Andhra Pradesh High Court - Amravati
Uppara Veerendra, vs State Of Andhra Pradesh, on 28 December, 2021
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
1
CMR, J.
Crl.P.No.2966 of 2021 & batch
HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Criminal Petition Nos.2966, 3555, 3636, 3649, 3660, 3661,
3665, 3670, 3671, 3675, 3678, 3680, 3682, 3687, 3690, 3693,
3694, 3703, 3706, 3709, 3711, 3721, 3722, 3724, 3725, 3726,
3727, 3747, 3749, 3752, 3755, 3792, 3793, 3794, 3795, 3822,
3823, 3824, 3825, 3842, 3850, 3852, 3858, 3859, 3861, 3864,
3890, 3892, 3896, 3897, 3898, 3904, 3907, 3924, 3926, 3946,
3947, 3989, 4008, 4012, 4013, 4017, 4022, 4023, 4024, 4028,
4034, 4053, 4062, 4064, 4070, 4071, 4072, 4081, 4105, 4110,
4117, 4121, 4149, 4167, 4169, 4199, 4230, 4249, 4274, 4276,
4280, 4293, 4296, 4302, 4303, 4413, 4434, 4462, 4467, 4473,
4493, 4498, 4515, 4539, 4570, 4575, 4608, 4610, 4613, 4643,
4644, 4645, 4667, 4737, 4756, 4762, 4830, 4892, 4899, 4928,
4939, 4980, 4981, 5011, 5024, 5046, 5158, 5201, 5226, 5298,
5301, 5346, 5713 and 5925 of 2021
COMMON ORDER:
This batch of Criminal Petitions under Section 482 Cr.P.C. are filed seeking quash of F.I.Rs. registered for the offences punishable under Sections 188, 269. 272, 273, 328, 420 r/w.34 of IPC; Sections 5(1), 6(a), 6(b), 7, 20, 22, 24(1) 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 "COTPA"); Sections 55, 57, 57(2), 58 and 59 of the Food Safety and Standards Act, 2006, (for short, the "FSS Act"); Sections 34(1)(i), 34(a) of the A.P. Excise Act and Sections 7(A) r/w.8(E) of the A.P. Prohibition Act; and under Sections 8(a), 8(c) r/w. 20(b)(ii),(B) of the Narcotic Drugs and Psychotropic Substances Act, (for short, the "NDPS Act").
2
CMR, J.
Crl.P.No.2966 of 2021 & batch
2. For the sake of convenience, the F.I.Rs. registered only for the offences under the I.P.C., FSS Act and COTPA are shown in the following Table-I. The F.I.Rs. registered for the offences under IPC, FSS Act and COTPA, along with A.P. Excise Act and A.P.Prohibition Act are shown in Table-II and the F.I.Rs. registered for the offences under IPC, FSS Act and COTPA alongwith NDPS Act are shown in Table-III.
TABLE-I (Cases under IPC, COTP Act and FSS Act) Sl. Crl. Crime No. & Array of Offences Nature of No. Petition Name of P.S. accused allegedly offence No. committed
1) 2966 of Cr.No.63 of A1 & A2 U/Secs.188, Transportation 2021 2021 of 273 r/w. 34 of banned Halaharvi P.S., of IPC gutka, pan Kurnool Dt. masala packets
2) 3636 of Cr.No.163 of Sole U/Secs.269, Transportation 2021 2021 of accused 270, 273 and of Khaini and Gudiwada I 328 of IPC Gutka packets.
Town P.S.,
Krishna District
3) 3649 of Cr.No.439 of Sole U/Ss.188, Sale and
2021 2021 of accused 269 of IPC; transportation
Kancharapalem Sec.6(a), 6(b) of Gutka and
P.S., r/w. 24(1) of other banned
Visakhapatnam COTP Act tobacco
District. products.
4) 3665 of Cr.No.128 of Sole U/Ss.188, Sale of Gutka
2021 2021 of accused 273 of IPC; and other
Gurazala Town Sec.57(2), 58 banned
P.S., Guntur Dt. of FSS Act; tobacco
and products.
Sec.25(1),5(1)
of COTP Act.
5) 3678 of Cr.No.75 of A1 & A2 U/Ss.272, Sale of Gutka
2021 2021 of 273 of IPC; and other
Naidupet P.S., Secs.20(1), 22 banned
SPSR Nellore r/w.5(1) of tobacco
District. COTP Act. products.
6) 3680 of Cr.No.380 of Sole U/Ss.272, Sale of Gutka
2021 2020 of accused 273 of IPC; and other
Naidupet P.S., Sec.20(1), 22 banned
SPSR Nellore r/w.5(1) of tobacco
District. COTP Act. products.
7) 3682 of Cr.No.128 of A-1 U/Ss.272, Possession of
2021 2021 of 273 of IPC; banned
Naidupet P.S., Sec.20(1), 22 tobacco
SPSR Nellore r/w.5(1) of products.
District. COTP Act.
8) 3687 of Cr.No.137 of A1 to A4 U/Ss.188, Transportation
3
CMR, J.
Crl.P.No.2966 of 2021 & batch
2021 2021 of 273 r/w.34 of of Gutka
Mydukur P.S., IPC; Sec.20(2) packets.
YSR Kadapa of COTP Act.
District.
9) 3690 of Cr.No.189 of A1 to A3 U/S.20(2) of Possession and
2021 2021 of Martur COTP Act. sale of banned
P.S., Prakasam tobacco
District. products.
10) 3694 of Cr.No.186 of A1 to A3 U/Ss.188, Manufacture
2021 2021 of Badvel 272, 273 and
U/G P.S., YSR r/w.34 of IPC; transportation
Kadapa District. Secs.7 and 20 of tobacco
of COTP Act. products
without any
label.
11) 3703 of Cr.No.465 of A2 U/Ss.286, Sale of
2021 2020 of 420 of IPC; prohibited
Pedakakani Secs.20(1) tobacco
P.S., Guntur r/w.7(2) of products and
Urban COTP Act. possession of
crackers
without any
license.
12) 3709 of Cr.No.6 of 2021 Sole U/Ss.272, Possession,
2021 of accused 273 of IPC; distribution
Varikuntapadu Secs.20(2), 22 and sale of
P.S., SPSR r/w.5(1) of Gutka packets.
Nellore District. COTP Act.
13) 3711 of Cr.No.197 of A1 to A4 U/Ss.188, Sale of Gutka
2021 2021 of 272, 273, and Khani
Narasaraopet 328, 420 of packets.
Rural P.S., IPC;
Guntur District. Secs.7(1), 7(3)
and 20(1) of
COTP Act.
14) 3721 of Cr.No.101 of Sole U/Ss.188, Possession and
2021 2021 of Durgi accused. 272, 273, sale of Khaini
Police Station, 328, 420 of and pan
Guntur District. IPC; Secs. masala tobacco
57(1), 63 of banned
FSS Act. products.
15) 3722 of Cr.No.89 of A1 to A3 U/Ss.188 and Purchase and
2021 2021 of 273 of IPC; sale of banned
Korisapadu Secs. 58, 59, tobacco
P.S., Prakasam 63 of FSS products.
District. Act.
16) 3726 of Cr.No.256 of A1 to A4 U/Ss.188, Possession and
2021 2021 of Panyam 273 r/w.34 of transportation
P.S., Kurnool IPC; Sec.59(i) of banned
District. of FSS Act. tobacco
products.
17) 3727 of Cr.No.302 of Sole U/Ss.188, Possession and
2021 2021 of accused 269 of IPC; sale of Khani
Bhimunipatnam Secs. 6(a), packets to
Police Station, 6(b) of COTP below 18 years
Visakhapatnam Act. old near
District. Schools.
18) 3747 of Cr.No.188 of Sole U/Ss.188, Purchase,
2021 2021 of Tenali I accused 272, 273, 420 possession and
Town P.S., of IPC; sale of banned
Guntur District. Secs.56, tobacco
4
CMR, J.
Crl.P.No.2966 of 2021 & batch
57(1), 63 of products.
