State of Karnataka v. Hemareddyl at Paragraph No

2. Sri. S. Gopal, S/o not known Age not known, Occ. Police Officer, Miyapur Police Station, Serilingampally, Hyderabad - 500 Mg ...Respondents Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the Crime No. 164712024 under Sec 223 of BNS (188 IPC) & Sec 2O(2) ot COTP Act, pending on the file of PS Miyapur, Cyberabad Police Commissionerate Unit against the Petitioner/ Accused No. A t herein. l.A. NO: 2OF 2025 Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant interim stay of all further proceedings in the Crime No. 164712024 under Sec 223 of BNS (188 IPC) and Sec 20(2) of COTP Act, pending on the file of PS Miyapur, Cyberabad Police Commissionerate Unit against the Petitioner/ Accused No. 1 . CRIMINAL PETITION NO: 54 OF 2025 Between: Shaik Sahiq, S/o Shaik Chand Aged about 23 years, Occ. Manager & Hookah R/o. H.No. 2-253, Sai Nagai, Hafeezpet, Serilingampally, Mixing Boy, Rangareddy Dist' Hyderabad -500 049 - ...petitioner / Accused No 2 AND 1. The State of Telangana, Rep. by its Public Prosecutor, High Court Buildings, Hyderabad - 500 066

2. Sri. S. Gopal, S/o not known Age not known, Occ. Police Officer, Miyapur Police Station, Serilingam pattylHyderabad - 5OO 049 (De-Facto Corirp'iainant) ...Respondents Petition under Section 528 of BNSS praying that in the circumstances stated in lhe Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the Crime No. 164712024 under Sec 223 of BNS (188 lpC) and Sec 20(2) of COTP Act, pending on the file of PS Miyapur, Cyberabad potice Commissionerate Unit against the Petitioner/ Accused No. A2 herein. l.A. NO: 2OF 2025 Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of crounds of Criminal Petition, the High Court may be pleased to grant interim stay of all further proceedings in the Crime No.1641t2024 under Sec 223 of BNS (188 IPC) & Sec 20(2) of COTp Act, pending on the fite of PS tvliyapur, Cyberabad Police Commissionerate Unit against the petitioner/ Accused No. 2. These Petitions coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petitions and upon hearing the arguments of Sri Syed Ahmed, Advocate for the Petitioner and Sri Jithender Rao Veeramalla, Additional public Prosecutor on behalf of the Respondent No.1 (in Both the Cases). The Court made the following Common Order : THE HONOURABLE SMT. JUSTICE JUWADISRIDEVI CR!MINAL PETITI ON Nos, 41&54ot2025 coMMON ORDER As these Criminal Petitions are arising out of same crime, they are being disposed of by way of this Common Order.

02. These Criminal Petitions are filed by the petitioners- accused Nos.1 and 2 to quash the proceedings against them in Crime No.'1647 of 2024 of the Station House Officer, Miyapur Police Station, Cyberabad, registered for the offences under Sections 223 of BNS (Section 188 of IPC) and 20(2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'corPA').

03. Heard Sri Syed Ahmed, learned counsel for the petitioners-accused Nos.1 and 2 and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for the State.

04. Learned counsel appearing for petitioners submits that the petitioners are innocent and have been falsely implicated in the case. Section 195(1)(a) of Cr.P.C. bars taking cognizance of the offence under Section 223 of BNS, except on the complaint / 2 in writing of the public servant concerned or of some other public seryant to whom he is administratively subordinate. ln the present case, the complaint was lodged by the de facto complainant. who is not a competent person, the present FIR is not maintainabre and the same is riabre to be quashed. He further submits that the offence under Section 2O(2) of the COTpA, shall be deemed to have been committed under Section 223 of BNS. When Section 223 of BNS warrants filing of a private complaint, the same restriction applies to Section 2O(Z) of the COTpA also. Since the prime offence under Section 223 of BNS is barred by Section 195(1Xa) of Cr.p.C., the whole proceedings are without jurisdiction. Hence, he prayed to quash the criminal proceedings against the petitioners-accused Nos..l and 2.

05. On the other hand, learned Additional public Prosecutor for the State submitted that the petitioners have arso been charged with the offence other than 223 of BNS and the truth or otherwise of the allegations levelled against the petitioners can only be known after conducting full_fledged trial, and hence, he prayed to dismiss these petitions.

06. ln view of the facts and circumstances of the case, it is relevant to note that the Honourable Supreme Court of India in 3 State of Karnataka v. Hemareddyl , at Paragraph No.8, it is held as follows: "We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1) (b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld".

