Orissa High Court
Ladu Patro @ Ladu Kishore Patra vs State Of Odisha ..... Opp. Party on 3 January, 2022
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
ORISSA HIGH COURT: CUTTACK
CRLMC No. 2630 of 2021
An application under section 482 of the Code of Criminal Procedure, 1973
challenging the order date 01.11.2021 passed in S.T. Case No. 80 of 2021
pending in the file of learned 3rd Addl. Sessions Judge, Berhampur.
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Ladu Patro @ Ladu Kishore Patra ..... Petitioner
-Versus-
State of Odisha ..... Opp. Party
Advocate(s) appeared in this case :-
_________________________________________________________
For Petitioner : M/s. Jyotirmaya Sahoo and
S.K. Pattaik, Advocates
For Opp. Party: Mr. S.K. Mishra,
Addl. Standing Counsel.
_______________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
ORDER
rd 3 January, 2022 SASHIKANTA MISHRA, J.
In the present application filed under Section 482 Cr.P.C., the petitioner seeks to challenge the order dated 01.11.2021 passed by learned 3rd Addl. Sessions Judge, Berhampur in S.T. Case No. 80/2021 whereby, the petition filed by the petitioner under Section 227 of Cr.P.C. for discharge was rejected.
2. The brief facts of the case are that on 15.03.2021 while the staff of Berhampur Sadar P.S. was on patrolling duty, they received information regarding illegal manufacture of Gutkha in a Mushroom Farm. Accordingly, they proceeded to the spot and raided the farm and found several Gutkha manufacturing machines, packing machines and some Gutkha kept in Jari bags. However, no one present at the spot. As such, the above items were seized in presence of independent witnesses including nine Jari bags containing 50 packets each of pan masala in the name and style of "Bolo Zubaan Keshari Vimal" Pan Masala in every pouch. In course of investigation, it was found that the present petitioner and other persons were carrying out illegal manufacture and sale of pan masala / Gutkha in violation of Government Regulations and were evading tax thereby. Accordingly, an FIR was lodged by the ASI, which relates to registration of Berhampur Sadar P.S. Case No. 69 of 2021 under Sections 420/272/273/34 of IPC and Sections 20 and 24 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (in short "2003 Act"), which corresponds to G.R. Case No. 456 of 2021. Upon completion of investigation, charge sheet was submitted against the Page 2 of 9 accused persons for the aforementioned offences. Subsequently, the case was committed to the Court of Sessions and registered as Sessions Trial No. 80/2021. The petitioner filed a petition on 03.09.2021 under Section 227 of Cr.P.C. for discharge. The said petition was heard by the learned Court below on 01.11.2021 and rejected and on the same day, charge was framed under the aforesaid offences.
3. Heard Mr. J. Sahoo, learned counsel for the petitioner and Mr. S.K. Mishra, learned Addl. Standing Counsel for the State.
4. Assailing the impugned order, Mr. Sahoo contends that the chemical examination report submitted by the Regional Forensic Science Laboratory (RFSL), Berhampur clearly shows that nicotine, tobacco and tar could not be detected from the seized articles and therefore, the offence under Sections 272/273 of IPC read with Section 20/24 of 2003 Act are not made out. Learned court below however despite noting the chemical examination report held that the genuineness and validity thereof is a subject of evidence and trial and cannot be held as final at this stage. The above, according to Mr. Sahoo, is a gross error committed by learned court below, inasmuch as despite absence of the basic ingredients to even prima facie constitute the alleged offences, the petition for discharge was rejected and charge was framed for the said offences.
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5. Mr. S.K. Mishra, learned Addl. Standing Counsel, on the other hand has held that at the stage of framing charge or considering the petition for discharge, the court is not required to sift through the evidence or to assess the probative value thereof. Since there are materials on record justifying at least a suspicion regarding commission of the offences, learned court below rightly rejected the petition for discharge. However, on a query by this Court, Mr. Mishra fairly submitted that the prosecution does not dispute the chemical examination report in question.
6. Law is well settled that at the stage of framing charge, the court is required to only consider if there are reasonable grounds to presume the commission of the alleged offence and therefore, is not expected to make a roving enquiry. There is no dispute as regards the above position of law. It is however, equally well settled that even at such stage, the court is required to look at the materials on record to see if the necessary ingredients to constitute the alleged offences are prima facie made out and unless the court arrives at such a conclusion, it would be improper, nay illegal on its part to frame charge against the accused persons for the said offence.
