Karnataka High Court
Sri.Abubakar vs The State Of Karnataka on 18 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 101344 OF 2016 (482)
C/W
CRIMINAL PETITION NO. 101345 OF 2016
CRIMINAL PETITION NO. 102232 OF 2021
CRIMINAL PETITION NO. 101344 OF 2016
BETWEEN:
1. SRI.ABUBAKAR
S/O SHOUKATSAB ASANGI,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/AT MOMIN GALLI,
JAMKHANDI,
DIST: BAGALKOTE.
...PETITIONER
(BY SMT. DEEPA J, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS ASST. POLICE SUB-INSPECTOR,
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
JAMKHANDI TOWN POLICE STATION,
JAMKHANDI,
DIST: BAGALKOTE,
REP. BY THE
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS INITIATED
AGAINST THE PETITIONERS FOR THE OFFENCE U/SEC. 328
OF IPC AND SEC. 20(2) AND 24 OF THE CIGARATTES AND
OTHER TOBACCO PRODUCTS (PROHIBITION OF
ADVERTISEMENT AND REGISTRATION OF TRADE AND
COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION)
ACT, 2003 IN CRIME NO. 29 OF 2016 AT THE JAMKHANDI
TOWN POLICE STATION JAMKHANDI TALUKA BAGALKOTE
DISTRICT.
IN CRIMINAL PETITION NO. 101345 OF 2016
BETWEEN:
1. SRI.SIKANDAR
S/O MAHAMAD TALIKOTI,
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/AT BARPET GALLI,
JAMKHANDI,
DIST: BAGALKOTE.
2. SRI.SHRIKANTA DATTA BALIKAR,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/AT BARPET GALLI,
JAMKHANDI,
DIST: BAGALKOTE.
...PETITIONERS
(BY SMT. DEEPA J, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY ITS ASST. POLICE SUB-INSPECTOR,
JAMKHANDI TOWN POLICE STATION,
JAMKHANDI,
DIST: BAGALKOTE,
REP. BY THE
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI. RAMESH CHIGARI, HCGP)
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
THIS CRIMINAL PETITION IS FILED U/SEC.482 OF
CR.P.C., SEEKING TO QUASH THE PROCEEDINGS INITIATED
AGAINST THE PETITIONERS FOR THE OFFENCE U/SEC. 328
R/W 34 IPC AND SEC. 20(2) AND 24 OF THE CIGARATTES AND
OTHER TOBACCO PRODUCTS (PROHIBITION OF
ADVERTISEMENT AND REGISTRATION OF TRADE AND
COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION)
ACT, 2003 IN CRIME NO. 65 OF 2016 AT THE JAMKHANDI
TOWN POLICE STATION, JAMKHANDI TALUKA BAGALKOTE
DISTRICT.
IN CRIMINAL PETITION NO. 102232 OF 2021
BETWEEN:
1. SRI. SIKANDAR MAHAMADASAB SHAIKH
AGE. 39 YEARS,
OCC. BUSINESS,
R/AT. LIC COLONY,
JAMKHANDI,
DIST. BAGALKOTE- 587103.
...PETITIONER
(BY SMT. DEEPA J, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI.,ADVOCATE)
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS POLICE SUB-INSPECTOR,
JAMKHANDI TOWN POLICE STATION,
JAMKHANDI,
DIST. BAGALKOTE 587103,
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
...RESPONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE PROCEEDINGS INITIATED AGAINST
THE PETITIONERS FOR THE OFFENCE U/S 328 OF IPC AND
SECTION 20(2) AND 24 OF COTPA, THE CIGARETTES AND
OTHER TOBACCO PRODUCTS ACT, 2003 IN CRIME
NO.112/2019 OF THE JAMKHANDI TOWN POLICE STATION
AND CHARGE SHEET OF 97/2020 CC NO.47/2021 ON THE FILE
OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, JAMKHANDI
AND SC NO.5028/2021 ON THE FILE OF I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BAGALKOTE SITTING AT
JAMKHANDI, BAGALKOTE DISTRICT.
THESE PETITIONS COMING ON FOR FINAL DISPOSAL
THIS DAY THE COURT MADE THE FOLLOWING.
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CRL.P No. 101344 of 2016
C/W CRL.P No. 101345 of 2016
CRL.P No. 102232 of 2021
ORDER
Learned High Court Government Pleader is directed to take notice for respondent - State.
2. Heard learned counsel Smt. Deepa J, for Sri Mrutyunjay Tata Bangi, appearing for the petitioner and Sri Ramesh Chigari, learned High Court Government Pleader.