FSS Act
19) 3749 of Cr.No.211 of A1 to A3 U/Secs.273, Manufacture,
2021 2021 of 328 r/w.34 of possession and
Hindupur Rural IPC; Secs.5(1)sale of Gutka
U.P.S., r/w. 22 of and other
Anantapur COTP Act; banned
District. tobacco
packets.
20) 3755 of Cr.No.151 of A-2 U/Ss.270, Possession and
2021 2021 of 272, 273, 328 sale of banned
Guntakal Rural r/w.34 of IPC tobacco
P.S., Anantapur products.
District.
21) 3792 of Cr.No.273 of A1 & A2 U/Ss.188, Possession of
2021 2021 of 273 r/w.34 of banned
Atmakur (Kur) IPC; Secs.55, tobacco
P.S., Kurnool 59(i) of FSS products.
District. Act.
22) 3794 of Cr.No.150 of Sole U/Ss.188, Possession of
2021 2021 of Badvel accused. 272, 273 banned
U/G I, YSR r/w.34 of IPC; tobacco
Kadapa District. and Secs.7 products.
and 20 of
COTP Act.
23) 3822 of Cr.No.352 of A1 to A4 U/Ss.269, Possession of
2021 2020 of Palakol 273 r/w.34 of tobacco and
Town P.S., West IPC; Sec.22 of other banned
Godavari COTP Act. products.
District.
24) 3824 of Cr.No.221 of Sole U/Ss.188, Possession of
2021 2020 of accused 270, 273 IPC banned
R.B.Puram P.S., and Section 3 tobacco
Vizianagaram of the products.
Dt. Epidemic
Diseases Act
25) 3825 of Cr.No.06 of A-1 to U/Ss.273, Transportation
2021 2021 of A-3 336 r/w 34 and sale of
Palakollu Town IPC banned
P.S., West tobacco
Godavari Dt. products
26) 3850 of Cr.No.77 of Sole U/Ss.272, Possession and
2021 2020 of accused 273 IPC, and sale of Gutka
Kandaleru P.S., Sec.59(i) of products
SPSR Nellore FSS Act
Dt.
27) 3858 of Cr.No.90 of A-1 to U/S.273 IPC
Transportation
2021 2021 of A-5 and Sec. 5(1)
and possession
Pendlimarri of COTP Act
of Gutka and
P.S., YSR other banned
Kadapa Dt. tobacco
products.
28) 3859 of Cr.No.431 of A-1 and U/Ss.270, Possession of
2021 2020 of A-2 273 IPC and banned
Narasannapeta Sec.20(2) of tobacco
P.S., COTP Act products
Srikakulam Dt.
29) 3861 of Cr.No.54 of Sole U/Ss.272, Possession of
2021 2021 of accused 273 IPC; and banned
Indukurpeta Secs.22, 23 tobacco
P.S., SPSR r/w 5(1) of products
5
CMR, J.
Crl.P.No.2966 of 2021 & batch
Nellore Dt. COTP Act
30) 3864 of Cr.No. 41 of A-1 and U/S.273 IPC; Possession and
2021 2019 of A-2 and Sec.59(i) transportation
Gangavaram of FSS Act of tobacco
P.S., Chittoor products
Dt.
31) 3890 of Cr.No.89 of Sole U/Ss.269, Possession and
2021 2021 of accused 271, 272, 273 sale of banned
Kakinada III IPC; and Sec. tobacco
Town P.S., East 5(1) of COTP products
Godavari Dt. Act
32) 3892 of Cr.No.381 of A-1 to U/Ss.188, Possession and
2021 2021 of III Town A-3 269, 270, 273 sale of banned
P.S., IPC; and tobacco
Visakhapatnam Sec.6(a) of products
Dt. COTP Act
33) 3897 of Cr.No.292 of A-1 and U/Ss.272, Possession of
2021 2021 of Nellore A-2 273 IPC; and tobacco
Rural P.S, SPSR Sec.22 r/w products
Nellore Dt. 5(1) of COTP
Act
34) 3904 of Cr.No.111 of A-1 and U/Ss.188, Possession and
2021 2021 Krosuru A-2 272, 273 r/w sale of Gutka
P.S., Guntur 34 IPC; and
Dt. Secs.58, 59,
63 of FSS Act
35) 3907 of Cr.No.155 of Sole U/Ss.188, Possession and
2021 2021 Nadendla accused 273 IPC and sale of banned
P.S, Guntur Dt. Secs.7(1),7(3), tobacco
20(2) of COTP products
Act
36) 3924 of Cr.No.290 of A-1 to U/Ss.272, Possession of
2021 2021 of Nellore A-3 273 IPC; and banned
Rural P.S, SPSR Secs.22 r/w tobacco
Nellore Dt. 5(1) of COTP products
Act
37) 3926 of Cr.No.273 of A-1 and U/Ss.188, Possession and
2021 2021 of A-2 273 r/w 34 transportation
Atmakur(Kur) IPC; and of banned
P.S, Kurnool Secs. 55, 59(i) tobacco
Dt. of FSS Act products
38) 3946 of Cr.No.236 of A-1 and U/Ss.188, Possession and
2021 2021 of A-2 272, 273, 420 transportation
Prathipadu P.S, r/w 34 of IPC of banned
Guntur Urban tobacco
Dt. products
39) 3947 of Cr.No.150 of A-1 to U/Ss.188, Possession of
2021 2021 Velgodu A-3 273 r/w 34 Gutka
P.S, Kurnool IPC; and Sec. products
Dt. 59(i) of FSS
Act
40) 3989 of Cr.No.208 of A-1 to U/Ss.188, Possession and
2021 2021 of A-3 273 r/w 34 of transportation
Mydukur U/G IPC; Secs.7, of banned
P.S, YSR 20(2) of COTP tobacco
Kadapa Dt. Act products
41) 4012 of Cr.No.78 of A-1 and U/Ss.120-B, Possession and
2021 2021 Nagaram A-2 188, 272, sale of Gutka
P.S, Guntur Dt. 273, 420 r/w and Tobacco
34 of IPC; products
Secs.7(2),7(3),
6
CMR, J.
Crl.P.No.2966 of 2021 & batch
20(2) COTP
Act
42) 4013 of Cr.No.20 of A-1 and U/Ss.188, Possession and
2021 2021 of A-2 273, 420 r/w sale of Gutka
Nallapadu P.S, 34 of IPC; and Tobacco
Guntur Dt. Secs.58, 63 of products
FSS Act.
43) 4017 of Cr.No.118 of A-1 and U/Ss.270, Possession and
2021 2021 of A-2 272, 273 of sale of Gutka
Duggirala P.S, IPC and Tobacco
Guntur Dt. products
44) 4022 of Cr.No.117 of A-1 and U/Ss.272, Possession and
2021 2021 of A-2 273 of IPC sale of Gutka
Duggirala P.S, and Tobacco
Guntur Dt. products
45) 4023 of Cr.No.239 of Sole U/Ss.269, Transportation
2021 2021 of accused 270, 273, 328 of Gutka and
Gudivada I of IPC Tobacco
Town P.S, products
Krishna Dt.
46) 4024 of Cr.No.745 of A-1 and U/Ss.269, Possession and
2021 2020 of A-2 270, 271, 273 sale of Gutka
Nandigama P.S, r/w 34 IPC; and Tobacco
Krishna District and Secs.5(1), products
22 of COTP
Act
47) 4028 of Cr.No.181 of A-1 to U/Ss.188, Possession and
2021 2021 of A-3 272, 273, 420 sale of Gutka
Sattenapalli r/w 34 IPC; products
Rural P.S, and Secs.58,
Guntur Dt. 59, 63 of FSS
Act.
48) 4034 of Cr.No.49 of A-1 to U/Ss.24(1) of Possession and
2021 2021 of Irala A-4 COTP Act sale of Gutka
P.S, Chittoor and Tobacco
Dt. products
49) 4053 of Cr.No.284 of A-1 to U/Ss.188, Possession of
2021 2021 of II Town A-3 269, 273 IPC; Gutka and
P.S, and Sec.6(a) Tobacco
Visakhapatnam of COTP Act products
City
50) 4070 of Cr.No.564/2021 A-1 and U/Ss.188, Possession of
2021 of Tadepalli P.S, A-2 272, 273, 284 Tobacco
Guntur Urban r/w 34 IPC products
Dt.