07. For the sake of convenience, Section 223 of BNS and Section '195 of Cr.P.C. are extracted hereunder:- Secfion 223 of BNS: Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in hls possesslon or under his management, dlsobeys such direction,- (a) shall, if such disobedience causes or tends to cause obstruction, annoyance 'ntR't98t sc't+tz 4 or tnJury, or risk of obstruction, annoyance or injury, to any person lawfully emptoyed, be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand and five hundred rupites, or with both; (b) and where such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a iot or affray, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. Explanation.-tt is not necessary that the offender should intend to produce harm, or contemplate hls disobedience as likety to produce harm lt is sufficient that he knows of the order which he disobeys, and that hls disobedience produces, or is likely to produce, harm. Secfion 195 of Cr.P.C: prosecution for contempt of lavvful authority of pubtic seryanfs, for offences against public justice and for offences relating to documents given in evidence. (j)No Court shall take cognizance- (A)Oof any offence punishabte under sections 172 to 188 (both inclusive) of the tndian penal Code (js of 1860), or t, 5 (ii)of any abetment of , or attempt to commit, such offence, or (iii)of any criminal conspiracy to commit such offence, except on the complaint in witing of the public servant concerned or other public servant to whom he is administratively subordinate; (p)(i)of any offence punishable under any of the foltowing sectlons of the lndian Penal Code (45 ot 1860), namely, sections 193 to 196 (both inctusive), 199, 200, 205 to 21 1 (both inclusive) and 228, when such offence is alleged to have been commifted in, or in relation to, any proceeding in any Court, or (ii)of any offence described in section 463' or punishabte under section 471, section 475 or secllon 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Coutt, or (iii)of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),[except on the complaint in writing of that Court or by such officer of the Coutl as that Couft may authorise in writing in this behalf, or of some other Court to which that Courl is subordinate.l [Substituted by Act 2 of 2006, Secfion 3 for "except on the complaint in writing 6 of that Court, of of some other Coutt to which that Court is subordinate,, (w e.f. 16_4_2006).1

08. Having heard both sides and perused the material on record, it is evident that the proceedings against the petitioners for the offence under Section 223 of BNS have been initiated, basing on the complaint made by lhe de_facto complainant, who is a Police Officer, but not on the basis of complaint in writing of the public servant concerned, as is required under Section 195(1)(a) of Cr p C Therefore, the proceedings against the petitioners for the offence under Section 223 of BNS are riabre to be quashed.

09. lnsofar as other offences i.e., Sectio n 2O(2) of COTPA, the allegations against the petitioners are that he is selling the tobacco products to the customers illegally in order to gain wrongful profits. ln view of the said allegations, it is apt to refer to Section - 20 (2) of the COTp Act for better appreciation of the case and to decide the issue in question,and the same is as "20(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label. the specified warning and the \ 7 nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or' subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees."

10. Thus, the 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 petitioners is that they purchase the tobacco products and sell them to customers to gain wrongful profits. The petitioners are neither trader, nor supplier/distributor of cigarettes or any other tobacco products. There is no allegation in the complaint against the petitioners that they are carrying on the trade or commence in contraband or any other tobacco products without label and specified warning on the said products. ln view of the same, the contents of the complaint lacks the ingredients of Section 2O(2) of the COTP Act. ln the entire complaint, 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 alleged t I B offence against the petitioners is also contrary to Section _ 20 (2) of COTP Act Thus. the offence under Section _ 20 (2) of COTp Act is also liable to be quashed against the petitioners. Even as per the Judgment of Honourabre Supreme court of rndia in Hemareddy's case (supra), it is clear that if the offences formed part of the same transaction of the offences contemplated under Section 195 of Cr.p.C., it is not possible to split up and hold the prosecution of the petitioners. Hence, the FIR culminating in taking cognizance of the aforesaid offences against the petitioners stands vitiated and the continuation of criminal proceedings against the petitioners amounts to abuse of process of law.

11. Accordingly, these Criminal petitions are allowed and the proceedings against the petitioners-accused Nos..r and 2 in Crime No. 1647 of 2024 of the Station House Officer, Miyapur Police Station, Cyberabad, are hereby quashed. As a sequel, miscellaneous applications, if any pending, shall stand closed. __-_J_ I //TRUE COPY// Sd/. T. JAYASREE ASSISTANT REGISTRAR SECTION OFFICER To,

1. The VIll Additional Judicial Magistrate of First Class' at Kukatpally' Cyberabad i. fn" Stution House Officer, Miyipur PS' Cyberabad District e. f*o CC" to the Public Prosecutor' High Court for the State of Telangana' a. One CC to Sri Syed Ahmed, Advocate [OPUC] 5. Two CD CoPies HYderabad [OUT] VfuDL , .:::::a.:::-:' -e.' HIGH COURT DATED:0410212025 COMMON ORDER CRLP.Nos.41 & 54 of 2025 ( f a o \\g STATC 1 0I r,l1 2[25 t Drc / 14 \ c "i ALLOWING BOTH THE GRLPs b h/ // /.1 , I t I ! I