Karnataka High Court
Lingraj S/O Subhash Lature vs The State Of Karnataka on 21 June, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION No.200019/2021
BETWEEN:
Lingraj S/o. Subhash Lature
Age: 36 years, Occ: Business
R/o. Basava Gunj
Basavakalyan, Dist: Bidar
... Petitioner
(By Sri Sachin M. Mahajan, Advocate)
AND:
The State of Karnataka
By Basavakalyan Town P.S.
Dist: Bidar, by its SHO
Now represented by the Additional
State Public Prosecutor, High Court
of Karnataka, Kalaburagi Bench
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in
C.C.No.362/2016, (resulting out of the FIR No.85/2016),
pending on the file of the learned Civil Judge (Jr.Dn.) and
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JMFC at Basavakalyan for the alleged offences punishable
under Section 7 of the Cigarette and Other Tobacco
Products Act, 2003.
This petition coming on for Admission this day, the
Court made the following:
ORDER
This petition is filed by the petitioner under Section 482 of Cr.P.C praying to quash the proceedings initiated in C.C.No.362/2016, arising out of Crime No.85/2016 of Basavakalyan Town Police Station, Bidar District pending on the file of Civil Judge (Jr.Dn.) and JMFC Court, Basavakalyan for the offence punishable under Section 7 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, 'COPTA') and also Pictorial Warning Rules, 2014 (for short, 'Rules').
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2. The brief facts of the case are that the present petitioner is proprietor of Om Sai Agencies at Basavakalyan and he used to carry the business of trading consumables, consumer goods and tobacco products etc., by having licence. It is also alleged that on 21.05.2016, on the basis of credible information, the PSI of Basavakalyan had raided the warehouse belonging to the present petitioner in Adat Bazar of Basavakalyan and there he found that the petitioner has stored the tobacco cigarette packets worth of Rs.55,000/- and the seized products were being sold in violation of Section 7 of the COPTA.
3. It is also alleged that Rules of 2014, require display of pictorial warning covering 85% space of the package of the tobacco products and on the basis of the said raid, FIR was registered and charge sheet also came to be submitted. Being 4 aggrieved by the said registration of the case the petitioner has filed this petition before this court.
4. The main ground urged by the learned counsel for the petitioner is that he has not committed any violation of COPTA and Rules made there under and by virtue of letter dated 20.05.2016, issued by the Joint Secretary to Government of India by the Ministry of Health and Family Welfare, the compliance of Rules was extended by 31.05.2016. However, in the instant case the raid was conducted on 21.05.2016, before the extended period and there is no violation of the COPTA or Rules made there under. He further contended that on similar matter this Court in Crl.P.No.200978/2016 and Crl.P.No.200024/2018, quashed the proceedings on similar footings and hence he has sought for allowing the petition by setting aside the registration of the case. 5
5. Per contra, the learned High Court Government Pleader submitted that the products have been seized and there were non compliance with the warning as per Rules of 2014 and the raid was conducted on 21.05.2016, but the letter issued by the Joint Secretary was dated 20.05.2016 and hence the grounds urged are not acceptable and there is a material breach in violation the Rules and sought for rejection of the petition.
6. Having heard the arguments on both sides and on perusing the records, it is an admitted fact that on 21.05.2016 the PSI of Basavakalyan at 2.45 p.m. raided the warehouse belonging to the petitioner and seized tobacco products worth of Rs.55,000/- on the ground that the seized products were being sold by in violation of Section 7 of the COPTA and the Rules made there under as they do not 6 display of pictorial warning covering 85% space of the packages of the tobacco products.
7. Section 7 of the COPTA, which reads as under :-
"7. Restrictions on trade and commerce in, an production, supply and distribution of, cigarettes and other tobacco products.-(1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package or cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label, [such specified warning including a pictorial warning as may be prescribed].
(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning.
(3) No person shall import cigarettes or any other tobacco products for distribution or 7 supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.
(4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration.
(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof:
Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be
prescribed by rules made under this Act."8
8. Hence, on verification of the said provision, it is evident that, no person shall carry on trade or commerce in cigarettes or any other tobacco products unless the product carries a label of the specified warning. How the warning has to be there on the tobacco product is subsequently clarified by issuing notification 15.10.2014. As pr the said notification, Clause (b), specifies that the health warning shall cover at least eighty-five percent (85%) of the principle display area of the package of which sixty percent (60%) shall cover pictorial health warning and twenty-five percent (25%) shall cover textual health warning and shall be positioned on the tope edge of the package and in the same direction as the information of the principal display area must be there and the said notification also specifies that it shall be with effect from 1st day of April, 2016. 9
9. However, the letter dated 20.05.2016, issued by the Joint Secretary to Government of India, Ministry of Health and Family Welfare clearly disclose that the Rules shall be complied strictly, but, it is also referred that the implementation date is extended up to 31.05.2016, to withdraw the products already pushed in market for compliance. Hence, this letter clearly disclose that, the compliance period was extended up to 31.05.2016. Admittedly, the raid was conducted on 21.05.2016, but, the period for compliance was already extended till 31.05.2016. Under these circumstances, as on the date of raid, there was no violation and the petitioner had a time up to 31.05.2016, to call back the said product for getting reprinted or repacking as per the COPTA and Rules made there under.
10. Under such circumstances, as on the date of raid there was no offence under the said Act and as 10 such criminal proceedings deserves to be quashed. The similar view is taken by the Coordinate Bench in Crl.P.No.200978/2016 and Crl.P.No.200024/2018. Hence, I proceed to pass the following :
ORDER The petition is allowed. The criminal proceedings in C.C.No.362/2016 arising out of Crime No.85/2016 of Basavakalyan Town Police Station, Bidar registered for the offence punishable under Section 7 of the COPTA and Rules, pending before the Court of the Civil Judge (Jr.Dn.), JMFC, Basavakalyan, Bidar District are hereby quashed.
In view of disposal of main petition, I.A.1/2020 does not survive for consideration.
Sd/-
JUDGE Srt