51) 4071 of Cr.No.204/2021 Sole U/Ss.188, Possession of
2021 of Tadepalli P.S, accused 272, 273, 284 Tobacco
Guntur Dt. IPC; and products
21(1) COTP
Act
52) 4081 of Cr.No.187 of A1 & A2 U/Sec.20(2) Possession of
2021 2021 of of COTP Act banned
Yerragonda tobacco
Palem P.S., products.
Prakasam Dt.
53) 4105 of Cr.No.239 of A1 & A2 U/Ss.188, Transportation
2021 2021 of Tenali 272, 273 and of banned
III Town P.S., 420 r/w.34 of tobacco
Guntur District. IPC; Sec.20(2) products.
of COTP Act
54) 4110 of Cr.No.52 of Sole U/Ss.272, Sale of gutka
7
CMR, J.
Crl.P.No.2966 of 2021 & batch
2021 2021 of accused 273 IPC; and other
Muttukur P.S., Sec.22 banned
SPSR Nellore r/w.5(1) of tobacco
District. COTP Act. products.
55) 4117 of Cr.No.331 of A-1 U/Ss.271, Possession,
2021 2021 of 273, 328 IPC; transportation
Nawabpet P.S., Sec.22, 23 and sale of
SPSR Nellore r/w.5(1) of banned
District. COTP Act. tobacco
products.
56) 4121 of Cr.No.105 of A1, A2 U/Ss.272, Possession and
2021 2021 of and A4 273 of IPC; transportation
Kothuru P.S., Secs.20(2), of banned
Srikakulam 22(b) of COTP tobacco
District. Act products.
57) 4167 of Cr.No.119 of Sole U/Ss.188, Sale and
2021 2021 of Thallur accused. 273 of IPC storing of
P.S., Prakasam and Sec.20(2) banned gutka
Dt. of COTP Act. packts.
58) 4169 of Cr.No.106 of Sole U/Ss.188, Sale of gutka
2021 2021 of Badvel accused 272, 273 of and banned
U/G P.S., IPC; Secs.7 tobacco
Kadapa District. and 20 of products.
COTP Act.
59) 4199 of Cr.No.166 of A1 & A2 U/Ss.188, Transportation
2021 2021 of 269 of IPC; of banned
Pusapatirega Sec.5(1) tobacco
P.S., r/w.22 of products.
Vizianagaram COTP Act.
District.
60) 4230 of Cr.No.330 of Sole U/Ss.272, Possession of
2021 2020 of accused 273 of IPC; gutka and
Kodavalur P.S., Ss.22, 23 banned
SPSR Nellore r/w.7(1) of tobacco
Dist. COTP Act. products.
61) 4249 of Cr.No.216 of A1 & A2 U/Ss.188, Possession of
2021 2021 of Tenali I 272, 273 gutka and
Town I., Guntur r/w.34 of IPC; banned
District. Sec.20(2) of tobacco
COTP Act. products.
62) 4274 of Cr.No.239 of Sole U/Ss.272, Sale of banned
2021 2020 Kodavalur accused 273, 328 of tobacco
P.S., SPSR IPC products.
Nellore Dist.
63) 4276 of Cr.No.386 of Sole U/Ss.272 and Sale and
2021 2021 of Old accused 273 of IPC possession of
Guntur P.S., banned
Guntur Urban. tobacco
products.
64) 4280 of Cr.No.238 of Sole U/Ss.272, Sale of Gutka
2021 2020 of accused 273 and 328 and banned
Kodavaluru I, of IPC tobacco
SPSR Nellore products.
District.
65) 4293 of Cr.No.208 of A1 to A4 U/Ss.188, Sale of banned
2021 2021 of Tenali 272, 273 tobacco
Rural P.S., r/w.34 of IPC. products.
Guntur District.
66) 4296 of Cr.No.192 of A1 & A2 U/Ss.188, Sale of banned
2021 2021 of Tenali 272 and 273 tobacco
Rural I, Guntur r/w.34 of IPC products.
8
CMR, J.
Crl.P.No.2966 of 2021 & batch
District.
67) 4413 of Cr.No.107 of A-2 U/Ss.188, Sale of banned
2021 2021 of Vemuru 272, 273, 420 tobacco
P.S., Guntur of IPC; and products.
Dist. Sec.20(2) of
COTP Act.
68) 4434 of Cr.No.123 of Sole U/Ss.188, Sale and
2021 2021 of accused 273 of IPC despatch of
B.Mattam P.S., banned
YSR Kadapa tobacco
District. products.
69) 4462 of Cr.No.253 of Sole U/Ss.7(1), Sale of Gutka
2021 2021 of accused 7(3) and 20(1) and other
Narasaraopet of COTP Act banned
Rural P.S., tobacco
Guntur District. products.
70) 4467 of Cr.No.210 of Sole U/Ss.188, Possession of
2021 2021 of accused 272, 273, 328 Gutka packets.
Vinukonda and 420 of
Town P.S., IPC
Guntur District.
71) 4473 of Cr.No.215 of A-2 U/Ss.188, Sale of Gutka
2021 2021 of 272, 273, 328 and other
Vinukonda and 420 banned
Town P.S., r/w.34 of IPC tobacco
Guntur District. products.
72) 4515 of Cr.No.254 of A1 to A3 U/Ss.188, Possession and
2021 2021 of Badvel 272, 273 sale of banned
U/G Police r/w.34 of IPC; tobacco
Station, YSR Secs.7 & 20 products.
Kadapa District. of COTP Act.
73) 4539 of Cr.No.225 of A1 to A3 U/Ss.188, Sale of tobacco
2021 2021 of Inkollu 273 of IPC; products
P.S., Prakasam Secs.24(1) of without
District. COTP Act. license.
74) 4570 of Cr.No.141 of A1 to A3 U/Ss.188, Purchase and
2021 2021 of 273 r/w.34 of sale of Gutka,
Khajipet P.S, IPC; Secs.7(1) Khaini and Pan
YSR Kadapa and 20(2) of Masala
District. COTP Act packets.
75) 4575 of Cr.No.412 of A1 and U/Ss.270, Transportation
2021 2021 of A2 273, 420 of and sale of
Chilakaluripeta IPC; Secs.56, banned
Town Police 57(1), 63 of tobacco
Station, Guntur FSS Act. products.
District.
76) 4608 of Cr.No.178 of Sole U/Ss.188, Purchase and
2021 2021 of Tenali I accused 272, 273, 420 sale of banned
Town P.S., of IPC; tobacco
Guntur District. Secs.56, products
57(1), 63 of
FSS Act.
77) 4610 of Cr.No.338 of A1 & A2 U/Ss.272, Possession of
2021 2021 of Nellore 273 of IPC; banned
Rural P.S., Secs.22 tobacco
SPSR Nellore r/w.5(1) of products.
District. COTP Act.
78) 4613 of Cr.No.113 of Sole U/Ss.272, Sale of banned
2021 2021 of accused 273 of IPC; tobacco
Marripadu (D.C. Secs.20(2), 22 products.
Palli) P.S, SPSR r/w.5(1) of
9
CMR, J.
Crl.P.No.2966 of 2021 & batch
Nellore District. COTP Act.
79) 4643 of Cr.No.259 of A1 & A2 U/Ss.188, Possession and
2021 2021 of 273 r/w.34 of sale of banned
Halaharvi P.S., IPC. tobacco
Kurnool products.
District.
80) 4644 of Cr.No.82 of Sole U/Ss.272, Sale of banned
2021 2021 of Kaluvoy accused 273 of IPC; tobacco
Police Station, Secs. 20(1), products.
SPSR Nellore 22 r/w.5(1) of
District. COTP Act
81) 4645 of Cr.No.331 of A2 U/Ss.271, Possession,
2021 2021 of 273, 328 of transportation
Nawabpet P.S., IPC; Secs.22, and sale of
SPSR Nellore 23 r/w.5(1) of banned
District. COTP Act. tobacco
products.
