Andhra Pradesh High Court - Amravati
Kunchanapalli Bala Nagaraju Alias Raju vs Through The Sho on 5 March, 2020
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
1
CMR, J.
Crl. P.Nos.5103 of 2019 & Batch
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition Nos.5103, 5106, 5173, 5174, 5184, 5189,
7595, 7609, 7812, 7814 of 2019; 238, 239, 241, 243, 244,
251, 252, 255, 301, 302, 303, 358, 475, 476, 477, 484, 485,
486, 488, 506, 507, 508, 510, 512, 568, 570, 630, 631, 733,
754, 793, 832, 951, 1121 and 1153 of 2020.
COMMON ORDER:
This batch of Criminal Petitions under Section 482 Cr.P.C. are filed by various petitioners seeking quash of the F.I.R. and the charge-sheet respectively in various cases registered under Sections 54 and 59 of the Food Safety and Standards Act, 2006 (for short, "the FSS Act"), under Sections 270 and 273 of I.P.C. and under Sections 22 r/w.5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (for short, "the COTP Act") and also other offences punishable under the Indian Penal Code.
Since common issue is involved whether the products in question viz., Gutka, Khaini and Tobacco etc. fall within the definition of 'food' as defined under Section 3(1)(j) of the FSS Act and whether Police are competent to investigate such offences and whether the facts of the cases give raise to any criminal liability for the offences punishable under the Indian Penal Code for which the cases are registered, all these Criminal Petitions were heard together and they are being disposed of by this common order.
2
CMR, J.
Crl. P.Nos.5103 of 2019 & Batch Facts of the cases lie in a narrow compass and may be stated as follows:
The substance of accusation made against the petitioners in all these batch of cases is that some of them have been manufacturing the tobacco products and all the petitioners have indulged in transporting the products like Gutka, Khaini and Tobacco for sale and thereby committed the offences punishable under Sections 54 and 59 of the FSS Act, under Sections 270 and 273 of I.P.C. and under Sections 22 r/w.5 of the COTP Act also other offences punishable under the Indian Penal Code.
The petitioners sought quash of the said criminal proceedings against them primarily on three grounds. The first ground is that as regards the offences punishable under the FSS Act is concerned, it is the Food Safety Officer, who is competent to inspect the premises where the business of selling food is being done to draw the samples and send them to Food Analyst for analysis and after receiving the report of the Analyst within the stipulated time, the designated officer after scrutiny of the report of the Food Analyst shall decide whether there is any contravention of the provisions of the FSS Act and whether the same is punishable with imprisonment or fine only and in case contravention is found punishable with imprisonment, he shall send his recommendations within 14 days to the Commissioner of Food Safety to grant sanction for prosecution. Therefore, the 3 CMR, J.
Crl. P.Nos.5103 of 2019 & Batch Police are not competent to launch any criminal prosecution for any of the offences punishable under the FSS Act. The second ground is that the products in question like Gutka, Khaini and Tobacco do not fall within the definition of 'food' as defined under Section 3(1)(j) of the FSS Act. Therefore, no offence is made out under the FSS Act. The third ground is that the facts of the case do not constitute any offence punishable under Sections 270 and 273 of IPC also and also under the provisions of COTP Act. Therefore, the initiation of criminal proceedings against the petitioners in all these cases amount to abuse of process of law and thereby prayed to quash the criminal proceedings launched against them in all the above cases.
Heard learned counsel for the petitioners and the learned Additional Public Prosecutor for the respondent-State.
Learned counsel for the petitioners would submit that several similar cases were earlier registered against various persons by the Police and initiated criminal proceedings against them and they all questioned the legal validity of the said proceedings initiated against them by way of filing Criminal Petitions under Section 482 Cr.P.C. before this Court on the above three grounds and the common High Court for the States of A.P. and Telangana quashed the proceedings of the case while upholding the above contention of the accused.
4
CMR, J.
Crl. P.Nos.5103 of 2019 & Batch The common High Court of Judicature at Hyderabad by its common order passed in Crl.P.No.3731 of 2019 and batch, dated 27.08.2018, they would submit, upheld the contentions of the petitioners raised above and held that the Police are not competent to register any such cases under the FSS Act and investigate the same and it is only the Food Safety Officer under Section 42 of the FSS Act is the competent officer to initiate proceedings under the FSS Act and also held that the products in question like Gutka, Khaini and Tobacco do not fall within the definition of 'food' as defined under Section 3(1)(j) of the FSS Act. It is also submitted that the common High Court of Judicature at Hyderabad also held even the facts of the case do not constitute any offences punishable under Sections 270 and 273 of IPC and also under the COTP Act and quashed the criminal proceedings launched against them by allowing the said batch of criminal petitions. They also would submit that even this Court following the said common order of the common High Court of Judicature at Hyderabad in another batch of Criminal Petitions viz., Crl.P.No.5421 of 2019 and batch, arising out of the same sections of law, also quashed the criminal proceedings initiated against the petitioners therein. Therefore, in view of the settled law in this regard, they would submit that the criminal proceedings initiated against the petitioners in these cases also are liable to be quashed and thereby, they prayed 5 CMR, J.
