class Magistrate Court Ottappalam. The offences alleged against the petitioners are under Section 118(e) of Kerala Police Act, 2011.

2. The prosecution case is as follows: On 23.07.2014, when the Sub Inspector, Shornur and his team were conducting patrol duty, a secret information was received by them to the effect that a mini lorry parked in front of the Shornur Railway Parcel Office is containing banned tobacco products. Acting upon the said information, the Police party conducted an inspection and found a mini lorry bearing registration No.KL-46-C-8691. Upon verification, it was found that it contained 28 sacks of pan masala products. Two persons who were in the vehicle were also arrested and the articles were seized. Consequently, Crime No.601/2014 was registered for the offences punishable under Section 118(e) of Kerala Police Act, 2011 and also under Section 7 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. After completing the investigation on the said FIR which is Annexure A1 in this proceedings, a final report was filed by the Police for the offence under Section 118(e) of Kerala Police Act. Annexure A4 is the said final report and cognizance of the same was taken by the learned Magistrate as C.C.No.260/2015.

3. This Crl.M.C. is filed seeking to quash all further proceedings in Annexure A4 final report and in the above mentioned Calendar Case.

4. Heard Sri.Saju S. Nair, learned counsel for the petitioners, and Sri.Aravind V. Mathew, learned Public Prosecutor for the State. 5. Main contention put forward by the learned counsel for the petitioners is that the proceedings initiated against the petitioners herein were under the impression that the articles which were seized in the said inspection were prohibited items, as those were pan masala containing tobcacco and nicotine.. However, in the chemical examination report which is marked as Annexure A3 herein, no presence of tobacco or nicotine could be found. It was pointed out by him that what is prohibited by the Government is the pan masala containing tobacco and nicotine alone. Therefore, it was contended that in the absence of tobacco and nicotine in the aforesaid products, the offences under Section 118(e) is not attracted. It was also contended that the petitioners were only transporting the aforesaid articles and no investigation was made by the Police with regard to the assigners and assignees of the aforesaid products. In such circumstances, he sought for an order to quash the entire proceedings as against them.

6. On the other hand, the learned Public Prosecutor would contend that, even though the presence of tobacco and nicotine could not be found, Annexure A3 certificate of examination would clearly indicate that, it contained synthetic food colour which is harmful to the health and therefore the offence is attracted.

7. The specific case of the petitioners is that, even though the entire proceedings were initiated under the premise that the pan masala which was seized from the possession of the petitioners contained tobacco and nicotine. The pan masala containing tobacco and nicotine were prohibited by the State Government as per the order bearing No.A/1327/2012/CFS dated 22.05.2012 which was published in the gazette on 23.05.2012. The operative portion of the aforesaid notification which is issued under Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 reads as follows:

“Now, THEREFORE, in pursuance of regulations 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, the manufacture, the storage, the sale or the distribution of gutkha and pan masala containing tobacco or nicotine as ingredients, by whatsoever name it is