3. Petitions are filed under Section 482 Cr.P.C., with the following prayer:
IN CRL.P.NO.101344/2016
"Wherefore it is prayed that this Hon'ble Court be pleased to quash the proceedings initiated against the petitioner for the offence under Section 328 r/w Section 34 IPC and Section 20(2) and 24 of the Cigarattes and other Tobacco Products (Prohibition of Advertisement and Registration of Trade and Commerce, Production, Supply and Distribution) Act, 2003 in Crime No.65 of 2016 at the Jamkhandi Town Police Station, Jamkhandi Taluka, Bagalkote District in the interest of justice and equity."-7- CRL.P No. 101344 of 2016 C/W CRL.P No. 101345 of 2016 CRL.P No. 102232 of 2021 IN CRL.P.NO.101345/2016
"Wherefore it is prayed that this Hon'ble Court be pleased to quash the proceedings initiated against the petitioners for the offence under Section 328 IPC and Section 20(2) and 24 of the Cigarattes and other Tobacco Products (Prohibition of Advertisement and Registration of Trade and Commerce, Production, Supply and Distribution) Act, 2003 in Crime No.29 of 2016 at the Jamkhandi Town Police Station, Jamkhandi Taluka, Bagalkote District in the interest of justice and equity."IN CRL.P.NO.102232/2021
"Wherefore it is prayed that this Hon'ble Court be pleased to quash the proceedings initiated against the petitioners for the offence under Section 328 IPC and Section 20(2) and 24 of the Cigarattes and other Tobacco Act, 2003 in Crime No.112 of 2019 of the Jamkhandi Town Police Station and charge sheet of 97/2020, C.C.No.47/2021 on the file Prl.Senior Civil Judge and JMFC., Jamkhandi and S.C.No.5028/2021 on the file of 1st Addl.District and Sessions Judge Bagalkote sitting at Jamkhandi, Bagalkote Ditrict in the interest of justice and equity."-8- CRL.P No. 101344 of 2016 C/W CRL.P No. 101345 of 2016 CRL.P No. 102232 of 2021
4. Brief facts of the case are as under:
Additional Superintendent of Police, Jamakhandi by name Sri Aruna Rangarajan, got a report from Jamakhandi Town Police Station stating that, when he was in his office, near Umarameshwara Cross, opposite to Janatha Bazar, persons were indulging in preparing a mixture of Tobaco Areca nut powder and was packing the same and knowing fully well that it is injurious to the human health, was in the process of selling to the general public and under aged children. Immediately, he raided and seized Tobacco and other materials in the presence of pancha witnesses and sought for action.
5 Based on the said complaint, Jamakhandi Town Police registered cases in Cr.No.29/2016, Cr.No.65/2016 and Cr.No.112/219 for the offences punishable under Section 328 r/w Section 34 IPC and Section 20 (2) and 24 of the Cigarattes and other Tobacco Products (Prohibition of Advertisement and Registration of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
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6. Being aggrieved by the same, petitioners are before this court reiterating the complaint urged in the petition.
7. Smt. Deepa J, learned counsel appearing for the petitioner contended that per se offence under Section 328 r/w Section 34 IPC does not get attracted and other offences alleged are compoundable and simple offences, imposing only the fine and therefore, sought for quashing of the entire complaint.
8. Per contra, learned High Court Government Pleader opposes the petition grounds and submits that in the general public, without pass or permit, the petitioner was indulging in selling the Areca nut powder with Tobacco and which is injurious to the human health and therefore, prima-facie materials are there to proceed against the petitioner.
9. In view of the rival contentions, this Court perused the material on record.
10. In order to attract offence under Section 328 r/w Section 34 IPC., prosecution has to establish following ingredients:
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328. Causing hurt by means of poison, etc., with intent to commit an offence.--Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing 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 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.
11. On bare reading of the complaint averments, no such ingredient is found in and therefore, Jamakhandi Town police invoking Section 328 r/w Section 34 IPC would not get attracted.
12. Accordingly, the offence under Section 328 IPC need not be invoked against the petitioner, cannot be investigated.
Hence, the following ORDER Petitions are allowed in part.
The criminal proceedings in Cr.No.29 of 2016, Cr.No.65/2016 and Cr.No.112/2019 and charge sheet in
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CRL.P No. 101344 of 2016 C/W CRL.P No. 101345 of 2016 CRL.P No. 102232 of 2021 97/2020 of Jamkhandi Town Police Station, Jamkhandi Taluk, Bagalkote District for the offence punishable under Section 328 r/w Section 34 IPC., insofar as the present petitioners are concerned, are hereby quashed.
In respect of the rest of the offences, the petitioners are at liberty to approach the jurisdictional Court with appropriate prayer.
Ordered accordingly.
SD/-
JUDGE MR