7. Keeping the legal propositions as above in the background, the facts of the case may now be considered.
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Admittedly, some packet of pan masala styled "Bolo Zuuban Kehari" were recovered and seized from the spot house and they were sent for chemical analysis as evident from the forwarding report dated 19.08.2021 to the RFSL, Berhampur, which is available in the case diary produced by the State Counsel for perusal of the Court. In the forwarding report, the nature of examination required was stated as under:
"1. Whether exhibit "A" is Tabaco product or not?
2. Whether nicotine and tar contents available in the exhibits or not? If so, what is the percentage?
3. Any other examination required may kindly be done for the interest of prosecution."
In response to such request made by the I.O., the RFSL, Berhampur through its Reporting Officer-cum- A.C.E. submitted a report duly countersigned by the Deputy Director on 13.04.2021 specifically mentioning the results of the examination as under:
"Nicotine, Tabacco and Tar could not be detected in the exhibit marked as A."
It is therefore clear that the seized products did not contain tobacco, nicotine or tar.
8. A reference to the provisions of the 2003 Act would reveal that "tobacco products" is defined under Section 3(p) of the Act as follows:
"(p) "tobacco products" means the products specified in the Schedule."
The Schedule appended to the 2003 Act is as follows: Page 5 of 9
THE SCHEDULE [See section 3(p)]
1. Cigarettes
2. Cigars
3. Cheroots
4. Beedis
5. Cigarette tobacco, pipe tobacco and hookah tobacco
6. Chewing tobacco
7. Snuff
8. Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called).
9. Gutka
10. Tooth powder containing tobacco."
(Emphasis supplied) It is therefore, clear that even a pan masala can be treated as a tobacco product, but only if tobacco is one of its ingredients.
8. Now Section 20 of the 2003 Act reads 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) 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 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.Page 6 of 9
Obviously when the product itself is not a tobacco product within the meaning of 2003 Act, the provision of Section 20 will not apply.
Similarly, Section-24 is the penal section for Section-6 of the 2003 Act. Section-6 reads as follows:
6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area.-No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product-
(a) to any person who is under eighteen years of age, and
(b) in an area within a radius of one hundred yards of any educational institution.
The analogy applied for Section-20 as above can also be made applicable for the provisions under Section-6 read with Section 24 of the 2003 Act to hold that the product not being tobacco product within the meaning of Section 2003 Act, the provisions of the Act will not apply.
9. Coming to the provisions under Section 272/273 of IPC, it is to be noted that the entire case of the prosecution as per the FIR is that the petitioner was manufacturing and selling Gutkha, which violates the Government guidelines prohibiting the preparation and sale of tobacco pan masala to the general public. However, when the basic ingredient, i.e., tobacco is found to be absent in the composition of the products seized from the spot house, there is no way by which the provisions of Section Page 7 of 9 272/273 of IPC can be attracted. It goes without saying that to sustain the prosecution under Section 272/273 of IPC, it must be shown that the accused adulterated some article of food or drink; the article so adulterated became noxious as food or drink and he did it with intention to sell the article knowing it to be noxious or unfit for food or drink. It is not the case of the prosecution that apart from the so-called admixture of tobacco in the seized product, it had been rendered noxious and unfit for human consumption by any other means. It is stated at the cost of repetition that except for the allegation of inclusion of tobacco in the seized product there is no other material to even remotely suggest that the same were unfit for human consumption being noxious.
10. From a conspectus of the analysis made hereinbefore, it is crystal clear that none of the ingredients necessary to at least prima facie constitute the offences alleged under the 2003 Act or under Section 272/273 of IPC are found to exist. It mast be kept in mind that the above conclusion can be readily drawn from the materials placed by the prosecution itself and not on any material placed by the defense. Further, the prosecution having submitted the chemical examination report does not disown or dispute it in any manner. On the contrary, the defence has also relied entirely upon the chemical examination report submitted by the prosecution. Such being the factual position, it is not comprehended as to Page 8 of 9 what further evidence is required to prove the chemical examination report or even if it is formally proved, what would be its probative value. Obviously, the contents of the report cannot change. It is also not the case of the prosecution that there is any other evidence apart from the chemical examination report to show the commission of the alleged offences.
11. This court is therefore of the considered view that the learned court below committed an error in rejecting the petition for discharge by holding that the genuineness and validity of the chemical examination report, which is not disputed by any party, is a subject of evidence and trial. As such, the impugned order warrants interference.
12. In the result, the CRLMC is allowed. The impugned order is quashed. Learned court below is directed to pass appropriate orders to discharge the accused- Ladu Patro @ Ladu Kishore Patra in respect of the offences under Sections 272/273 of IPC read with Sections 20/24 of the 2003 Act. It is made clear that this Court has not expressed any opinion as regards the other offence(s) alleged against the petitioner.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 3rd January, 2022/ A.K. Rana Page 9 of 9