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2019 DIGILAW 941 (HP)

Colonel Suresh Chand v. State of H. P.

2019-07-12

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. Since Criminal Revision Petition No. 399 of 2016, and, CRMMO No. 280 of 2017, arise, from, a common incident, hence, both are amenable, for, a common verdict being pronounced thereon. 2. Through Criminal Revision Petition No. 399 of 2016, the petitioner, seeks quashing of order of 26.8.2016, rendered by the learned Judicial Magistrate, Barsar, in police challan No. 133-1 of 2011, wherethrough, he ordered for putting notice of accusation, vis-a-vis, the accused/petitioner herein, for, his committing an offence punishable, under, Section 4 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 . On the other hand, in CRMMO No. 260 of 2017, the petitioner seeks quashing of order of 18.7.2011 rendered by the learned Judicial Magistrate, 1st Class, Barsar, District Hamirpur, H.P., wherethrough, cognizance was assumed by him, vis-a-vis, the accused/petitioner hence committing, an offence punishable, under, Section 21 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. 3. At the outset, the incident wherefrom Criminal Revision Petition No. 399 of 2016, hence arises came to be promptly reported, whereas, the incident wherefrom CRMMO No. 260 of 2017, hence arises, rather came to be belatedly reported, and, effects thereof, would be, construed hereafter. 4. During the course of hearing being, made, upon, the afore petitions, the Superintendent of Police, Hamirpur, made a communication, embodied in letter No.43482, and, the apt echoings borne therein are reproduced hereinafter. A perusal thereof underscores, vis-a-vis, the accused/petitioner, being found smoking near, the, traffic police post, Mehre, and, his purportedly committing, the, afore offence, during, the day hours, and, about 50-100 remaining present, at, the bus stop Mehre. "It is further submitted that on 13.6.2001 at about 5.50 p.m. when Sub Inspector Satish Kumar alongwith police party was on patrolling at Mehre Bazar, a person was smoking near traffic police Post, Mehre. SI Satish Kumar told him that it is a public place and smoking is prohibited herein. SI Satish Kumar asked his name but he refused to disclose. SI Satish Kumar told him that it is a public place and smoking is prohibited herein. SI Satish Kumar asked his name but he refused to disclose. When SI Satish Kumar again asked his name, he very rudely said that his name is colonel Suresh Kumar, S/o Fateh Chand R/o VPO Karsai Tehsil Barsar District Hamirpur, HP and said that you only can make his challn for smoking and you are not empowerd to challan for more than Rs.200/-. After this SI Satish Kumar made his challan under Section 21 of the Cigarettes and other Tobacco Products Act, 2003. It is further submitted that the place where Colonel Suresh Kumar was smoking is also within the main Bus Stop Mehre and in the day time about 50/100 or more persons remain present there." 5. For determining, whether the challan, as, submitted for assumption(s) of cognizance, respectively, being valid or invalid, thereupon, an allusion vis-a-vis the afore enunciations, embodied in the letter of Superintendent of Police, District Hamirpur, H.P, is, also of grave importance. Since as afore-stated, it carries a narration, vis-a-vis, the relevant incident hence taking place, at bus stop Mehre, during, day hours, and, 50-100 persons being present there, and, when hence there is a disclosure therein, qua, the incident taking place, in an open place, thereupon, it has to be construed (i) qua the attraction, of, Section 4 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003, vis-a-vis, the petitioner herein, and, also attraction, if any, vis-a-vis, the prior thereto, analogous therewith provisions, hence borne in Section 5 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, against the petitioner herein rather being valid or not, (a) and, further upon the ingredients, vis-a-vis, the purportedly committed offence, remaining unsatiated, qua whether the order(s) impugned, being meritworthy or otherwise. The afore provisions are extracted hereinafter, and, reading(s) thereof, make, clear underscorings, vis-a-vis, the requisite statutory prohibition, contemplated in the afore provisions, barring a person to smoke, in, an open public place. The afore provisions are extracted hereinafter, and, reading(s) thereof, make, clear underscorings, vis-a-vis, the requisite statutory prohibition, contemplated in the afore provisions, barring a person to smoke, in, an open public place. "Section 4 of the Cigarettes and other Tobacco Productions (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003- Prohibition of Smoking in a Public place- No person shall smoke in any public place: provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports a separate provisions for smoking area or space may be made. Section 5 of the Himachal Pradesh Prohibition of smoking and Non-smokers Health Protection Act, 1997- No persons shall smoke in any place of public work or use." 6. Necessarily hence the definitions of public place, as, embodied, in the Central Act, and, also as embodied in the State Act, are to be alluded, to, and both the statutes commonly define " place of public work, and, use". A reading of the similar definitions, made, vis-a-vis, public place, in the Central Act, and, as ascribed vis-a-vis "place of public work and use" latter phrase whereof is embodied in State Act, make, hence palpable underlinings (i) qua both the afore ousting from, the definitions(s) thereof " any open place". The ouster, of any "open place", from, the definition of "public place", in the Central Act, and, also from the definition of "place of public work and use", in State Act, (ii) when stands construed, in entwinment, with, the afore echoings borne, in, the letter addressed to this Court, by the Superintendent of Police, Hamirpur, does generate, an inference, vis-a-vis, (a) the accused/petitioner hence smoking in an open place (b) and the mere fact, vis-a-vis, his being allegedly found smoking near the traffic police Police, Mehre, located within the main bus stop, Mehre, and, during the day hours, is wholly insignificant, as, there does not exist, any notification issued by the State or the Center Government, hence declaring the afore open space, to be also a public place, (iii) rather whereat hence smoking by any person, is prohibited, thereupon even the afore incident, wherefrom Cr. Revision No. 399 of 2016 stood reported, and, whereas the incident borne in Cr.MMO No. 260 of 2017 rather stood reported belatedly, and, with no explanation being purveyed by the Investigating Officer concerned, for, his belatedly reporting the matter, appertaining, to Cr.MMO No. 260 of 2017, (iv) thereupon, the incident embodied in Cr.MMO No. 260 of 2017, is, construed to be a sequel of sheer concoction and premeditation, besides the afore discussion, also begets a conclusion, vis-a-vis, the statutory ingredients, appertaining to the offence, remaining unsatiated, and, thereupon, the impugned order(s) are set aside. 7. Be that as it may, a perusal of the record, of both, the petitions reveal, vis-a-vis, the reporting, by the Investigating Officer hence standing engendered, from, his rearing a personal vendetta against the petitioner. The afore inference is garnered, from Annexure P-9, existing on the file of Cr. Revision No. 399 of 2016, Annexure whereof is a letter addressed by the Superintendent of Police, Hamirpur to the Director General of Police, Himachal Pradesh, with, clear articulations borne therein, vis-a-vis, Sub Inspector Satish Kumar, snatching the mobile carried by the son of the petitioner, and, thereafter his returning it to him. The afore echoings assume an aura of validity, and, the imminent sequel thereof, is, that therefrom the complainant, nursing a vendetta against the accused, and, thereupon the entire genesis of the occurrence, appears to be sparked by malafides, and, vendetta reared, by the complainant, obviously, and, reiteratedly, arising, the afore evident articulations borne, in Annexure P-9. In view of the above, there is merit in the petitions, and, the same are accordingly allowed, and, the impugned orders are quashed and set aside. All pending applications stand disposed of accordingly.