82) 4667 of Cr.No.196 of Sole U/Ss.188, Manufacture,
2021 2021 of accused 273 of IPC; possession and
Holagunda P.S., Sec.55 of FSS sale of Gutka,
Kurnool Act. Pan masala
District. and other
banned
tobacco
products.
83) 4737 of Cr.No.200 of A1 and U/Ss.272, Cheating and
2021 2021 of Repalle A2 273, 420 of adulteration of
Town P.S., IPC; noxious food
Guntur District. Secs.7(1), intended for
7(3), 20(2) of sale and sale of
COTP Act. banned
tobacco
products.
84) 4756 of Cr.No.405 of Sole U/Ss.269, Possession of
2021 2021 of Lalapet accused 272, 273 of banned Gutka
P.S., Guntur IPC; Ss.5(1), and khaini
District. 22 of COTP packets.
Act.
85) 4762 of Cr.No.3 of 2021 A-1 U/Ss.188, Possession of
2021 of Krosuru P.S., 273, 420 banned
Guntur District. r/w.34 of IPC; tobacco
Secs.58, 59, products.
63 of FSS
Act.
86) 4830 of Cr.No.161 of A1 & A2 U/Ss.188, Transportation
2021 2021 of Parigi 273, 328 of and possession
P.S.,Anantapur IPC; and of banned
District. Sec.5(1) of tobacco
COTP Act. products.
87) 4892 of Cr.No.284 of A1 to A5 U/Ss.188 & Possession and
2021 2021 of 273 r/w.34 of distribution of
Mydukur U/G IPC; Ss.7 banned
P.S, YSR r/w.20 of tobacco
Kadapa District. COTP Act. products.
88) 4899 of Cr.No.32 of Sole U/Ss.188, Sale of banned
2021 2020 of accused 270, 273, 420 tobacco
Battiprole of IPC; Ss.56, products.
P.S.,Guntur 57(1), 63 of
District. FSS Act
89) 4928 of Cr.No.3 of 2021 A-2 U/Ss.272, Transportation
2021 of Chittamuru 273 of IPC; and possession
10
CMR, J.
Crl.P.No.2966 of 2021 & batch
Police Station, U/Ss.20(2), of banned
SPSR Nellore 22 r/w.5(1) of tobacco
District. COTP Act. products.
90) 4939 of Cr.No.162 of Sole U/S.271 of Possession and
2021 2021 of Salur accused IPC; and sale of banned
Town P.S., U/Ss.5(1) tobacco
Vizianagaram r/w.22 of products.
District. COTP Act.
91) 4980 of Cr.No.430 of One of U/Ss.188, Possession of
2021 Lalapet P.S., the 269, 272, 273 prohibited
Guntur District. suspect of IPC; tobacco
Sec.51(A) of products.
Disaster
Management
Act, 2005;
Secs.58, 59,
63 of FSS Act
and Sec.3 of
Epidemic
Diseases Act,
1987.
92) 4981 of Cr.No.414 of One of U/Ss.188, Possession of
2021 2020 of Lalapet the 269, 272, 273 prohibited
P.S., Guntur suspect. of IPC; tobacco
District. Sec.51(a) of products.
Disaster
Management
Act, 2005;
Secs.58, 59,
63 of FSS Act
and Sec.3 of
Epidemic
Diseases Act,
1987.
93) 5011 of Cr.No.246 of A1 & A2 U/Ss.188, Transportation,
2021 2020 of Gudur 272, 273 of possession and
® P.S, SPSR IPC; Sec.59(i) sale of banned
Nellore District. of FSS Act. tobacco
products.
94) 5024 of Cr.No.4 of 2021 Sole U/Ss.188, Sale of banned
2021 of B.Kodur P.S., accused 272, 273 of tobacco
YSR Kadapa IPC; Ss.7, 20 products.
District. of CTTP Act.
95) 5046 of Cr.No.227 of A1 & A2 U/Ss.272, Sale of banned
2021 2021 of 273 of IPC; tobacco
Vatticherukuru Sec.22(a) of products.
P.S., Guntur COTP Act.
Urban.
96) 5158 of Cr.No.127 of Sole U/Ss.7(1), Sale of banned
2021 2021 of accused 7(3) and 20(2) tobacco
Nadendla P.S., of COTP Act products.
Guntur District.
97) 5201 of Cr.No.87 of Sole U/Ss.272, Possession and
2021 2021 of accused 273 of IPC; transportation
Chittamuru Ss.20(2), 22 of banned
P.S., SPSR r/w.5(1) of tobacco
Nellore District. COTP Act. products.
98) 5226 of Cr.No.837 of A1 & A2 U/Ss.188 Possession of
2021 2020 of 272, 273, 284 banned
Tadepalli P.S., r/w.34 of IPC tobacco
Guntur District. and Section products.
21(1) of COTP
11
CMR, J.
Crl.P.No.2966 of 2021 & batch
Act.
99) 5298 of Cr.No.15 of Sole U/Ss.188, Possession of
2021 2021 of accused 272, 273, 420 banned
Tsundur P.S., of IPC; tobacco
Guntur District. Ss.57(1), 58, products.
59, 63 of FSS
Act.
100) 5301 of Cr.No.189 of A-1 U/Secs.272, Possession of
2021 2020 of 273, 328 of banned
Chittamuru IPC; Ss.22, tobacco
P.S., SPSR 23 r/w.5(1) of products.
Nellore District. COTP Act.
101) 5346 of Cr.No.516 of A1 & A2 U/Sec.420 of Possession of
2021 2021 of IPC; and banned
Pattabhipuram Sec.20(2) of tobacco
P.S., Guntur COTP Act. products.
District.
102) 5713 of Cr.No.664 of Sole U/Secs.270, Possession of
2021 2020 of accused 273 of IPC banned
Vijayawada I and Secs.5(1) tobacco
Town P.S., r/w.22 of products.
Krishna COTP Act.
District.
103) 5925 of Cr.No.313 of Sole U/Secs.188, Possession of
2021 2020 of accused 272, 273 IPC; banned
Sullurpet P.S., Sec.59(i) of tobacco
SPSR Nellore FSS Act. products.
District.
TABLE-II
(Cases under I.P.C, COTP Act, FSS Act, A.P. Excise Act and A.P. Prohibition Act) Sl. Crl. Crime No. & Array of Offences Nature of No. Petition Name of P.S. accused allegedly offence No. committed
1) 3660 of Cr.No.117 of Sole U/Ss.188, Possession of 2021 2021 of Adoni I accused 273 of IPC, banned Town P.S., Sec.55 of FSS tobacco Kurnool Act; and packets and District. Sec.34(a) of Karnataka A.P. Excise State liquor.
Act.
2) 3661 of Cr.No.145 of Sole U/Ss.188, Sale of banned 2021 2021 of accused 273 of IPC; noxious and Banaganapalli Sec.59(1) of tobacco P.S., Kurnool FSS Act; and products and District. Sec. 34(a) of Karnataka A.P. Excise State liquor.
Act
3) 3670 of Cr.No.164 of Sole U/Ss.188, Sale of banned
2021 2021 of accused 269, 270, 273 tobacco
Vuyyuru Town of IPC; products and
P.S., Sec.51(b) of illegal sale of
Vijayawada DMA, 2005; liquor.
City, Krishna Sec.5(1)
Dt. r/w.22, 6(b)
r/w.24(1) of
COTP Act and
Sec.34(a) of
A.P. Excise
12
CMR, J.
Crl.P.No.2966 of 2021 & batch
Act.
4) 3675 of Cr.No.83 of Sole U/Ss.188, Possession of
2021 2021 of accused 272, 273 of banned pan
Srikakulam I IPC; and masala
Town P.S, Sec.34(1)(i) of packets and
Srikakulam A.P. Excise liquor.
District. Act.
