Srinivas Kota v. Mr.Jithendar Rao Veeramalla

2. Heard Mr. M.A.K. Mukheed, Mr. Gajanand Chakrar arthl ' Mr. K. Surender, Mr. Praveen Kumar Veerjala, Ms. P, Radhika' 5 KL'J Crt.P. Na.t5. of 2020 & bdtch Mr. Srinivas Reddy Balakisti, Ms. C' Sunitha Kumari' lr' : Kondadi Ajay Kumar. Mr'. S M. Subhan, Ms N Arthi, Mr' Y 3 Lla Murali' Mr. Boggula Raju, N{r. S. Chandrasekhar, Mr' V ) aduknshna Sainath. lean.retl counscl appearing on behalf of respecti' ( petitioners anci lcarned PLrblic Prosecutor appeanng on behalf of le pondents - Srate

3. The question involved in all the above matters js rne and the same and, therefore, the same are disposed of by way of t is common order.

4. The main allegations against the petitionerc rccused are that they were transporting, possessing, storing, purchasing the banned products vb' lobacco / tambr'l elling and t I gttka I khain\ I zarda I pan masala respectively. The offences all :ged against the petitioners are under Sections - 188,270,269,271':"' 2,213,328, 336 & 420 read with 34 and 5l 1 of the Indian Penal Ctrt short'lPC'); Sections - 20 (l), 20 (2) and 5 read with 7('l' the Cigarcttes and Other Tobacco Products (P-r :, i 860 (for and 7 (3) of :)ibition of Advertrsement and Regulation of Trade and Commetc: Production, Supply and Distribution) Act, 2003 (for short 'COTP A' t ); Sections - 58 and 59 of the Food Satery and Standards Act, 2006 (fi r short 'FSS 1\ct'), Sectjon - 3 of the Epidemic Diseases Act, 189? l rl short 'ED Act') and Section - 5l (b) of the Disaster Management I rr, 2005 (for short DS Act) resPectivelY. 6 KL] Crt t' \'a 152 af )t))0 & batdt

5. The respective learned counsel appearing on behalf of rhe petitioners in the above criminal petitions would submit thar the contents of complaint / charge sheet lacks the ingredients of the offences alleged against the accused. For the offences under the provisions of FSS Act, only Food Safety Officer is having power to initiate criminal proceedings against accused and the police are not having any power to register a case for the offences under the provisions of FS S Act. There is no inducement by the petitioners and, therefore, offence under Section - 420 of IPC does not arise. According to them, the contents of complaint / charge sheet are also lacking the ingredients of the offences under Sections -269,270,271, 272,273,328 and 336 ofIPC. i) According to them, there is no violation of Sections - 20 (l), 20 (2) and 5 read wirh 7 (2) and 7 (3) of the COTP Acr. The Investigating Officers / Complainants without following the proccduro laid down under the Code of Criminal Procedure, 1973 (for shorr 'Cr.P,C.'), have registered the cases lor the offience under Sectron , 188 of IPC and laid charge sheet against the accused. Necessary ingredients to attract the provisions of Section - 3 of the ED Acr and Section - 5l (b) of the DM Act are lacking in the complaint / charge sheet. ii) With the above said submissions, the respective leamed counsel sought to quash the proceedings in the aforesaid crimes / calendar cases. 7 KL,J ': af202t) & bdtch Crt P. ^.

