IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on

01.08.2019

Delivered on

07.08.2019

CORAM:

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

Crl.OP No.17533 of 2019

and

Crl.MP.No.8853 of 2019

Thangaraj @ Thangarasu

..Petitioner/Accused No.3

.Vs.

1.State,

rep. by the Inspector of Police,

Paramathi Police Station,

P.Velur Taluk,

Namakkal District.

.... 1^st Respondent/Complainant

(Crime No.18/2019)

2.S.Malarvizhi,

Sub- Inspector of Police,

Paramathi Police Station,

P.Velur Taluk,

Namakkal District.

.. 2^nd Respondent/Defacto Complainant

PRAYER: This Criminal Original Petition is filed under Section

482 of the Code of Criminal Procedure, to call for the records

relating to FIR in Crime No.18 of 2019 dated 15.01.2019, on the

file of the 1^st Respondent, the Inspector of Police, Paramathi

Police Station, Namakkal District and quash the same.

For Petitioner : Mr.V.Karthik, Senior Counsel

for Mr.C.Prabakaran

For Respondents : Mr.M.Mohamed Riyaz, APP

ORDER

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 1^st respondent Police.

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2.The case of the prosecution is that based on a secret

information received from a credible source on 14.01.2019, the

2^nd 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 2^nd

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

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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, an