5) 3693 of Cr.No.292 of Sole U/Ss.188, Sale and
2021 2021 of accused 269, 328 of possession of
Kanchikacherla IPC; Sec.6(b) Khaini and
P.S., Krishna r/w.24(1) of Gutka packets
District. COTP Act; and and liquor.
Sec.34(a) of
A.P. Excise
Act.
6) 3706 of Cr.No.322 of Sole U/Ss.269, Sale and
2021 2021 of accused 328 of IPC; possession of
Kanchikacherla Secs.6(b) Khaini and
P.S., Krishna r/w.24(1) of gutka packets
District. COTP Act; and liquor.
Sec.34(a) of
A.P. Excise
Act.
7) 3724 of Cr.No.65 of A1 to A3 U/Ss.188, Possession
2021 2021 of 272, 273 of and
Pathapatnam IPC; transportation
P.S., Sec.34(1)(i) of of Khainee,
Srikakulam A.P. Excise Gutka packets
District. Act. and liquor
bottles.
8) 3752 of Cr.No.88 of A1 to A3 U/Ss.188, Possession of
2021 2021 of 272, 273 of Gutka and
Srikakulam I IPC; and other banned
Town P.S, Sec.34(1)(i) of tobacco
Srikakulam Dt. A.P. Excise products and
Act. liquor.
9) 3793 of Cr.No.273 of A-1 U/S.34(a) of Purchase,
2021 2021 Markapur A.P. Excise possession
Town P.S., Act and and sale of
Prakasam Sec.20(2) of Gutka and
District. COTP Act. other banned
tobacco
products and
liquor.
10) 3795 of Cr.No.62 of A1 to A3 U/Ss.270, Transportation
2021 2021 of 272, 273 of banned
Itchapuram r/w.34 of IPC; tobacco
Town P.S., Sec.20(2) of products and
Srikakulam COTP Act; and sale of liquor.
District. Sec.34(1)(i) of
A.P. Excise
Act.
11) 3823 of Cr.No.532 of Sole U/Secs.188, Possession
2021 2021 of J.R. accused 269, 270, 273 and sale of
Gudem P.S., IPC, Sec.34(a) banned
West Godavari of A.P. Excise tobacco
Dt. Act. products and
liquor.
12) 3842 of Cr.No.223 of A-2 U/Ss.188, Sale of banned
2021 2021 of Kurnool 273 r/w 34 tobacco
II Town P.S., IPC, Secs. 7(A) products and
13
CMR, J.
Crl.P.No.2966 of 2021 & batch
Kurnool Dt. r/w 8(E) of I.D. arrack
A.P.
Prohibition
act.
13) 3852 of Cr.No.250 of A-7 U/Ss.188, Transportation
2021 2021 of Kurnool 273 r/w 34 and
II Town P.S., IPC; and Secs. possession of
7A r/w 8E Gutka
A.P. products and
Prohibition liquor.
Act.
14) 3896 of Cr.No.146 of Sole Secs.20(2), Possession
2021 2021, Cumbum accused 24(1) r/w 6(a) and sale of
P.S, Prakasam of COTP Act; banned
Dt. and Sec.34(a) tobacco and
of A.P.Excise liquor
Act.
15) 3898 of Cr.No.156 of A-1 to U/S.20(2) of Possession of
2021 2021 of A-5 COTP Act and Gutka and
Yerragonda Sec.34(A)(i) of liquor
Palem P.S. A.P. Excise
Prakasam Dt. Act.
16) 4008 of Cr.No.366 of A-1 and U/Ss.270, Possession of
2021 2021 of A-2 273 r/w 34 Tobacco and
Gannavaram IPC and Sec. liquor
P.S, Krishna Dt. 34(a) of A.P.
Excise Act.
17) 4072 of Cr.No.366 of A1 to A7 U/Ss.270, Transportation
2021 2021 of 272, 273, 328 of banned
Guntakal I r/w.34 of IPC; tobacco
Town P.S., Secs.16, 24, products and
Anantapuramu 59(1) of FSS also
District. Act; and transporting
Sec.34(a) of Karnataka
A.P. Excise State liquor
18) 4149 of Cr.No.417 of Sole U/Ss.188, Sale and
2021 2021 of Kurnool accused 273 of IPC; possession of
IV Town P.S., Sec.59(i) of banned
Kurnool Dt. FSS Act; and tobacco
Sec.7(A) products and
r/w.8(E) of I.D. liquor.
A.P.
Prohibition
Act.
19) 4302 of Cr.No.147 of A-2 U/Ss.20(2), Distribution
2021 2021 of 24(1) r/w. 6(a) and sale of
Cumbum P.S., of COTP Act banned
Prakasam and Sec.34(a) tobacco
District. of A.P. Excise products and
Act. liquor.
20) 4303 of Cr.No.147 of A-1 U/Ss.20(2), Distribution
2021 2021 of 24(1) r/w. 6(a) and sale of
Cumbum P.S., of COTP Act banned
Prakasam and Sec.34(a) tobacco
District. of A.P. Excise products and
Act. liquor.
21) 4493 of Cr.No.234 of A1 & A2 U/S.273 of Possession
2021 2021 of IPC and and
Kukunoor P.S., Sec.34(a) of transportation
West Godavari A.P. Excise of banned
District. Act. tobacco
products and
14
CMR, J.
Crl.P.No.2966 of 2021 & batch
liquor.
22) 4498 of Cr.No.114 of A-1 U/Ss.272, Possession
2021 2021 of 273 of IPC and
Kothuru Police and transporta-
Station, Sec.34(1)(i) of tion of banned
Srikakulam A.P. Excise tobacco
District. Act. products and
liquor.
TABLE-III
(Cases under IPC, COTP Act, FSS Act and NDPS Act) Sl. Crl. Crime No. & Array of Offences Nature of No. Petition Name of P.S. accused allegedly offence No. committed
1) 3555 of Cr.No.137 of Sole U/Secs.188, Possession of 2021 2021 of accused 273 of IPC; prohibited Vetapalem P.S., Secs.58, 59, 63 tobacco Prakasam of FSS Act; products and District. Sec.20(2) of Ganja etc. COTP Act; and Sec.8(c) r/w.20(b),(ii),(B) of NDPS Act.
2) 3671 of Cr.No.97 of A-2 U/Ss.188, 272, Possession of
2021 2021 of Tekkali 273 of IPC; banned
P.S., Sec.20(b) tobacco
Srikakulam r/w.8(a) of products and
District. NDPS Act Ganja.
3) 3725 of Cr.No.236 of A-2 U/Ss.270, 273, Possession
2021 2021 of 328 r/w.34 of and sale of
Hanuman IPC; Secs.5(1), banned
Junction P.S., 22 of COTP Act; tobacco
Krishna and Secs.8(c), products and
District. 20(b) of NDPS ganja
Act.
4) 4062 of Cr.No.28 of A-9 to U/Ss.188, 273, Possession
2021 2020 of A-13 328, 420 r/w and
Nagarjunasagar 34 IPC; and transportation
P.S, Guntur Dt. Secs.20(b) r/w of Gutka,
8(c) of NDPS Tobacco and
Act, 57, 58, 63 Ganja
of FSS Act
5) 4064 of Cr.No.203 of A1 to U/Ss.270, 273 Possession
2021 2021 of A4 IPC;Secs.8(c) and sale of
Denduluru P.S, r/w.20(b)(ii)(C) Gutka,
West Godavari of NDPS Act banned
Dt. tobacco
products and
Ganja
3. Heard learned counsel for the petitioners and learned Public Prosecutor for the respondents State. 15
CMR, J.
Crl.P.No.2966 of 2021 & batch
4. All the above crimes shown in Table-I to Table-III were registered primarily on the ground that the products like Gutka, Pan Masala and tobacco are either being transported, sold or stored by the petitioners contrary to the provisions of the COTPA and FSS Act.