6. On the other hand, leamed Public Prosecutor refi rlng to the principle laid down in the State of Maharashtra v. Sa11 ed Eassan Sayyed Subhan' by the Hon'ble Suprane Court anc n Ganesh Pandurang Jadhao v. The State of Maharashtra2 z -rd Anand Ramdhani Chaurasia v, The State of Maharashtra3 by t re Bombay High Court would submit that police are having powe r to register cases under various provisions of IPC, COTP Act, ED 1 :t and DM Act. There is no irregularity in registering crimes. sei;i g material includins the vehicles and laying charge sheet againr t respective accused Ln the atbresaid crimes / calendar cases. Accor.l ng to him, tlte aeerticti \\crc transpuflrng. possessing. storing. ' purchasrng thc banned products vz., tobacco / tambllr :lfing and I gutka / khaini I zarda ,/ pan masala respectively. According t him, the accused have to face either investigation or trial and 1 rove their innocence, and instead of doing so, they have filed t re present criminal petitions under Section - 482 of Cr.P.C. whjc r cannot be considered at this stage. i) With the above said submissions, learned Publir: )rosecutor .sought to dismiss the.above criminal petitions. 7, In view of the above rival submissions, it is i lposite to extract the relevant provisions of IPC, COTP Act, FSS llr t, ED Act and DM Act. which are as under. ' 2r)t8 AIR (sc) 5l4s '. 2016 cn. L.J.21ol I 20t9 scc ooline Bom 1857 8 KL,J C .P. lta 15) of 2020 & bat.h RELEVANT PRO\TISIONS UNDER IPC "lEE. Disobedience to order duly promulgated by Pubuc servaDt-Whoevor, knowing that, by an orrder promulgated by a public servant lawfully empowered to promulgate such order' he is directed to abstain ftom a certain act, or to take cortain order with certain property in his possession or under his rnanagement, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obsnuction' annoyance or injury' to any person lawfully employed, be punished with simple imp'isonment for a term which may extend to one moDth or with fine which may cxtend to two hundred rupees' or with both; and if such disobedience causes or trends to cause danger to human life' health or safety, or causes or teods to cause a riot or affray' shall be punished with impnsonment of eLrher description for a tetm which may extend to six months' or with fine rvhich nla! cxten(i to one thousand ruPees, or with both' Explanrtion.-It is not necessary that the oflfender should intend to produce harm, or contemplate his disobedience as Iikely to produce harm lt is sufficient that he knows of the order which he disobeys, and that his disobedience produces' or is Iikely to produce, harm. I[ustration Aa order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not Pass down a certain steet' A knowingty disobeys the order' and thereby causes datrger of riot' . A has commiued the offence defined in this section " "269. Negligent act Ukely to spread infection of disease unlawfully or negligertly does dongerous to life any act which is, anrl which he knows or has rcason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either descriplion for a term which may extend to six months, or with fine or with -Whoever both." "270. Malignant act likely to spread infection of discase dangerous to life.-Whoever malignantly does any act which 9 KL,J t of2A:A & bdtch Ctl.P ^.t rs. and which he knows or has reason to believe to be, lr( l)'to .iprcad lhr inlection of any disease dangerous to lifc, ' r I be punished with inlprisonment of either descnption fo| r term * hrch may extend to two years, or with fine, or with both ' ''271, Disobedicncc to quar{ntine rule. Whoever kr. r rlirobey's any rule made and promulgated by the Goverrn: t for pulrrng any velscl into a state ofquarantine. or for regula r I the rnlercoLlr\i ol vessels in a state of quarantine with the . rr 'e ol with othcr vessels, or for regulating the intercourse b)r places uhere an infectious disease prevails and othe- ) tce5, shall be punished with imprisonmcnt of cithcr descriptLc r term which may extcnd to six months, or with fine, rr !r'ith both." "272. Adulteration of food or drink intendcd for rr Whocvcr adulterates any article of food or drink, so as tr e.- such article noxious as food or drink, intending to se I ;uch article as food or drink, or knowing it to be likely that lh,i rvill be sold as food or drink, shall be punishec imprisonmenr of either description for a term which ma., :: :end to six months, or with fine which may extcnd to one th.,r rupees. or rv ith both." ''27-1. SBIc of norious food or drink.-Whoever sells. L)r ( or c\posc\ Ii)r sale, as food or drink, any article which hiLi r.Jndcrcd or has bccome noxious. or is in a state unfit for l. rirink. kno.rrng or having rcason to believe that the samc i rour as food or dnnk, shall be punished with imprisonn c 'Iers rLthrr d.\c11ptron lbr il term which lnay extend to six n1(,ltl r',rth tine rrhrclt nlay cxtend lo one thousand rupees, ! i. or r ith both.' "328. Causing hurt by meBns of poison, etc., with iDt] t to commit sn offence.-Whoever administers to or causcs t , be taken by any person any poison or any stuperying, intoxr: ting or unwholesome drug, or othcr thing with intent to causc lrr 1to such person, or with intent to commit or to facilila e the commission ofan offcnce or knowing it to be likely that te will thereby causc hurt, shall be punished with imprisonm:r of l0 KL.J Crl.P. No.l52 of2020 & batch either description for a term which may extend to ten years, and shall also be Iiable to fine." "336. Act endangering life or personal safery of others. Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others. shall be punished with impdsonment of either description fol a remt rvhich ntay extend to three months, or with fine which may extcnd to two hundred and fi fty rupees, or with both." "420. Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any prcperty to any person, or to make, alter or deslroy the whole or arly part of a valuable security, or anything which is signed or sealed, aod which is capable of beiog converted into a valuable security, shall be punished with imprisoDment of either description for a term which may extend to seven yea6, and shall also be liable to fine," "34. Acts dotre by several persoN iD furtherance of commoD inteution.-When a criminal act is done by sevenl ponons in furtherance of tho common intention of all, each ofsuch persons is liable for that act in the same manner as if it were done by him alone." "5u. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.-Whoever attempts to commit an offence punishable by this Code with imprisonmenr lor life or imprisonmenl or to cause such an offence ro be committed, and in such attempt does any act towards rhe commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempr, be punished with imprisonment of any description provided for the offence, lor a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprison- ment provided for that offence, or with such fine as is provided for the offence, or with both." l1 KL,J CII.P Nc I 2 of2020 &botch RELEVANT PROVISIO NS IINT) ER COTP ACT "5. Prohibition of advertisement of cigarettes and tobacco products.{l) No person engaged in, or purpcn jd to be engaged in the production, supply or distribution ofciS a or any other tobacco products shall advenise and no p having control over a medium shall cause to be ad\e cigarettes or any other tobacco products through that nl( and no person shall take pan in any advenisement , directly or indirectly suggests or promotes the 1rs consumplion of cigarettes or any other tobacco products. (l) No pcrson. lbr any direct or indirect pecuniary ',r s hall lefit, :or )ther (a) display. cause to display, or permit or authorise to li eny advenisement of cigareltes or any other tobacco prod r( (b) sell or cause to sell, or permit or authorise to sell n i vidco tape containrng advenisement of cigarettes or an' tobacco product; or (c) distribute, cause to distribute, or permil o. authc-1 distribute !o the public any leaflet. hand-bill or documenl \ is or whrch contains an advertisement of cigarettes or an r tobacco product; or (d) erect, exhibit, fix or retain upon or over any land, brr ling, \,,all, hoarding, fmme, post or structure or upon or in an.,- "t ricle or shall display in any manner whatsoever in any pla:r any advertisement of cigarettes or any other tobacco product: )ther Provided that this sub-section shall not apply in r: to- (a) an adyertisement of cigareftes or any other tobacco tr in or on a package containing cigarettes or any other t i product; (b) advertisement of cigarettes or any other tobacco pr which is displayed at the entrance or inside a warehoure shop wherE cigarettes and any other tobacco productr offered for distribution or sale. (3) No person, shall, under a contract or otherwise pror.c e or agree to promote the use or consumption of-- (a) cigarettes or any other tobacco product; or (b) any trade mark or brand name of cigarettes or any ther tobacco product in exchange for a sponsorship, gift, p i : or scholarship given or agreed to be given by another person ' ''20. PunishmcDt for failure to give specilied warning and nicotine and tar colte[ts - (l)Any person who produces or manufacturcs cigarertr i or tobacco products. which do not contain, eithcr on the pael a e or t2 Gl P ,\o l5i ol 2010 & batch on their label, the specrfied waming and the nicorine and tar cortents, shall in the case of first conviction be punishable with imprisonment for a term which may extend to two years, or wrth fine which may extend to five thousand rupoes, or with both, and for the second or subsequcnt conviction, with imprisonmcnt for a term which rnay extend to five ycars and with fitre which may extend !o ien thousand rupees. (2) Aoy person who sells or distributcs cigarEttcs or tobacco products which do not contain either on the package or on thcir label, the specified waming and the nicotine and tar conten6 shall in the case of first conviction be punishable with imprisor[ngnt for a term, which may extend to one year, or with fine which may cxtend to onc thousand rupees, or with both, and, for the second or subsequent conviction. with imprisonment for a term which may extend to t*o years and with 6ne which may extend to three thousand rupees." "7, Restrictions on lrade and commerce in, and production, suppl-v and distribution of cigarctles and othcr tobacco products.- (l) No person shall, directly or indirectly, produce, supply or distribute 6 cigare(es or any other lobacco products unless every package of crgarettes or any other tobacco products produced, supplied or distributed by him bean thereon, or on Ils label such specified waming including a pictorial waming as may be prescribed. (2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarcttes or any oher lobacco products sold, supplied or distributed by him bears thereon, or on is label, the spccified waming, (3) No penon shall import cigarettcs or any other tobacco produc6 for distribution or supply for a valuable consideration or for sale in India unless evcry package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specificd waming. (4) The specified warning shall appear on not less than one of the largcst panels of the package in which cigarettes or any other t3 KL,J C P'., 1'of20:A&batch loLracco products have been packed for distribution. .! sLrpnlv lbr a valuable consideration 15) \o pcr\on shall, dlrectly or indirectly, produce. su: I dlstnbute clgarettes or any other tobacco products unles. package of cigarenes or any other tobacco products pr( d Lced, supplied or distribured by him indicates thereon, or on il, rbel, the nicotine and tar contents on each cigarette or as the cai( be on other tobacco products along with the ma( permissible limits thcrcof: Provided thal the nicotinc ,r I tar contents shall not exceed the maximum permissibls qu ther€ofas may bc prescribed by rules made under this Ac .' RELEVANT PROVISIONS T'ND F.S.S. Act "58. Penaltv for contraventious for lvhich Do specilic f e rslfy is provided.-Whoever contravenes any provisions of this I ct or the rules or regulations made thercunder, for thc contra.( rtion of which no penalry has been separately provided r this Chapter, shall be liable to a penalry which may extend t, two lakh rupees.' ''59. Pu[ishment for unsafe food.-Any person who, !, )lher by hrmself or b; any other person on his behalfl manulrr Lrres lbr sale or storcs or sells or distributes or imports any ar i Le of 1'ood lor huntan consunlption which is unsafe, .1..r be punrrhablc.- (r)rvhere such failure or contravention does not rcsuh in ir ;ury, \\rth rmpn\onment fora term which may extend to sijt ll nths a tl also wirh fine which may extend ro one lakh rupees: (ii) where such failure or contravention rcsuhs in a non-grir rous injury. with imprisonmenr for a term which may extend r one vear and also with fine which may cxtend to threc lakh ru.)( )s; (iii) where such failurc or contravention results in a gri, vous injury, with imprisonmcnt for a term which may extend ) six years and also with fine which may extend to fivc lakh rulx :s; (iv) wherc such failurc or contravcntion results in deatlL with imprisonment for a term which shatl not be less than )ven years but which may extend to imprisonmcnt for life ar c also with fine which shall not bc lcss than ten lakh rupecs." l4 KL,J Cn.P. No.152 of 2020 & brch RELEVANT PROIISION UNDERE.D. ACT: "3. Penalty. Any person disobeying any regulatron or order made under this Act shall be deemed to have committed an offence punishabie uoder section 188 of thc Indian Penal Code (45 of 1860 )." RELEVANT PROVISION UNDER D.M, ACT "51. Punishment for obstruction, erc. (l) Whoever, without reasonable cause- (l) Whoever, wrthout reasonable cause-" (a) obstructs any oflicer or employee of the Centml Covemment or the State Govemment, or a person authonsed by the National Authority or Shte Authonty or District Authoriry in the discharge of his functions under this Act; or (b) refuses to comply with any direction given by or on behalf of the Central Govemment or the State Govemment or the National Executive Committee or the State Executive Comminee or thc District Authority under this Act, shall on conviction be punishable with imprisonmcnt for a term which may extend to one year or with fine, or with both, and if such obstruation or refrrsal to comply with directio$ results in Ioss of Iives or imminent danger thereof, shall on conviction bc punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 !o 58) seeks to lay down wbat will constih.rto an offence in tenns of obstuction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuancc of false waming, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences."

