Mohammed Faisal Vs The State

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY ,THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.LAKSHMAN CRIMINAL PETITION NO: 5430 OF 2022 ALONG WITH t.A.NO.2 0F 2022 Between:
. Mohammed Faisal, S/o Mohd. Afzal, Aged about 28 years' occ. Business, '1 R:/o H.No.5-1-652, Troop Bazar, Nampally, Hyderabad.
2. Mohammed Ahmed Pasha, S/o lVohd. Khader Pasha, Aged about 40 years, Occ. Driver, Rl/o H.No.'19-4-34O1761H, Kishan Bagh, Hyderabad.
...PETITIONERS/ACCUSED Nos.1 &2 AND The State of Telangana, through Police Station lvlalakpet, Hyderabad, rep by Public Prosecutor, High Court, HYderabad.
...RESPONDENT/COMPLAINANT Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the F.l.R.No.8Bl2022 daled. 1610312022 of Police Station Malakpet, Hyderabad, against the petitioners/ Accused No.'1 and 2 herein, for the interest of justice.
l.A. NO: 2OF 2022 Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to pas6 an order, directing the respondent herein to release the seized vehicle i.e. Hundai Accent Car bearing registration No. AP 10 AO 6444 and as well as seized permissible tobacco products in F.l.R.No.BB/2022 dated: 16-03-2022 of Police Station Malakpet, Hyderabad, and handover the same to the petitioner/A-1, pending disposal of main Crl.P. in the interest of justice.
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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of criminal Petition and upon hearing the arguments of Sri S.Chandrasekhar, Advocate for the Petitioner and the Assistant Public Prosecutor on behalf of the Respondent'
The Court made the following: ORDER THE HONOURABLE SRI JUSTICE K.LAKSHMAN CRIMINAL PETITION No.543O OF 2022 ALONG WITH LA.No,2 of 2022 COMMON ORDER:
This Criminal Petition under Section 482 of the Code of Crimina1 Procedure, 1973 (for short Cr.P.C.'), is filed seeking to quash the proceedings against the petitioners herein in Crime No.88 of 2022, pending on the file of Malakpet Police Station, Hyderabad District.
2. The petitioners herein are accused Nos.l and 2 in the said crime. The offences alleged against them are under Sections 272, 273, 328 read rvith 51 1 of Indian Penal Code .
and Section 20(21 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution)
Act, 2003 (for short'COTP Act').
3. Heard Sri S.Chandra Sekhar, learned counsel for the petitioners and learned Assistant Public Prosecutor for the respon dent- State. Perused the record Cd.P.No.5430 of 2022
4. Perusal of the record would reveal that the lis invoived in this case had already been dealt with by this Court extensiveiy vide common order dated 05.O7 .2021 in Crl.P. No.152 of 2O2O and batch which was reported
11'1 Mohd. Jameel Ahmed v. State of Telanganar and also vide common order dated 10.06.2022 in Crl.P.No.5619 of 2O2O and batch.
5. Therefore, this Criminal Petition is allowed quashing the proceedings in Crime No.88 of 2022, pending on the file of Malakpet Police Station, Hyderabad District, in terms of the common order, dated O5.O7.2021 passed by this Court in Mohd. Jameel Ahmed (Supra) and also common order dated
1O.06.2022 in Cr1.P.No.5619 of 2020 and batch.
6. As the proceedings in the aforesaid crime are quashed against the petitioners, the Station House Oflicer/ Investigating Officer is hereby directed to return the seized property/vehicle on proper identification and verification of ou,nership under due acknourledgment. In case, charge sheet is already filed, the petitioners are at ' 2ouz €riLL oq2 Crl. P.No.54l0 of 2022 J liberty to lile appropriate application before the concerned Magistrate for return of the seized property/vehicle and the Magistrate sha1l consider the same in accordance with law. However, it is made clear that if the seized stock of tobacco products or other products are expired, the same shall be destroyed by taking permission from the concerned Magistrate.
As a sequel thereto, Miscellaneous petitions, if any, pending in the Criminal petition stand ciosed. ,,,Sfl-[i3,:i=-'iil oY/
//rRUE .ecnstDorrrcen \
To .a,trtiEiqi.'"'t,],,",:i::,t.j"' ,}titli[f Hvderabad (OUT)
s. Two CD CoPies 6. One SPare CoPY (813f, ':,i""1s1:'"$i%isl::,'5;1i"?3ill'?iiil3'1:'1't:1%1"11'
2020 and batch)
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t HIGH COURT DATED:2410612022 ORDER CRLP.No.5430 of 2022 ALONG WITH l.A.No.2 ot 2022 1HE SI4 tCi1. r4r v1\ \.
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Allowing the Crl.P.
{vl HON'BLE SRI JUSTICE K. LAKSHMAN CRIMINAL PETITION Nos.5619. 5638, 642L OF 2020: 3314, 6926,7361. 739L. 7455, 7543, 7873.788s. 8116. 8461. 8716. 8998, 9020, 9044, 9053, 9065. 9068. 907L. 9072.9073,9077,9079,9095, 9098, 9099. 9101. 9105, 9to7. 9tL2, 91L6, 9L21. 9L24. 9L43. 9L53. 9L68. 9205. 9226, 9252. 9256. 9264, 9266. 9294. 9294, 9339. 934L. 9343, 9368. 946L. 9469. 9449. 9518. 9534. 9s69. 9583. 9587, 9599.9629,9651. 9655. 9753. 9759. 9764. 9788. 9793, 9864. 10195. 10311 & 10314 0F 2o21 AND 308. 469, 47L, 537. 559, 574,594. 606. 6L5,627, 759. 776. 777.783.7aA.947, Ll3L. LL4t. 1192, L2o5. L206, L369. t472, L606. 1751. L756, L772. 1853. 1854, 1863. 1934. L944, 2004. 2042. 2047. 2050. 2Ls4. 2376. 2432. 2433. 2459. 2635. 2640. 2733. 2764. 2A22. 2a23. 29aL. 3040. 3093, 3094.3110.3233. 3290.3297. 3362, 3373. 3378. 3386, 3543. 3673. 3758. 3769. 3424. 4055. 4087. 4103. 4to4, 4L54. 4159. 4209, 4307. 4322. 4323 e 4586 0F
2022.