5. When the legal validity of registration of such sort of crimes under the provisions of IPC, COTPA and FSS Act was questioned before this Court in batch of cases, two co-ordinate Benches of this Court in Crl.P.No.3731 of 2018 and batch, as per judgment, dated 27.08.2018, and again in Crl.P.No.5421 of 2019 and batch, as per judgment, dated 18.12.2019 (Sri Jaganath Enterprises Eluru v. The State of A.P.), have held that „chewing tobacco‟ is not a „food‟ falling within the definition of „food‟ as defined in Section 3(1)(j) of the FSS Act and as such, the provisions of the FSS Act are not attracted and thereby quashed the F.I.Rs. registered for the said offences. However, in Crl.P.No.5421 of 2019 and batch, learned Judge held that prosecution for the offences punishable under Sections 5, 6, 7 and 10 of the COTPA can be launched, if it is found that the provisions of Sections 5, 6, 7 and 10 of the COTPA are not complied with.
6. Therefore, on the basis of the said judgments of the two coordinate benches of this Court whereby F.I.Rs. registered for the similar offences based on identical facts are quashed, the petitioners herein sought quash of all the F.I.Rs. in this batch of 16 CMR, J.
Crl.P.No.2966 of 2021 & batch cases on the ground that these are covered matters, in view of the aforesaid orders of the two co-ordinate benches of this Court which became final and that the petitioners, who are similarly placed, are also entitled for quash of the F.I.Rs.
7. Learned Public Prosecutor vehemently opposed for quash of the F.I.Rs for the offences registered under the FSS Act. He would submit that Section 3(1)(j) of the FSS Act defines „food‟ and as per the said definition, any substance, which is used as food, shall be construed as a food. He contends that since chewing tobacco would be chewed by the people and as the said chewing tobacco contains nicotine and other injurious substance and the juice produced on account of chewing the said tobacco which contain nicotine and other injurious substances mixes with the saliva and the person who chews the tobacco would swallow the said saliva containing the said nicotine and other injurious substances and it goes into his digestive system in the said process and as such, chewing tobacco shall also be construed as a substance of food. In support of his contention, he placed strong reliance on the Division Bench judgment of the Bombay High Court rendered in the case of Mohammad Yamin Naeem Mohammad v. State of Maharashtra1. So, he would submit that the earlier two benches of this Court did not take into consideration that the juice produced on account of chewing tobacco, which contains nicotine etc. would be swallowed by the person who is chewing 1 2021 SCC OnLine Bom 26 = 2021 Cri LJ 1811 17 CMR, J.
Crl.P.No.2966 of 2021 & batch it, and it will be taken into the digestive system. Therefore, he would submit that the two benches of this Court have held that chewing tobacco is not a food. He vehemently contended that it is to be held that chewing tobacco is also a food. Learned Public Prosecutor made a very strenuous effort to convince the Court that chewing tobacco clearly comes within the definition of „food‟ as defined under Section 3(1)(j) of the FSS Act. So, taking support from the view expressed by the Division Bench of the Bombay High Court in Mohammad Yamin Naeem Mohammad1, learned Public Prosecutor would submit that chewing tobacco would also fall within the definition of food as defined under Section 3(1)(j) of the FSS Act and the offences registered under the FSS Act cannot be quashed.
8. Learned Public Prosecutor opposed these Criminal Petitions only respect of the offences registered under the FSS Act stating that the said F.I.Rs. registered under the FSS Act cannot be quashed. He did not dispute with regard to correctness of the findings recorded by the two coordinate Benches of this Court that the facts of the case do not constitute any offences punishable under the provisions of the IPC and the COTPA, for which the F.I.Rs. are registered.
9. Therefore, the only controversy involved in this batch of Criminal Petitions is relating to the offences registered under the FSS Act and main controversy revolves round the issue 18 CMR, J.
Crl.P.No.2966 of 2021 & batch whether „chewing tobacco‟ falls within the definition of „food‟ as defined under Section 3(1)(j) of the FSS Act or not.
10. At the time of hearing these Criminal Petitions and when the matters are reserved for orders, only the said two judgments of the coordinate benches of this Court are prevailing. Subsequently, another learned single Judge of this Court in W.P.No.7336 of 2021 and batch, dated 21.09.2021, has taken a view that „chewing tobacco‟ falls within the definition of „food‟ under Section 3(1)(j) of the FSS Act. In arriving at the said conclusion, learned Judge relied on the ratio laid down by the Apex Court in the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange2 and Godawat Pan Masala Products I.P. Ltd. v. Union of India3, wherein it is held that „supari‟ and „pan masala‟ etc. would come within the definition of „food‟ under the Food Adulteration Act. Althoguh the said judgments are not rendered defining „food‟ as defined under Section 3(1)(j) of the FSS Act, learned Judge, while holding that the definition of „food‟ under the Food Adulteration Act and the definition of food under the FSS Act are almost similar, held that the ratio laid down in the aforesaid two judgments rendered under the Food Adulteration Act can be taken into consideration to hold that chewing tobacco also comes under the definition of food under the FSS Act.
2 (1974) 1 SCC 167 = 1974 SCC (Cri) 87 3 (2004) 7 SCC 68 19 CMR, J.
Crl.P.No.2966 of 2021 & batch
11. Thus, two coordinate benches of this Court held that chewing tobacco is not a food as defined under Section 3(1)(j) of the FSS Act and another coordinate Bench of this Court has recently taken a different view and held that chewing tobacco also comes within the definition of „food‟ under the FSS Act. However, the learned Judge, in view of the earlier view taken by the two coordinate benches of this Court, has referred the matter to the Division Bench of this Court.
12. Therefore, the only question that now arises for determination in this batch of Criminal Petitions before this Court is whether „chewing tobacco‟ falls within the definition of food as defined under Section 3(1)(j) of the FSS Act or not.
13. In order to resolve the said controversy and to appreciate the rival contentions of both the parties, it is expedient to extract the definition of food as contemplated under Section 3(1)(j) of the FSS Act. It reads thus:
" "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the 20 CMR, J.
Crl.P.No.2966 of 2021 & batch purposes of this Act having regards to its use, nature, substance or quality."
14. A meticulous reading of the aforesaid definition makes it manifest that the said provision is in three parts. The first part says that any substance, whether processed or partially processed or unprocessed, which is intended for human consumption, comes within the definition of food. The second part deals with inclusive definition and it says that primary food, as defined under clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used in the food during its manufacture and preparation would come within the definition of food. The third part deals with exclusion of certain substances. It excludes animal feed, live animals unless they are prepared or processed for placing on the market „for human consumption', plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotics or psychotropic substances etc.
15. Now, a careful reading of the aforesaid definition further makes it manifest that the predominant requirement to test whether a particular substance is food or not is to ascertain and see whether the substance is intended for human consumption or not. Therefore, the emphasis and stress is on the expression "which is intended for human consumption" used in the above definition. As per the said definition, and more particularly in view of the said expression „which is intended for 21 CMR, J.
Crl.P.No.2966 of 2021 & batch human consumption‟, every substance cannot be construed as food. It is only a substance „which is intended for human consumption‟ alone can be considered and construed as a substance of food. The expression "food" is defined in Lexicon as "a substance taken into the body to maintain life and growth". Therefore, the expression "intended for human consumption" in relation to food, in its general terms and in its popular sense is to be understood as a substance which is meant to be taken into the body to maintain life and growth or for sustenance of a human being.
16. Now, the paramount question to be ascertained is whether chewing tobacco is intended for human consumption or not. It is axiomatic that tobacco is not meant for human consumption as a food. It is not used as food. It is self evident and needs no evidence to hold that tobacco is not used as food and that it is also not intended for human consumption as food. Indubitably, therefore, tobacco cannot be considered as a substance of food. People do not eat tobacco either for their sustenance or for any other purpose of like nature. It is only a substance which is used as a stimulant to have a sort of thrill by a person chewing it. Therefore, chewing tobacco cannot be construed as a food as defined under Section 3(1)(j) of the FSS Act.
17. It is significant to note that even though the Parliament has included chewing gum within the inclusive definition of food under Section 3(1)(j) of the FSS Act, Parliament consciously and 22 CMR, J.