8. The [s involved in the present petitions is no more res integra. A leamed Single Judge of the High Court of Judicature at Hyderabad for the State ofTelangana and the State ol Ar.rdhra Pradeslr in Chidurala Shyamsubder v. State of Telanganat had an occasion to deal with the issues involved in the prcsent cnminal petrrions. After referring to various provisions of IPC, FSS Act, COTP Act and also the pnnciple laid down by the Apex Coun and other High Courts n. crl.P.Nol?ll of 20l8 &barch,decidedon27.08.20lE l5 KL,J C.l-P- ,\,., 2 of2a20 & batch in several judgments, the leamed Single Judge had fi:an.r I the issues, which are as under: "l) Whelher the respondent/ Sub-lnspector of Police, is ccn fetenr to investigate into the offence punishable under Sections 5,1 a r( 59(1) of FSS Act? 2) \\'hc(her thc petirioners rn all rhe petitions are found conr n act rvrth malicious intenrion, with knowledge and reason tc, l,t such act likelr ro spread the infectron ofany disease dangcr I r\nJ .rhcrhcr rhe pcritioners selling or offering or exposiig t fbod or drrnk. ally anicle which has been rendered or h.r no\rL)ui er is rn a statc unfit for food or drink or reason to ,r lh( \rrntc li noxtou\j as fbod or dnnkl If so, are they lr.l pro.:ceded for the offence punishable under Sections :1) i ng an)' ieve that s to lrfe') r sale as become ieve that lc to be and 173 IP( . r"