Crl. P.Nos.5103 of 2019 & Batch to allow all these Criminal Petitions and quash the criminal proceedings initiated against these petitioners.
The learned Additional Public Prosecutor for the respondent-State, though opposed these Criminal Petitions stating that when the facts of the case constitute offences punishable both under the Special Enactment like FSS Act and also the Indian Penal Code, Police while registering cases for the offences punishable under the Indian Penal Code are also competent to register the cases under the Special Enactment like the FSS Act though they are non-cognizable in view of Section 155(4) Cr.P.C. Therefore, he would submit that it cannot be said that the Police are not competent to investigate the said cases. However, he admits that the said contention was negatived by the common High Court of Judicature at Hyderabad in the above referred common order passed in the above batch of Criminal Petitions.
Thus, as can be seen from the aforesaid rival contentions and material available on record, the legal position relating to the issue involved in these Criminal Petitions is not an undecided question of law. The common High Court of Judicature at Hyderabad as well as this High Court categorically held that the Police are not competent to register the cases under the FSS Act and investigate the same and it is only the Food Safety Officer under Section 42 of the FSS Act is competent to initiate legal proceedings for the offences if any punishable under the FSS Act. The common 6 CMR, J.
Crl. P.Nos.5103 of 2019 & Batch High Court of Judicature at Hyderabad also held that the facts of the case do not constitute any offences punishable under the Indian Penal Code also and the COTP Act. The Court also held that the said products like Gutka, Khaini and Tobacco do not fall within the purview of the definition of 'food' as defined under Section 3(1)(j) of the FSS Act. This High Court also held that a reading of Sections 4, 5, 6 and 7 of the COTP Act shows that there is no general ban or general prohibition on the manufacture/sale of tobacco products and what is barred is merely the sale of these products to a person, who is below the age of 18 years and in an area within 100 yards of an educational institution and the other aspects covered by Sections 5 and 7 of the COTP Act deal with the advertisement and the warning, which is to be contained on a package, in which the tobacco product is packed and this is a regulatory mechanism only. Therefore, this Court opined that the provisions of the COTP Act can only be pressed into service under the aforesaid limited circumstances only for violation of Sections 4, 5, 6, 7 and 10 of the COTP Act. Both the common High Court of Judicature at Hyderabad and this High Court further held that in order to constitute an offence punishable under Section 270 of IPC, there must be an act committed by a person with knowledge or reason to believe that such act is likely to spread any infection or any disease, dangerous to life, but the act committed by the petitioners is only transportation of Pan 7 CMR, J.
Crl. P.Nos.5103 of 2019 & Batch Masala, Khaini and chewing tobacco in different vehicles and as such, Section 270 of I.P.C. has no application to the facts of the case. The Court also held that chewing tobacco also cannot be held to be a 'food'.
Therefore, as the common High Court of Judicature at Hyderabad and this High Court categorically held in the above two common orders passed in the aforesaid said two batch of Criminal Petitions, that no offences under the FSS Act, Indian Penal Code and the COTP Act are made out from the facts of the case and that allowing the proceedings to be continued in the facts and circumstances of the case would amount to abuse of process of law and thereby quashed all the said criminal proceedings launched against the petitioners therein, the petitioners herein, who are also similarly placed, are also entitled to the similar relief.
Therefore, in view of the said settled law as discussed supra, the legal proceedings initiated against the petitioners herein in all these Criminal Petitions are also liable to be quashed, except in Crl.P.Nos.251 and 252 of 2020.
In the result, all these Criminal Petitions, except Crl.P.Nos.251 and 252 of 2020, are allowed and the proceedings initiated against the petitioners herein in the respective crimes registered for the aforesaid offences are hereby quashed.
In Crl.Petition Nos.251 and 252 of 2020 apart from the offences under the FSS Act, IPC and COTP Act, offences 8 CMR, J.
Crl. P.Nos.5103 of 2019 & Batch under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") were also registered. Since, this Court held in the above two common orders, that the facts of the case do not constitute any offense punishable under the FSS Act, IPC and COTP Act, the proceedings relating to the said offences alone are hereby quashed in Crl.P.Nos.251 and 252 of 2020. However, these two criminal petitions are to be heard separately relating to the offences under the NDPS Act. Therefore, they are to be posted before the Bench to hear on the said offences. Hence, these two Criminal Petitions are partly allowed quashing the proceedings against the petitioners for the offences under the FSS Act, IPC and COTP Act.
Consequently, miscellaneous applications, pending if any, shall also stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:05.03.2020.
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