Crl.P.No.2966 of 2021 & batch deliberately did not include chewing tobacco within the inclusive definition of Section 3(1)(j) of the FSS Act. Chewing gum will be used as food or treated as a food by a person using the same, albeit it will be discarded after chewing it without taking into the digestive system. Therefore, as it is used as a food, it is defined as food under the aforesaid Section. As tobacco is not used as a food usually and even if it is chewed as it is only chewed as a stimulant and as it is not intended as a food by a person chewing the same, the Parliament did not choose to include it in the definition of food. That is the reason why the Parliament has very consciously used the expression "which is intended for human consumption" as a predominant requirement in the aforesaid definition. Tobacco can never be intended for human consumption as a food.
18. Even the user test can profitably be applied to ascertain whether tobacco is intended for human consumption or not. As tobacco is intended only to be chewed as a stimulant, it cannot be said under any stretch of reasoning or imagination that it is intended for human consumption as a food. Consumption means in the present context to eat and to take it within the digestive system as a food. The justification for considering the user test can also be seen from the proviso to Section 3(1)(j) of the FSS Act. The proviso says that the Central Government may by notification in the Official Gazette declare any other article as food having regard to its use, nature etc. So, user test is permissible under the aforesaid definition to ascertain 23 CMR, J.
Crl.P.No.2966 of 2021 & batch whether a particular substance is intended for human consumption or not.
19. Therefore, when the Parliament did not in express words include either tobacco or even the chewing tobacco within the definition of food, it is not permissible under law to add in the section or read into the section any extraneous substance to construe it as a food for the purpose of the FSS Act. It is well settled law that in interpreting a provision in the statute and more particularly, a provision relating to the definition, the object of the enactment shall always be borne in mind and interpretation must be inconsonance with the object and intention of the legislature. No attempt, in the process, shall be made to dilute the legislative intent and nothing can be added to the definition. More particularly, when the definition is a wider definition, with inclusive definition and exclusive definition, no attempt should be made to widen its scope by including some other substances, articles or commodities, into the definition contrary to the intention of the Parliament. As already noticed supra, had it been the intention of the legislation to include tobacco or its products or even the chewing tobacco within the definition of food under Section 3(1)(j) of the FSS Act, the Parliament would have specifically included it in the said definition. As the same is not included in it, it cannot be held that chewing tobacco is a food within the definition of Section 3(1)(j) of the FSS Act. 24
CMR, J.
Crl.P.No.2966 of 2021 & batch
20. It has been contended before this Court that as chewing gum is included in Section 3(1)(j) of the FSS Act, that nothing precludes the Court from including chewing tobacco also as food within the said definition as it stands on the same footing with that of chewing gum. The said contention is devoid of merit. Chewing gum is totally different from chewing tobacco. Chewing gum is basically treated as a food. It is intended for the said purpose, whereas chewing tobacco is not intended for human consumption as food and it is not used as food. Therefore, there is no merit in the contention of the learned Public Prosecutor that as chewing gum is included in the definition of food that chewing tobacco is also to be considered as food under the aforesaid definition.
21. In this context, it is apt to consider the ratio laid down by the Constitutional Bench of the Apex Court in the case of Sakhawat Ali v. State of Orissa 4. It provides a complete answer to the said contention. It is held as follows:
"The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution."
22. Thus, it is clear from the aforesaid ratio laid down by the Constitutional Bench, it is for the Legislature to decide as to 4 AIR 1955 SC 166 25 CMR, J.
Crl.P.No.2966 of 2021 & batch which substance/article/commodity is to be included within the definition and it need not be all embracing. Further, it is clear that merely that some substance or commodity, which stands on the same footing, is included in the definition that the other product which may stand on the same footing need not be included in the definition. Simply because it is not included in the definition, it cannot be held that by way of interpretation of the definition that other substance can be included in the said definition. As observed supra, it would be nothing but adding something to the definition which is not intended by the Parliament. Probably, as the Parliament found that chewing tobacco is not intended for human consumption as food and that it is not used as food or meant to be used as food, the Parliament has deliberately eliminated it and did not include it in the definition.
23. Now, it is relevant to consider the judgment of the Calcutta High Court rendered in the case of Sanjay Anjay Stores v. The Union of India5. It is a direct judgment on the FSS Act. It is also a direct judgment on the question whether tobacco and its products comes within the definition of food under the FSS Act or not. While considering the question whether the definition of food under the FSS Act includes tobacco and tobacco products, the Calcutta High Court held that they do not fall within the definition of food. At para.40 of the judgment, it is held as follows:
5
2017 SCC OnLine Cal 16323 26 CMR, J.
Crl.P.No.2966 of 2021 & batch "Although the definition of 'food' in FSSA is very wide and apparently includes any product that can be consumed by human beings, tobacco products, in my opinion, cannot be understood to be covered by the definition. Food as we have always understood means edibles including liquid food that is drunk rather than eaten, which has nutritional value. Food is a source of energy to human beings and indeed to all living creatures, to sustain life. Food cannot be meant to include stimulant like zarda or other tobacco products which temporarily stimulate the human body without infusing any nutrient. Such tobacco products appear to provide stimulant which is more psychological in my opinion rather than real. People who are used to taking such tobacco products experience a sudden surge of energy which is more psychological than real. Nobody in his right senses would say that cigarette or other tobacco products are food."
24. Incidentally held that in ITC Ltd. v. Agricultural Produce Market Committee6, the Apex Court, in the context of levy of taxes, observed that tobacco is not a food stuff.
25. Then at para.46, the Calcutta High Court held as follows:
"FSSA is a regulatory statute. It empowers the authority to regulate the manufacture, storage, distribution, sale and import of food products for human consumption. Such regulatory power does not authorize the authorities to prohibit the manufacture, etc. of tobacco or tobacco products even if the same can be called 'food'. Trade in tobacco is not impermissible in India. In Godawat Pan Masala (supra) the Apex Court held that tobacco or tobacco products are not res extra commercium. If consumption of tobacco or products containing tobacco or nicotine was considered to be so inherently dangerous for human health, the Parliament could have banned altogether trade and commerce in tobacco and tobacco products even in the face of Article 19(1)(g) of the Constitution of India. But the Parliament did not do so. It has instead chosen to regulate rather than prohibit trade and commerce in tobacco and tobacco products by promulgating COTPA. Hence, on the strength of a delegated legislation in the form of FSS Regulations framed under the FSSA, the authorities cannot seek to prohibit trade and 6 (2002) 9 SCC 232 27 CMR, J.
Crl.P.No.2966 of 2021 & batch commerce in the said products. That would be an exercise of a power that they do not have."
26. Following the aforesaid judgment, a single Judge of this Court in Crl.P.No.3731 of 2018 and batch held that chewing tobacco is not a food within the definition of Section 3(1)(j) of the FSS Act.
27. Thus, the view taken by two coordinate Benches of this Court and the view taken by the Calcutta High Court that chewing tobacco cannot be construed as a food within the definition of food under Section 3(1)(j) of the FSS Act, in my considered view, is more consistent and inconsonance with the intention of the Parliament in defining food under Section 3(1)(j) of the FSS Act. Holding that chewing tobacco is also a food would be nothing but reading something into the definition contrary to the intention of the Parliament and it would also be adding extraneous product or the substance to the definition.
28. A learned Judge of another single Bench, who differed with the earlier view taken by two coordinate Benches of this Court, solely relied on the interpretation given by the Apex Court in the case of Pyarali K. Tejani2 and Godawat Pan Masala Products I.P. Ltd.3 of the Apex Court in arriving at the conclusion that chewing tobacco would also come within the definition of food under Section 3(1)(j) of the FSS Act. The judgment of the Constitutional Bench in Pyarali K. Tejani2 is not directly on the issue under FSS Act. It could not be also, as the said judgment was rendered in the year 1973 and by that 28 CMR, J.
Crl.P.No.2966 of 2021 & batch time, the FSS Act was not brought into existence. FSS Act came into existence in the year 2006. So, the judgment in Pyarali K. Tejani2 case was rendered while interpreting the provisions of the Prevention Food Adulteration Act. It is significant to note that the question before the Constitutional Bench was not whether chewing tobacco is a food within the definition of the Prevention of Food Adulteration Act or not. The commodity involved in the said case before the Constitutional Bench was „supari‟. As „supari‟ is used as a food, the Constitutional Bench of the Apex Court held that it is a „food‟. It is relevant to note the observation of the Constitutional Bench made in para.14 of the judgment. It is held as follows:
"...We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely..."