9. After an elaborate discussion and on cor s deration of various aspects, the leamed Single Judge has held tlLr . the police cannot take cognizance of the offence, to investigate I lto and file charge sheet against the accused therein for the offen: punishable under Sections - 54 and 59 (l) of FSS Act, as tlr( r' were nor empowered under the said Act to launch the prosecuri n, but onl1. Food Safety Officer appointed by the Govemment alon( ; competent to launch prosecurion for those two offences. With the s id findings. the leamed Single Judge has quashed the proceedin 1 where the oflences are under Sections - 54 and 59 ofFSS Acr iri ated bv the po lic e I 0. In the very same judgment, the leamed Single J rdge I'urthel. hcld that chewing robacco and khaini are nor rhe ,focd within the detinition ot' Sectron - 3O of the FSS Act and the manrLl r, ture, sale or 16 Kt ) C, I t' \r | 5: o[ 2420 & bat.h exposing for sale of tobacco etc., is govcmed by the provisions of COTP Act, but not by FSS Act and so also rhe provisions ollPC, The respondents - police are incompetent to investigate the offence punishable under Sections - 54 and 59 (1) of the FSS Act and allegations in the charge sheet coupled with the statements do not disclose the commission of the offence punishable utrder Section - 273 of IPC since transportation of noxious food is not included under Section - 273 of lPC. The act done by the accused therein i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, hansportation ol khaini ol chcwing tobacco by itself is not an offence under Section - 270 of lPC. Pan Masala is not a tobacco product to fall within the purview ol COTP Act. Thereforc. rhc provisions of the COTP Act have no application, thereby registration of crime on the ground of violation of Sections - 7 (l) (2) (3) (5) and Section - 26 of COTP Act is an illegatity. The leamed Single Judge further held that regiskation of cases for the offence under Section - 20 (2) read with 7 (2) of COTP Act is illegal. With the ,uid find,ogr, the leamed Single Judge has quashed the crimes and calendar cases in the said judgment. 1'.l I l. In Sri Jaganath Enterprises Eluru Vasadhi fripati Rao \. The State of Andhra Pradeshs. a leamed Single JuJ ; of the High Court of Andhra Pradesh at Amaralti had also an oc,:i lion to deal with the said issue. After referring to the contentions of t e respectiYe parties therein, various provisions of IPC, FSS Act, CC IP Act and relying on the principle laid down in Anand Ramdhani Shaurasia3, Joseph Kurian v. State of Kerala6, Sayyed Has an SalTed Subhant, 1\{/s. Pepsico India Holdings (Prt) Ltd., v. S t rte of U.P.7, Sanjay Anjay Stores v. Union of Indias, Boop Sirrr h Tyagi v. Statee, State of Haryana v. Bhajan Lall0 anrl Chidurala Shyamsubdera. the learned Single Judge has quashed the FIRs i Calendar Cases. The leamed Single Judge referring tr, he law laid dorvu rn Chidurala Shyamsubdera held that deslri e the said authontative pronouncement of law, status quo continl e . The said judgrnent atrarned linaliw. Even then, the police are reri rering cases against accused on the very same allegations for the ver),same offences, i) Referring to the provisions of Sections - 153, t 8, 269,270, 271, 272, 273, 284, 328, 353 of IPC, the leamed h dge in Sri Jaganath Enterprisess held that the offences registere . under the said Sections are not maintainable. It further held that th provisions of the COTP Act can only be pressed into service i:r the limited 2020 (l) ALT(Crl.) 215 (APHC) t995 (t) SCr 211 2011 (2) Crimes 250 2017 SCC Online Cal 16321 2002cd.L.r.2E72 I992 Supp ( l) SCC 335 ri, t8 KL.J Cr| P. No- 15 2 of 2020 & batch circumstancos only where there is violation ofSections - 4,5,6,'1 and10 of the COTP Act. By referring to the principle laid down by the Apex Court in Bhajan Latlo and IWs. Pepsico India Holdings (Pvt) Ltd.7, the leamed Singte Judge has quashed the proceedings in various crimes / calendar cases.

