Telangana High Court
Keshav Agarwal vs State Of Telangana on 4 October, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.8300 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioner/accused No.3 in C.C.No.162 of 2024 on the file of the learned X Additional Magistrate, Ranga Reddy District, Kukatpally, registered for the offences punishable under Section 188 of the Indian Penal Code, 1860 (for short 'IPC') and Sections 4 and 5 read with 7 of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 (for short 'the Act').
2. The brief facts of the case are that the respondent registered the case against the petitioner stating that as per the instructions of the Station House Officer, Madhapur, on31.12.2023 while performing New Year Bandobust duties, he checked Olive Bistro Bar and Restaurant, Madhapur, and found that the said Restaurant was selling e-cigarettes to the customers by violating the Government Orders. Thereafter, the Police registered a case in Crime No.02 of 2024 for the 2 SKS,J Crl.P.No.8300 of 2024 offences punishable under Section 188 of IPC and Sections 4 and 5 read with 7 of the Act. After completion of investigation, the Police filed charge sheet, vide C.C.No.162 of 2024 before the learned X Additional Metropolitan Magistrate, Ranga Reddy District, Kukatpally.
3. Heard Sri N.V Sumanth, learned counsel representing M/s. Indus Law Firm, appearing on behalf of the petitioner as well as Sri D. Arun Kumar, learned Additional Public Prosecutor appearing on behalf of the respondent.
4. Learned counsel for the petitioner submitted that the allegations leveled against the petitioner are vague and baseless. Even if the entire complaint or the charge sheet are taken in toto, the offences as alleged by the respondent do not constitute against the petitioner. He further submitted that since there is a bar under Section 195 (1) (a) of Cr.P.C, that when the complaint is not made by the public servant/authorized officer in written, the same cannot be treated as the offence punishable under Section 188 of the I.P.C.He further submitted that the petitioner is working as CEO of Deccan Electricals Private Limited and he is no way concerned with the Olive Bistro Bar and Restaurant. The 3 SKS,J Crl.P.No.8300 of 2024 petitioner is not engaged in the sale of e-cigarettes to anyone. Therefore, Sections 4 and 5 read with 7 of the Act do not attract to the present case. Hence, the allegations levelled against the petitioner do not constitute any offence, as such, he prayed the Court to quash the proceedings against the petitioner.
5. On the other hand, learned Additional Public Prosecutor vehemently opposed the submissions made by the learned counsel for the petitioner stating that the allegations levelled against the petitioner are serious in nature, and at this stage, it cannot be said that the said allegations do not constitute any offence. Therefore, he prayed the Court to dismiss the criminal petition.
6. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that the allegations levelled against the petitioner are under Section 188 of IPC and Sections 4 and 5 read with 7 of the Act. It is specifically contended by the learned counsel for the petitioner that the petitioner is neither the owner nor worker in the Olive Bistro Bar and Restaurant and that he did not sell any e-cigarettes to the customers. At 4 SKS,J Crl.P.No.8300 of 2024 this stage it is imperative to note the relevant Sections, which reads as under:
7. Section 188 of the I.P.C reads as follows:
Section 188: Disobedience to order duly promulgated by public servant.
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 his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation: It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration: An order is promulgated by a public servant lawfully empowered to promulgate such order, 5 SKS,J Crl.P.No.8300 of 2024 directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section".
8. Sections 4, 5 and 7 of the Act, which reads as under:
4. On and from the date of commencement of this Act, no person shall, directly or indirectly,-
(i) produce or manufacture or import or export or transport or sell or distribute electronic cigarettes, whether as a complete produce or any part thereof; and
(ii) advertise electronic cigarettes or take part in any advertisement that directly or indirectly promotes the use of electronic cigarettes.
5. On and from the date of commencement of this Act, no person, being the owner or occupier of having the control or use of any place shall, knowingly permit it to be used for storage of any stock of electronic cigarettes:
Provided that any existing stock of electronic cigarettes as on the date of the commencement of this Act kept or sale, distribution, transport, export or advertisement shall be disposed of in the manner hereinafter specified-
(a) The owner or occupier of the place with respect to the existing stock of electronic cigarettes shall, suo motu, prepare a list of such stock of electronic cigarettes in his 6 SKS,J Crl.P.No.8300 of 2024 possession and without unnecessary delay submit the stock as specified in the list to the nearest office of the authorized officer; and
(b) The authorized officer to whom any stock of electronic cigarettes is forwarded under clause (a) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to the law for the time being in force.
7. Whoever contravenes the provisions of Section 4, shall be punishable with imprisonment for a term which may extend to one year with fine which may extend to one lakh rupees, or with both, for the second or subsequent offence, with imprisonment for a term which may extend to three years and with fine which may extend to five lakh rupees."
9. Section 195(i) (a) of Cr.P.C., reads as under:-
"(i) (a) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(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 writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"7
SKS,J Crl.P.No.8300 of 2024
10. Reverting to the facts of the case on hand and a perusal of Section 188 of IPC would reveal that the said Section is not applicable to the present case. Further, there is a bar under Section 195 (1) (a) of Cr.P.C., whereunder, a written complaint has to be filed by the public servant/authorized officer and it is not followed in the present case.
11. That apart, the petitioner was also charged for the offence punishable under Sections 4 and 5 read with 7 of the Act. A perusal of the said Sections would reveal that from the date of commencement of the Act, no person shall directly or indirectly produce or manufacture or import or export or transport or sell of distribute electronic cigarettes, whether as a complete product or any part thereof and not to advertise electronic cigarettes or take part in any advertisement that directly or indirectly promotes the use of electronic cigarettes.
12. In the present case, the petitioner is neither the owner nor the worker in the Olive Bistro Bar and Restaurant. Further, the petitioner is not selling or transporting or exporting or importing or manufacturing or advertising the electronic cigarettes, but the petitioner was present in the said premises. Except the said allegation, there is no other specific 8 SKS,J Crl.P.No.8300 of 2024 allegation against the petitioner. Therefore, the allegation against the petitioner do not constitute any offence, as such, the proceedings against him are liable to be quashed.
13. In the result, the criminal petition is allowed and the proceedings against the petitioner in C.C.No.162 of 2024 on the file of the learned X Additional Metropolitan Magistrate, Kukatpally, are hereby quashed.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K.SUJANA, J Date: 04.10.2024 SAI