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2020 DIGILAW 806 (TS)

Thota Ashok Kumar v. State Of Telangana

2020-11-25

K.LAKSHMAN

body2020
JUDGMENT K. Lakshman, J. - This petition is filed under Section 482 of Cr.P.C., seeking to quash the proceedings in Crime No.1270 of 2020 on the file of L.B.Nagar Police Station, Ranga Reddy District against the petitioner/ accused and for a consequential direction as to the Police to return the seized property. The petitioner is accused in the above said crime. The offences alleged against him are under Sections 272, 273 and 188 of IPC and Section 20(1) 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'). The petitioner also filed I.A.No.2 of 2020 for return of material and Maruthi Zuzuki Eeco vehicle bearing registration No.TS 07FP 1412, which was seized in the above said crime. 2. Heard Sri Srinivas Reddy Balakisti, learned counsel for the petitioner, and learned Assistant Public Prosecutor. Perused the entire material available on record. 3. The learned counsel for the petitioner would submit that the Assistant Sub-Inspector of Police is not having authority to lodge the present complaint, and the L.B. Nagar Police Station, is not having power to register a case in Crime No.1270 of 2020 for the offences under Sections 272, 273 and 188 of IPC and Section - 20 (1) of the COTP Act. He would further submit that the allegation against the petitioner is that he is selling the tobacco products to the customers illegally in order to gain wrongful profits. Thus, the accused has committed the aforesaid offences. The learned counsel by referring to the provisions of COTP Act, including 20 (1), would submit that the allegations made in the charge sheet do not attract the ingredients of the aforesaid provisions and, therefore, the aforesaid offences alleged against the petitioner are liable to be quashed. In support of the same, he has placed reliance on the judgment in Chidurala Shyamsubder v. State of Telangana , (Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018) rendered by the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh. Whereas, the learned Public Prosecutor has tried to distinguish the principle laid down in the said judgment to the facts of the present case. 4. Whereas, the learned Public Prosecutor has tried to distinguish the principle laid down in the said judgment to the facts of the present case. 4. Perused the judgment in Chidurala Shyamsubder (supra), wherein a learned Single Judge of the High Court following the guidelines laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335 , held that the police are incompetent to take cognizance of the offences punishable under Sections 54 and 59 (1) of the Food Safety and Standards Act, 2006 (for short 'FSS Act'), investigating into the offences along with other offences under the provisions of the Indian Penal Code, 1860. It was further held that filing charge sheet is a grave illegality, as the Food Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down under Sections - 41 and 42 of FSS Act. In the present case, the police have registered the crime for the offences under Sections 272, 273 and 188 of IPC. Therefore, the said proceedings in Crime No.1270 of 2020 against the petitioner herein are contrary to the principle laid down in Chidurala Shyamsubder (Supra) and, therefore, the same are liable to be quashed. 5. As far as Section - 20 (1) of the COTP Act is concerned, as stated above, the allegations against the petitioner is that he is selling the tobacco products to the customers illegally in order to gain wrongful profits. In view of the said allegation, it is apt to refer to Section - 20 (1) of the COTP Act for better appreciation of the case and to decide the issue in question, and the same is as under: " 20. Punishment for failure to give specified warning and nicotine and tar contents.- (1) Any person who produces or manufactures cigarettes or tobacco products, which do not contain, either on the package or on their label, the specified warning and the nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction, with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees. (2)........ " 6. (2)........ " 6. Thus, Section 20 of COTP Act deals with punishment for failure to give specified warning and nicotine and tar contents. As stated above, the allegation against the petitioner herein is that he purchases the tobacco products and sells them to customers at higher prices to gain wrongful profits. The petitioner is neither trader, nor supplier/distributor of cigarettes or any other tobacco products. There is no allegation in the charge sheet against the petitioner that he is carrying on the trade or commerce in contraband or any other tobacco products without label and specified warning on the said products. In view of the same, the contents of the charge sheet lacks the ingredients of Section - 20 (1) of the COTP Act. In the entire charge sheet, there is no allegation that the seized products do not contain the labels as well as statutory warning. Therefore, registering the crime for the said offence against the petitioner is also contrary to Section - 20 (1) of COTP Act. Thus, the offence under Section - 20 (1) of COTP Act is also liable to be quashed against the petitioners. 7. In view of the above discussion, the present Criminal Petition is allowed, and the proceedings in Crime No.1270 of 2020 on the file of L.B.Nagar Police Station, Ranga Reddy District, are hereby quashed against the petitioner - accused. 8. I.A. No.2 of 2020 is filed by the petitioner for return of material as well as Maruthi Zuzuki Eeco vehicle bearing registration No.TS 07FP 1412, which were seized in the above said crime. Since the proceedings in the aforesaid case are quashed against the petitioner in Crime No.1270 of 2020, the petitioner is at liberty to file appropriate application for return of seized property, including the vehicle, and the Police shall consider the same and return the seized property and the vehicle on proper identification and verification of ownership of seized property under due acknowledgment. Accordingly, I.A. No.2 of 2020 is closed. As a sequel, miscellaneous petitions pending, if any, in the criminal petition, shall stand closed.