12. Another Ieamed Single Judge of the High Court of Andhra Pradesh at Amaravati in V. Nageswara Rao v, State of Andhra Pradeshrr had also an occasion to deal u'ith the said issue and agreed with the principle lard down in Chidurala Shyamsubder{.

13. In Salyed Hassan Sayyed Subhanr, the Apex Court while dealing with Iegality of the order passed by the Bombay High Court in a batch of criminal writ petitions and criminal applications, which were filed challenging the registration of FIRs for the offences under Sections - 188,272,273 aad.328 ofIPC and Sections - 26 and 30 of the FSS Act where there is an allegatioo of tansportation ,nd sale of Cutka / Pan Masala etc., held that the judement of Bombay High Court is contrary to the provisions ofthe Act and law Iaid down by it. With the said finding, the Apex Court remitted the matter to the Bombay High Coun for fresh consideration on the issue that whether the aforesaid offences are made out in the FlRs, u'hrch are subject mafter of the cases pending before the Bombay High Court. rr. 2020 Supreme (AP) 34t l9 KL,J C,I-P Nc,t. .J-202A & batch

14. In view of the authoritative pronouncement cf [aw in the afbresaid judgmcnts, as discussed above, coming to the f cts of the cascs on hand. the allegations against the accused in resf3 rive cases are transl)ortation. posscssion, storage, sale and purchas,r tI banned prr,ducrs |r-- . tol)i)cco ,, rambaku / gutka / khaini / zard.a 1rn masala ctc. rcspectr\el\ In Chidurala Shvamsubderr, the lear: ed Single obsclvcd rhut transportarion of chewing tobacco or khl rr or pan masala do nor constitute an oft'ence punishable under Sect c t - 2l0 of IPC and that manr:facturing ofpan masala is not includecl r Section _ 273 of IPC and, therefore, the same is not an offence sinc ) .t is not a noxious food. The leamed Single Judge has further obser ed in the said judgment which is as under: "....The act done by the petitioners i.e., transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of transportation and if those products are consumed bv human being, it would cenainly cause damage lo rhc healrll. Therefore, rransportation of khaini or cheu.ing tobacco is not by irselI is not an otl'ence under Section - 2?0 of [pC and it woulcl tirll u irhin Section 270 of IpC..'

15. Ssction - 272 of IpC makes punishable an off: ce by' a person. who adukerates any anicle of food or drink. There bre, the said scction rvould only come into play if food or drink is a.h There is no definition of ,adulteration, in IpC. The defir 'adulterant' is found in the provisions of the FSS Act. Sectio Iterated. ition of r-3(1) 20 KI,.J C,t P i\o 152 of:0)0 &batch (a) of the FSS Act deals with 'adulterant' which means a material which could make the'food'unsale or sub-standard or mis-branded. According to Section - 272 of IPC, if a material is used to rnake thc food unsafe/sub-standard or mis-branded, then only the offencc wou]d be attracted. Whereas, as discussed supra, the allegation in the present batch of cases is with regard to transportation, possession, storage, sale and purchase eflannsd products v,2., tobacco / tambaku I gttka / khaini / zarda / pan masala etc., respectively. Therefore, according to this Court, the said allegation does not fall within the ambit of Section - 272 of IPC. Therefore, I agree with the principle laid down by the learned Single Judges of the High Court of Andhra Pradesh in Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V, Nageswara Raoll,

16. In Joseph Kurian6, the Hon'ble Supreme Court hcld rhat for Section - 2'72IPC to be attracted, the following should be present. (l) That the article involved was lood and drink mcant to bc consumed by live persons; (2) that the accused adulterated it and the adulteration rendered it noxious as a 'food or dnnk'; (3) that the accused knew at the time of adulteration that he would sell the article as food or drink and knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court clearly held that the offence is completed on the htroduction of the adulterant. 'Adulterant' would mean that a material which is mixed to make the 'food' unsafe or drink unsafe. In the preseot case on hand, tobacco is not a food or 2l KL,J drink and what is stated to be mixed in it is not clearlv : tablished by any cogent material as an'adulterant' for the offence u: ,er Section - 272IPC tobe pressed into service.

