K.GALESWARA RAO v. STATE OF AP

Counsel for the Respondents: PUBLIC PROSECUTOR (AP) The Court made the following order: ORDER: Heard the learned counsel for the petitioner and the learned Assistant Public Prosecutor.

2. Originally, the Joint Collector Cum Adjudicating Officer, Guntur District passed an order dated 16.11.2017 in Rc.No.1024/2017-L.2 under Section 96 of the Food Safety and Standards Act, 2006 (for brevity ‘the Act’) and imposed a penalty of Rs.2,00,000/- on the petitioner.

3. The petitioner has preferred an appeal before the learned Principal District and Sessions Judge, Guntur vide Crl.A.No.100 of 2018. The learned Sessions Judge vide Judgment dated 30.01.2019 reduced the quantum of penalty from Rs.2,00,000/- to Rs.70,000/-.

4. Sri S. Satyanarayana Moorthy, the learned counsel for the petitioner has brought to the notice of this Court, the order dated 28.06.2018 in Crl.P.Nos.81, 1083, and 6008 of 2018 wherein a learned Single Judge of this Court, observed by quoting several authorities that chewing tobacco and khaini are not the food within the definition of Section 3(j) of ‘the Act.,’ and the manufacture, sale or exposing for sale of tobacco etc., is governed by the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (for brevity ‘the COTPA Act’), but not by ‘the Act.,’ and also the provisions of the Indian Penal Code, 1860 (for brevity ‘the I.P.C’).

5. In Dwarapudi Sivarama Reddy v. Union of India1 a decision referred by the learned Assistant Public Prosecutor, wherein at para Nos.5, 26, and 34 it is held as under: “5…The judgment in Godawat Pan Masala Products I.P. LTD. v. Union of India2, has been referred, wherein the Hon'ble Supreme Court has held that the power of banning an article of food or an article used as ingredient of food on the ground that it is injurious to health, belongs appropriately to the Central Government and the State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article whether used as an article or adjunct thereto or not used as food and such power can only arise as a result of wider policy decision and emanates from Parliamentary Legislation by exercise of powers by the Central Government by framing rules under Section 23 of the COTPA, 2003. The Supreme Court eventually declared the notification issued under the provisions of the Prevention of Food Adulteration Act, 1954 as ultra vires the Act. Similarly, when criminal cases were registered under various provisions of Indian Penal Code and FSSA, 2006 in view of ban on Tobacco products through a notification in the year 2018, Criminal Petition No.3731 of 2018 and batch came to be filed and vide order dated 27.08.2018, the FIRs., and charge-sheets were quashed on the reason that Police has no power to register cases and the said order was not appealed against and has, thus, attained finality. Similar quash petitions were also allowed vide Criminal Petition No.5421 of 2019 and batch by order dated 18.12.2019, holding that offences under the COTPA, 2003 can only be launched if the Police find that Sections 5, 6, 7 and 10 are not complied with and against this judgment also, State has not carried the matter to Supreme Court. Similar is the case with Criminal Petition No.5103 of 2020 and batch decided on 05.03.2020. Reference is also made to the judgments rendered by various High Courts on the subject. 26…It is also to be noticed that the FSSA, 2006 is a regulatory statute empowering the authority to regulate the manufacture, storage, distribution, sale and import of food products for human consumption. Such power does not authorize the authorities to prohibit the manufacture, etc. of Tobacco or Tobacco products, because the trade in Tobacco is not impermissible in India. 34… In view of the above discussion, the legal position is abundantly clear that the COTPA, 2003 is a special Act specifically dealing with Tobacco and Tobacco products by including Pan Masala or any chewing material having Tobacco as one of its ingredients by whatever name called. The FSSA, 2006 being a general Act, provides that it is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. Thus, the FSSA, 2006 deals with food as defined under Section 3(j) of the said Act, whereas Tobacco and Tobacco products are covered under the COPTA, 2003. Since Godawat Pan Masala Products I.P. Ltd. (supra) still holds the field, Pan Masala or Gutka containing Tobacco, cannot be considered to be "food" and the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor has any jurisdiction to issue the impugned notification.” 1 2023 SCC Online AP 444 2 (2004) 7 SCC 68

6. In view of the constant view taken by this Court in several authorities referred above, the judgment of the learned Principal District and Sessions Judge, Guntur, is liable to be interfered and set aside. Therefore, the judgment dated 30.01.2019 in Crl.A.No.100 of 2018 on the file of the learned Principal District and Sessions Judge, Guntur and also orders passed by the Joint Collector Cum Adjudication Officer, Guntur, Guntur District vide Rc.No.1024/2017-L.2 dated 16.11.2027 are set aside.

7. Accordingly, the Criminal Revision Case is disposed of. There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed. Dt: 06.08.2026 JLSR _________________________ Dr. Y. LAKSHMANA RAO, J THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE No: 210 of 2019

06.08.2026 133 JLSR