29. Then, it is further held as follows:
"....The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the commonsense understanding of the word. The Act defines 'food' very widely as covering any article used as food and every component which enters into it, and even flavoring matter and condiments. It is commonplace knowledge that the word "food" is a very general term and applies to all that is eaten by man for nourishment and takes in subsidiaries. Is supari eaten with relish by man for taste and nourishment? It is. And so it is food. Without carrying further on this unusual argument we hold that supari is food within the meaning of Section 2(v) of the Act."
30. Thus, it is clear from the above judgment that the question before the Constitutional Bench was whether supari is 29 CMR, J.
Crl.P.No.2966 of 2021 & batch a food or not under the Prevention of Food Adulteration Act. As it is eaten as food by a man for nourishment and as the same is consumed by every ordinary man in houses, hotels, marriage parties and even routinely, it is construed as a food under the Prevention of Food Adulteration Act. The ratio laid down in the aforesaid judgment cannot be the basis for arriving at a conclusion as to whether chewing tobacco is also food or not. The reason is chewing tobacco is not used as a food by an ordinary man. It is not used as food by any person in houses, hotels, marriage parties and even routinely and generally. It is also not eaten by any man or woman for nourishment. Therefore, the ratio laid down in the aforesaid judgment cannot be made applicable to the present facts of the case to construe chewing tobacco also as a food. The facts of the case in the above judgment are very much distinguishable.
31. Even in the other case Godawat Pan Masala Products I.P. Ltd.3 also, that was also a case where the Court was dealing with the question whether pan masala and gutka are food or not. Whether tobacco or chewing tobacco is a food or not is not directly the issue fallen before the Apex Court. In arriving at a conclusion that pan masala and gutka are food, the Apex Court in Godawat Pan Masala Products I.P. Ltd.3 case solely relied on the ratio laid down in the above Pyarali K. Tejani2 case and held that since pan masala is eaten and as it is used for human consumption that it is a food. Incidentally, it is only held that the gutka contains tobacco as an ingredient. 30
CMR, J.
Crl.P.No.2966 of 2021 & batch So, the said judgment is not an authority to hold that chewing tobacco is a food under the FSS Act.
32. Therefore, as these two judgments arise out of the Prevention of Food Adulteration Act and as the Apex Court held that since supari and pan masala are intended for human consumption that they are food, in my considered view, the ratio laid down in the above two judgments cannot be applied to the present facts of the case to hold that chewing tobacco is also food as it is not intended for human consumption as food and as it is not eaten as a food.
33. Even though the inclusive definition under Section 3(1)(j) of the FSS Act shows that food containing such ingredients like primary food defined under clause (ZK) is also to be construed as food, it must be seen here that the said ingredients must be of a primary food and the substance in which the said ingredients are used must also be a food. Nicotine etc. which are available in tobacco are not primary food or genetically modified food or engineered food as defined in clause (ZK). Ingredients like primary food as defined in clause (ZK) will not be used in chewing tobacco. So, it does not fall even within the inclusive definition also.
34. Learned Public Prosecutor has taken me to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 and contends that the product should not contain any substance which is injurious to 31 CMR, J.
Crl.P.No.2966 of 2021 & batch health like tobacco and nicotine and the same shall not be used as ingredients in any food products. Therefore, he would submit that as nicotine would be available in chewing tobacco that it is to be considered as a food. There is absolutely no merit in the said contention. Regulation 2.3.4 of the Regulations, 2011 reads thus:
"2.3.4: Product not to contain any substance which may be injurious to health: Tobacco and nicotine shall not be used as ingredients in any food products."
35. In fact, this Regulation is in favour of the view taken by this Court. The Regulation says that tobacco and nicotine shall not be used as an ingredient in any food product. So, it clearly indicates that the Food Safety and Standards Authority of India which framed the said Regulations also did not consider tobacco as a food as it is stated that tobacco shall not be used as an ingredient in any food product. So, it is clear that they have considered tobacco as a separate entity different from a food product. They did not consider tobacco as a food product.
36. It is also relevant to note here that Section 59 of the FSS Act deals with punishment for sale, storage etc. of unsafe food. It reads thus:
"Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable,--
(i) ...
(ii) ...
(iii) ....
(iv) ...."32
CMR, J.
Crl.P.No.2966 of 2021 & batch
37. Here also the emphasis is on the article of food for human consumption. Therefore, the very expression used in all the relevant provisions "intended for human consumption" makes it abundantly clear that the intention of the Parliament is to only treat that substance or commodity which is intended for human consumption as food and not any other commodity or substance.
38. Therefore, for the foregoing reasons, while concurring with the view taken by the two coordinate benches of this Court, which held that chewing tobacco is not a food as defined under Section 3(1)(j) of the FSS Act, this Court holds that chewing tobacco is not a food within the definition of Section 3(1)(j) of the FSS Act.
39. As regards the view taken by another learned single Judge of this Court that chewing tobacco is food under Section 3(1)(j) of the FSS Act, I regret to express my inability to persuade myself to agree with the said view that chewing tobacco is a food within the definition of Section 3(1)(j) of the FSS Act.
40. Therefore, when the facts of the case do not constitute any offence under the provisions of the FSS Act, launching of criminal proceedings by way of registering F.I.Rs. relating to manufacture, sale, storage or transportation of the said chewing tobacco amounts to abuse of process of Court. Therefore, the F.I.Rs. registered for the said offences are liable to be quashed. 33
CMR, J.
Crl.P.No.2966 of 2021 & batch
41. Resultantly, Criminal Petition Nos.2966, 3636, 3649, 3665, 3678, 3680, 3682, 3687, 3690, 3694, 3703, 3709, 3711, 3721, 3722, 3726, 3727, 3747, 3749, 3755, 3792, 3794, 3822, 3824, 3825, 3850, 3858, 3859, 3861, 3864, 3890, 3892, 3897, 3904, 3907, 3924, 3926, 3946, 3947, 3989, 4012, 4013, 4017, 4022, 4023, 4024, 4028, 4034, 4053, 4070, 4071, 4081, 4105, 4110, 4117, 4121, 4167, 4169, 4199, 4230, 4249, 4274, 4276, 4280, 4293, 4296, 4413, 4434, 4462, 4467, 4473, 4515, 4539, 4570, 4575, 4608, 4610, 4613, 4643, 4644, 4645, 4667, 4737, 4756, 4762, 4830, 4892, 4899, 4928, 4939, 4980, 4981, 5011, 5024, 5046, 5158, 5201, 5226, 5298, 5301, 5346, 5713 and 5925 of 2021 are allowed quashing the F.I.Rs. (shown in Table-I) registered for the offences under the provisions of IPC, FSS Act and COTPA.
42. Criminal Petition Nos.3660, 3661, 3670, 3675, 3693, 3706, 3724, 3752, 3793, 3795, 3823, 3842, 3852, 3896, 3898, 4008, 4072, 4149, 4302, 4303, 4493 and 4498 of 2021 are partly allowed quashing the F.I.Rs. (shown in Table-II) registered for the offences punishable under the provisions of the IPC, FSS Act and COTPA alone. The Investigating Officers shall proceed with the investigation in relation to the offences punishable under the provisions of A.P. Excise Act and A.P. Prohibition Act relating to the F.I.Rs. shown in Table-II.
43. Criminal Petition Nos.3555, 3671, 3725, 4062 and 4064 of 2021 are partly allowed quashing the F.I.Rs. (shown in Table-III) 34 CMR, J.
Crl.P.No.2966 of 2021 & batch registered for the offences punishable under the provisions of the IPC, FSS Act and COPTA alone. The Investigating Officers shall proceed with the investigation in relation to the offences punishable under the provisions of NDPS Act relating to the F.I.Rs. shown in Table-III.
The miscellaneous petitions pending, if any, shall stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:28.12.2021.
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