17. As far as Section - 328 of IPC is concernerl in the same judgment it was held as follows "10. In order to prove offence under Section 328 the prcs cution is required to prove that the substance in question was a poix .r. or any stuperying, intoxicating or unwholesome drug etc, thar t1 accused adrninistered the substance to the complainant or . e rsed the cornplainant to take such substance, that he did so with inr, r to cause hurr or knowing ir to be likely I9 thar he would thereby car : hun, or w rtlr the intr'Dtron to comnrit or facilitate the commission r,f a ot'fence. It is. thereibre. essential for rhe prosecution to prove that h accused ur. .lrr(ill\ r'c.pon,,ibl,: for administerjrrg pol\on elc. ( r I .rnB rl to bc t.rkcr br .Ur\ p(r\Jl]. lhroujh JIJther...... ' -fobacco does not fir utto this definition I8. Section - 273 of lPC deals with sale of a no) ious food or drink, and as per which, whoever sells, or offers or exr ses lbr sale, as food or drink, any article which has been rendered or has become noxious, or is in a state unfit for food or drink, knorr i g or having reason to believe that the same is noxious as food or r1r nk, shall be punished with imprisonment specified therein. Therefo:t if a person offers for sale a "food or drink" any article which has brc rme noxious or is in a state of unfit for "food or drink". Thus, the said section rvould apply, when an article which has become noxiou i )r which has been lcndcrcd noxious. [t also applies to food or drink .l rly. As held in Sri Jaganath Enterprisess, the word 'noxious' is r t deflned in 22 KLJ Crl.P. No. t 52 of2020 & batch IPC or in FSS Act. As per the diotionary moaning, the word .troxlous, is harmful, deleterious, injurious, poisonous etc. As stated above, the allegadon in the entire batch of present criminal petitions is with regard to transportation, possession, storage, sale and purchase of banned products viz., tobacco I rtmbalar I gutka / khaini / zardz I pan masala etc., respectively. Therefore, according to this Court, the contents of the complaint/charge sheet Iacks the ingredients of Secrion - 273 of IPC.

19. As far as section _ I gg IpC is concemed , as per thc sertled law on the subject, before an accused is charged, there must be; an order duly promurgated by the pubric servant, rhe pubric servant must have the lawful authority to promulgate the order; the person llouting the same should have knowledge about the order directing him to abstain from the act; he must disobey the said order with the knowledge; and such disobedience of the duly promulgated order should cause a drnger to the human life etc. In Boop Singh Tyagie a Division Bench ofAllahabad High Court held that right to promulgate the ordinance./order is also an issue which is being raised, because under the FSS Act, the Commissioner of Food Safety alone has the authority to pass the orders only if the article of ,food, can causes danger or is injurious to health. 23 C .P. t, KL,J t) o12020 & bntch 20 tn N.T. Rama Rao v. The State of A.P., re r. by Public Prosecutorr2 while dealing with the ofl'ences under !,r rdons - 188 and 283 o1'lPC, the leamed Single Judge of the combin:: High Court ol Andhra Pradesh held rs under. '5) Even if the allegation that the petLtiol conducted public meetings at three road juncti rr contrary to the permission accorded for conduct.r of a public meeting only at one specified plact: tme, such a direction under Section 30 of tl Police Act, 1861 could have been given only t the Superintendent or the Assistant Superintende of Police of the District but not by any of tte subordinates. If such a permission is grantr under Section 30 of the Police Act, 186l anc violated, Section 195 (1) (a) of Code of Crimin Procedure mandates that the complaint in th regard has to be made by the public senr concerned or some other person to whom suc r public servant is administratively subordinate enable any Court to take cognizance of an olferrr undcr Section I 88 of Code of Criminal Procedt r ln the present case, the charge sheet was filed t the Sub Inspector of Police, who could not hrn bccn the aulhority to grant permisslon fbr I public meeting aud therefore, the ct.rmplaint/cha 1 shcet is in violation of the mandatory provision r Section 195(1)(a) ofCode of Criminal Procedur:. r S S : t r I s I S t I ) ) l l l I 6) That apart, the offence alleged to have brx r committed under Section 283 of the Indian Per I Code by the petitioners and others is obviously r r consequence to the alleged offence under Sect c t 188 of Indian Penal Code and is not z I

12. Criminal Petition No.5323 of 2009, decidcd o n 17 .09.2009 24 KL.J Ol.P,No 152 cf 202a a barch independent of the same Even otherwise, thc conduct of public rneeting at thrce road .junctions of obstruction to the traffic could nol have been considered as causing enl dangcr or illiury Io any person. In so far as the obstruction in any public way is concemed, which can also be covered by Section 283 of the lndian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstrucdng the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under tlre circumstances, none of the offences alleged caa be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (l) (a) ofCode of Criminal Procedure, has to fail. As rhe complaint has failed due to its 7) unsustainability, the proceedings in their entirety have to fail, though the l'' accused alone approached this Court by way of this Criminal Petition."

21. In Thota Chandra Sekhar v' Thc Statc of Andhra Pradesh, through S'H.O., P.S. Eluru Rural, West Codavari Districtr3, wherein by relying on various judgments including N'T' Rama Raor2 and also the guidetines taid down by the Apex Court in Bhajan Lalro more particularly, guideline No'6, which says that rl. Crimioal Petitioo No.15248 of2ol6, de'ided otr 26 102016 25 C P I o. 52 0/2020 & batch where there is an express legal bar engrafted in any of t .e provlsrons of the Code or the concemed Act (under which a crimil 1 proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or I le concemed Act, providing effrcacious remedy to redress the grie 'ance of the party, it was held that the proceedings in the said C,C. ' ,ere quashed b1'excrcisrng pc,rver under Section - 482 of Cr.P.C. lt r, t r also further hcld that the proceedings shall not be continued due to technical det'ecr of obtaruing prior permission under Section - l5l 2) of Cr,P.C. and taking cognizance on the complaint filed by \',1 O. and it is against thc purport ofSection - 195 (l) (a) of Cr.P.C.

