Andhra Pradesh High Court - Amravati
Eluri Subba Rao vs The State Of Andhra Pradesh on 13 December, 2019
THE HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
CRIMINAL PETITION No.6255 of 2019
ORDER:
This Criminal Petition is filed by the petitioner/A-1 under Section 482 of the Code of Criminal Procedure to quash the proceedings against him in C.C.No.868 of 2019 on the file of the learned Additional Judicial First Class Magistrate, Narsipatnam. The offences alleged in this petition are punishable under Section 273 of Indian Penal Code, 1860 and under Section 22 r/w 5(1) of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (for short 'the Act').
Heard learned counsel for the petitioner and the learned Public Prosecutor appearing for the respondent-State.
The two offences under which the petitioner has been charged are under Sections 273 I.P.C. and 22 read with 5(1) of the Act.
Learned counsel for the petitioner points out that in the very same crime in FIR No.149 of 2018, the applicability of Section 273 I.P.C. has been ruled out by a learned single Judge of this Court. Admittedly, no further proceedings were taken place against the said order.
Learned Public Prosecutor also could not point out that the order passed in Crl.P.No.10538 of 2018 was challenged.
Therefore, the position remains that in the very same FIR, the applicability of Section 273 IPC has already been ruled out. In that view of the matter, the present petitioner i.e., A-1 herein is 2 also entitled for the similar order and the proceedings under Section 273 IPC are therefore, quashed.
Coming to Section 22 read with 5(1) of the Act, learned counsel for the petitioner points out that the said Act deals with Prohibition of trading etc., in tobacco products without carrying adequate pictorial or written warning on the packging. In the case on hand, he points out that the reading of the entire material does not show anything about seized material being used as a package for the purpose of trade. Statements of the witnesses do not make any reference whatsoever about lack of pictorial warning or written warning, as mandated under the said Act. Therefore, he submits that as the trade in tobacco or tobocco products is not a crime, the police have no right to register the FIR or file charge sheet against the petitioner herein under these sections. Therefore, learned counsel for the petitioner prays to quash the proceedings in C.C.No.868 of 2019.
The learned Public Prosecutor strongly opposes the petition and states that trade in tobacco and other products are banned and once the ban is in force, the petitioner should not trade any banned products.
This Court notices that the petitioner is only charged under Section 22 read with 5 (1) of the Act. On a plain grammatical reading of Section 22 read with 5 (1) of the Act, it is not applicable to the facts and circumstances of this case, since the issue raised in this case is only about the alleged transportation and sale of these tobacco products.
Learned counsel points out that in the Schedule to the said Act, there is a definition of tobacco products i.e., Cigarettes, Pan 3 Masala or any chewing material having tobacco as one of its ingredients included gutka. Therefore, the learned counsel submits that the offences are not attracted at all as trade is not prohibited Therefore, this Court finds sufficient strength in the submission made by the learned counsel for the petitioner on both the grounds i.e., a) Section 273 IPC is already quashed by the learned single Judge of this Court and b) 22 read with Section 5 of the Act is not applicable to the facts and circumstances of the case, the charge-sheet is liable to be quashed in its entirety. Trade in tobacco products is not an offence per se.
Accordingly, the Criminal petition is allowed, quashing the proceedings in C.C.No.868 of 2019 on the file of the learned Additional Judicial First Class Magistrate, Narsipatnam against the petitioner-A1.
As a sequel, miscellaneous petitions, if any, pending in this criminal petition shall stand closed.
___________________________ D.V.S.S. SOMAYAJULU, J 13th day of December, 2019.
GR 4 THE HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU 42 WRIT PETITION No.14954 of 2019 Dated 18.10.2019 GR