COMMON ORDER:

All these Criminal Petitions are filed by the respective petitioners under Section - 482 of the Code of the Criminal Procedure, 1913, to quash the proceedings in the respective Crimes/Calendar Cases/Sessions Cases registered for the offences under Sections - 188, 269,270,272,273,328,336 & 420 read with 34, 149,51 I of IPC; Sections - 3 (m), 20 (2),21 (l), 2l (2), 22, 7 (3) and 7 (5) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'COTP Act') and Sections - 58 and 59 (i) of the Food Safety and Standards Act, 2006 (for short 'FSS Act').

2. The nature of allegations in all these offences relate to transportation, sale, possession, manufacture, storage, etc. of tobacco products including khaini, zarda, pan masala and other such allegedly harmful and banned products.

Heard leamed counsel for the respective parties and -

leamed Public Prosecutor appearing on behalf of the respondents State, and perused the record.

4. Perusal of the record would reveal that the /rs involved in this batch ofcases had already dealt with by this Court extensively vide common order dated 05.07 .2021 in Crl.P. No. I 52 of 2020 and batch which was reported as Mohd. Jameel Ahmed v. State of Telanganal. This Court in the said case by relying on VAIIOUS decisions of the Supreme Court explained and interpreted the relevant provisions with which the Petitioners herein are charged.

5. With regard to offences under Sections - 58 and 59 (i) of the FSS Act, 2006 it was held by this Cour-t that police cannot initiate prosecution and investigate the offences under the FSS Act, 2006. The power to initiate prosecution is confered only on the Food Safety Officers appointed under the FSS Act, 2006. Further, this Court held that 'tobacco' does not fall within the def,rnition of 'food' under the FSS Act, 2006. Therefore, the Petitioners herein cannot be charged for offences under Sections - 58 and 59 (i) ofthe FSS Act, 2006.

6. Further, in relation to the offences under Sections 188, 269, 270,272, 273, 328, 336 & 420 read with 34, 149, 511 of the IPC, this Court gave detailed findings as to how the said provisions do not attract merely because tobacco products were being sold, transported, possessed, etc. This Court relying on the decisions of the Apex Courl held that only the COTP Act, 2003 will apply in relation to offences relating to sale, manufacture and distribution of ' 2022 crLJ 6q2.

.l tobacco products. Therefore, in light of this Court's decision in Mohd. Jameel Ahmed (Supra), the offences alleged under the IPC are not made out against the Petitioners herein.

7. ln relation to offences under Sections - 20 (2),7 (3) andT (5) this court in Mohd. Jameel Ahmed (Supra) had held as follows:

29. With regard to the offences under COTP Act, it is relevant to mention the objects and the reasons of the said Act itself clearly state that the act is meant to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. A reading of the said objects of the said Act would reveal that a total ban of tobacco products was not envisaged by the said Act. The Parliament merely felt it expedient to control the advertisement and sale of tobacco products. As noted earlier in the order, Section-3 (p) of the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definition of tobacco products. Section-5 of the COTP Act deals with prohibition of advertisement of cigarette and other tobacco products only. No person, who is engaged in the production, supply or distribution of cigarettes or other products shall advertise the same. Similarly, no person having the control over a medium can advertise cigarettes or tobacco products, and n

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