22. Vide Notification No.501/FSS-1/2020, datrt

06.0t,2020, the Commissioner of Food Safety, Telangana Director r1 ) of Institute of Preventive Medicine, Public Health Labs and .r od (Health) Administration, Narayanguda, Hyderabad, restricted thr: naoufacture, storage, distribution, transportation and sale of gutka / pan masala, which contains tobacco and nicotine, 45 ingredients nd chewing tobacco products, like chap tobacco, pure tobacco, lJ aini, kharra, scented tobacco / flavoured tobacco or by whatever narn , locally it is called packed in sachets / pouches / package in the er ire Stage of Telangana under FSS Act, 2006. It is for one year. Virlt Notification No.505/FSS-1/2021, dated 06.01.2021, the same was ext( rded for one more year. As per the information fumished anl lnstructions lsccived. several *ril. peutions were filed challenr:r rg the said 26 Ctl P. No 152 of 2A20 & hot.h Notifications before this Court as well as the Hon,ble Supreme Coun. A Division Bench of this Court declined to entertain some writ petitions on the ground that the Hon'ble Supreme Court seized ofthe said issue. It is also releyant to note that the Hon'ble Supreme Court remanded back the matter to this Court. Therefore, such a notification can only be issued for emergency situations and for prohibiting the distribution and sale of any article of a food cannot be lost sight of. Therefore, in view of the law laid down in the above judgments including the judgments in Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V. Nageswara Raoll. According to this Coufi, Section - 188 ofIPC will not attract to the allegations leveled against the petitioners herein in this batch oIcnminal petitions.

23. As far as Section - 328 of IPC is concemed, it deals with causing hurt by means of poison, etc., with intenr to cornnrir an offence. As per the said provision, whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with itrtent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Therefore, there should be administering poison, intoxicating etc., with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will 2',7 KL,J Crl P 'c 52 oJ 2020 &botch thereby'cause hu As stated above, the allegations in th : entire batch ot criminal petitions are lacking. Therefore, accordinl o this Court, thc contcnts ol'the complaints / charge sheets lacks the rgreclients of Section - 328 ol lPC.

24. As far as Section - 336 ofIPC is concemed. t ieals with an act endangering life or personal safety of others, and r s per which, whoever does any act so rashly or negligently as to erc rnger human life or the personal safety of others, shall be punishe I with impris- onment of either description for a term which may ex end to tbree months, or with fine which may extend to two hun I ed and fifty rupees, or with both. In the complaints / charge shert , there is no such allegation of rash and negligent act which endangs s hurnan life or personal salety of others Therefore, according to .l s Court, the contents of thc complaints / charge sheets lacks the r gredients of Scction - 336 of lPC.

25. As thr as Section - 420 ofIPC is concernec. it deals with Cheating and dishonestly inducing delivery of properq. There is no such inducement either at the inception or at a later str5 :. Thus, the contents of complaints / charge sheet lack the ingrediert: of Section - 420 of IPC.

26. As far as Section - 269 ofIPC is concemed, t deals with negligent act likely to spread infection of disease dan3 rous to life, and as per which, whoever unlawfully or negligently oes any act 2E KL.J OL P. No. I 5 2 of 2020 & barch which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both, But, a perusal of the contents of complaints / charge sheets in the present batch of cases. such ingredients are lacking and, therelore, Section - 269 ol IPC docs not arise in the present batch of cascs.

27. In view of the abovc said discussion. accordrng to thrs Court, transportation, possession, storage, sale and purchase of tobacco products are not totally banned in the State of Telangana and also in the Counny. Therefore, it cannot be said that Sections - 269, 270, 271, 272 and 273, 328, 336 and 420 of IPC are attracted to the cases in this batch.

28. As far as the offences under FSS Act is concerned, as already discussed above, in Chidurala Shyamsubdera, the learned Single Judge following the guidelines laid down by the Hon'ble Supreme Court in Bhajan Lalr0 held that the police are incomperent to take cognizance of the offences punishable under Scctrons - 54 and 59 (l) of the FSS Act, invesligating into thc olfcnces along rvith othcr offences under the provisions of the IPC, It was further held that filing charge sheet is a grave illegality, as the Food Salety Ot'licer alone is competent to investigate and to file charge sheet lollowing the Rules laid down under Sections - 4l and 42 of FSS Act. In the present case, the police have registered the crime for the offences 29 KL.J C .P. v, 152 of2020 &batch under Sections - 188,2'70 and 273 of IPC. Therefore, n the present batch ofcases. entertaining the complaints / flling the ch rge sheets by the pohce is contrary to the principle laid dorvn r Chidurala Shyamsubdera.

29. Wrth regard to the offences under COTP r\:r it is relevant to mention the objects and the reasons of the said ,\: itself clearly state rhrrt thq act is lncant to prohibit the advcrtiscr-r, rt oi, and to provide Ior thc rcgulation ol trade and commerce in. rrr J producrion, sLrpplv aurl drstribution ol. cigarettes and other tobacci products and tbr matters connected therewith or incidental thereto. , ,. eading of the said objects of the said Act would reveal that a total b .n of tobacco products was not envisaged by the said Act. The Parli ment merely felt it expedient to control the advertisement and sr : of tobacco products. As noted earlier in the order, Section - 3 (p) cf the COTP Act and the schedule therein define tobacco products. Pan masala, gutkha and chewing tobacco are included in the definiri rn oftobacco products. Section - 5 of the COTP Act deals with rohibition of advertisement of cigarette and other tobacco produr r only. No pcrson. rrho is engaged in the production, supply or r stribution of cigarettes or orher products shall advertise the samc. iimilarly, no person harinu the control ovcr a medium can advent.r cigarettes or tobacco products, and no person shall be a part ofany al ertisement.

30. Section - 7 of the COTP Act deals with rhL) mpositjon of restriction on the sale, trade, commerce of tobacco 1r ,ducts unless t0 C,] l' \D 15).1 )020 & bdt.h every package of cigarette or tobacco product contarns a specified waming (pictonal or otherwise). Section - 4 of the COTP Act, bans smoking in public places. In addition, Section - 6 01'the COTP ,A.ct. prohibits the sale of cigarettes or other tobacco products to a person who is under the age of 18 years are in an area within 100 yards of any educational institution.

31. A reading of this Ac! particularly Sections - 4,5,6 atd 7 clearly shows that there is no general ban or general prohibition on the manufacturdsale of tobacco products. 22 What is barred is merely the sale of these products to a person, who is below the age of l8 years and in an area within 100 yards of an educational institution. The other aspects covered by Sections - 5 and 7 o[ the COTP Act. deal with the advertisement and the waming, '.r'hich is to be conmined on a package, in which thc tobacco product is packcd This is a rcgulatorl mechanism only. Therefore, according to this Coun, the above said allegations of transportation, possession, storage, sale and purchase of banned tobacco products will not attract the offence under Section -7 of the COTP Act.

32. As far as Section - 20 (2) ofthe COTP Act is concemed, as stated above, the allegations against the petitioDer in respective complaints / charge shees are that they were transporting, possessing, storing, selling and purchasing the banned 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 (2) of the COTP Act 3l Ctl I KI- J ,. ':) ot:020 & batcL for bemer apprecration of the case and to decide the issu : in question, and the same is as under: "20, Punishment for failure to give spe:i ied warning and nicotine and tar contenh.- (l)... (2) Any penon who sells or distsibutes cigaretl: or tobacco products which do not contain either or the package or on their labcl, the specified waming ar c the nicotine and tar contcnls shall in the case of irst conviction be punishable with imprisonmcnt for a t rm, which may extend to one year, or with fine whic) tay extend to one thousand rupees, or with both, and, f) the second or subsequent conviction. with imprisonmen 'r a tem) which may extend ro two years and with finc v ich may extend !o three rhousand rupees." 3i Thus. Section - 20 ofCOTP Act deals with : nishment for fhilure to give specilied waming and nicotine and tar cr r :ents. But, in thc conrpluints , charge shccts, there is no allegarrr against the pctitioncrs thltt thcy were carrying on trade o1. , ommerce rn contrabalri or anv other tobacco products without labtl rnd specihed waming on the said products. In view ofthe same, the c )ntents of the complaints / charge sheets lack the ingredients of Sec.i n - 20 (2) of the COTP Act. Even, there is no allegation that the se zed products do not contain labels with sta0rtory waming. Thus, r .gistering the crimes for the said offence against the petitioners is nct rnly contrary to Section - 20 (2) ofCOTP Act, but also contrary to tbe :rinciple laid down in Chidurala Shyamsubdern. In rri"* of the sarr :, the offence under Section - 20 (2) of COTP Act is also liablc r, be quashed against the petitioners. I once again reiterate that I a ;ree with the 32 KL.J C,l.P. No.152 ol2020 & batch principle laid down by the learned Single Judges of the High Court of Andbra Pradesh iu Chidurala Shyamsubdera, Sri Jaganath Enterprisess and V. Nageswara Raoll.

34. For the foregoing discussion and the authoritative pnnciple of law, Cnminal Petition Nos. 3768, 3879. 1016, 40'71.4098. 4099, 4100, 4102, 414 t, 4151, 1t57,4t82, 1187,1247,4249,4251,4258, 4262, 4277, 4405, 4415.4542. ,+615. 4640. 4681. -1717. .1775 and 4825 of 2021 are allowed quashing the proceedings against the petitioners therein in the respective crimes mentioned therein. Sincc the proceedings in the aforesaid Cnminal Petitions are quashed against the respective petitioners, the respective Station House Officers / Investigating Offrcers are hereby directed to retum the seized property / vehicles on proper identification and verification of ownership uDder due acknowledgment.

35. Further, Criminal Petition Nos. 152,153,155, 162 & 5826 of 2020,3498, 3500, 3509, 3514, 4070, 4110, 4119, 4140, 4178, 4194, 4216, 4230, 4361, 4612, 4622 ard 4632 of 2021 are also allowed quashing the proceedings against the petitioners therein in the respective Calendar Cases mentioned therein, Since the proceedings are quashed, the respective petitioners are at libetty" to file appropriatc applications before the concerned Magistrate lor retum of the seized property / vehicle and the Magistrate shall consider the same in accordance with law. 33 KI,,J Crt.I'. I t52 ol2020 & batch As a sequel, miscellaneous petitions, if any, perrc :ng in all the t Crirninal Pstitions shall stand closed 05ru J uL\', 202l fglg: L R. copr to be marked (B/O.) Mgr K.L\(SHMAN,J