IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WEDNESDAY ,THE TWENTIETH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL PETITION NO: 1914 OF 2024
Between:
1. Lagisetty Nagaraju, S/o L Rama subbaiah, age about 59 years R/o
House No. 35/81, Kammari Street, Kurnool city, Kurnool District.
2. Shik Jainullahbuddin, s/o Shik Abdul Munaf, age 30 years R/o 53/133,
Near King Market, Kurnool city, Kurnool District.
3. K. Guru Brahmam, S/o K. Kasaiah, age 36 years R/o House No. 27/95,
Pulla Reddy Gate, Chinna Market Kurnool city, Kurnool District.
...Petitioners/Accused 1 to 13
AND
The State of Andhra Pradesh , Through the SHO of Kurnool Taluka
UPS Kurnool District. Rep, by its Public prosecutor. High Court of
Andhra Pradesh At Amaravathi.
...Respondent/Complainant
Petition under Section 482 of Cr.P.C praying that in the
circumstances stated in the Memorandum of Grounds of Criminal Petition,
the High Court may be pleased to quash the proceedings in Charge sheet
in C.C. No. 69/2021 on the file of Special Judicial Magistrate of first Class
for Mobile Court at Kurnool, Kurnool District against the petitioner/accused
1 to 3 concern.
I.A. NO: 2 OF 2024
Petition under Section 482 of Cr.P.C praying that in the
circumstances stated in the Memorandum of Grounds of Criminal Petition,
the High Court may be pleased to stay the proceedings in charge sheet in
C.C. No. 69/2021 On the file of Special Judicial Magistrate of first Class
for Mobile Court at Kurnool, against the petitioners
concern.
«
This Petition coming on for hearing, upon perusing the
Memorandum of Grounds of Criminal Petition and upon hearing the
arguments of Sri D KASI RAO .Advocate for the Petitioner and of the
Additional Public Prosecutor on behalf of the Respondent.
The Court made the following: ORDER
HON'BLE SRI JUSTICE K. SREENIVASA REDDY
Criminal Petition No.1914 of 2024
Order:
This Criminal Petition, under Section 482 Cr.P.C., has been filed
on behalf of the Petitioners/A-1 to A-3, to quash the proceedings in CC
No.69 of 2021 on the file of the learned Special Judicial Magistrate of
First Class for Mobile Court, Kurnool, registered for the offences
punishable under Sections 188, 273, 328 IPC and Section 59(1) of the
Food Safety and Standards Act, 2006.
When the matter is taken up for hearing, it is submitted by the
2.
learned counsel for the petitioners and acceded to, by the learned
of this Criminal
Assistant Public Prosecutor that the subject matter
Petition is squarely covered by the common order passed by this Court
in Criminal Petition No.2966 of 2021 and batch, dated 28.12.2021,
wherein this Court held thus.
"Criminal Petition Nos.3555, 3671, 3725, 4062 and
4064 of 2021 are partly allowed quashing the FIRs
(shown in Table-Ill) 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
2
punishable under the provisions of NDPS Act relating to
the FIRS shown in Table-IIL"
Hence, following the said order passed by this Court in Criminal
3.
Petition No.2966 of 2021 and batch, dated 28.12.2021 and for the
allowed quashing
reasons mentioned therein, this Criminal Petition is
the proceedings in CC No.69 of 2021 on the file of the learned Special
Kurnool, against the
Judicial Magistrate of First Class for Mobile Court,
petitioners herein/A-1 to A-3 insofar as the offences punishable under
the provisions of the IPC and FSS Act.
As a sequel thereto, the miscellaneous applications, if any,
pending in this Criminal Petition shall stand closed.
SD/- U SRIDEVI
ASSISTANT REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
^ KurnoorDisthcf'^'^* Magistrate of First Class for
Mobile Court, Kurnool,
2. One CC to Sri. D Kasi Rao, Advocate [OPUC]
3. Two CCs to the Public Prosecutor, High Court of
A P at
Amaravati.[OUT]
4. Three CD Copies.
VNA
* Along with the copy of Order in CRLP 2966/21 & Batch
dt.28.12.2021
HIGH COURT
DATED:20/03/2024
ORDER
CRLP.No.1914 of 2024
\
ALLOWING THE CRLP
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 F.l.Rs. registered for the
offences
t
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(l)(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
I
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-Il and the F.I.Rs.
registered for the offences under IPC, FSS Act and
COTPA
alongwith NDPS Act are shown in Table-Ill.
TABLE-I
(Cases under IPC. COTP Act and FSS Act!
SI. 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.l88, 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.l63 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.l28 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(l),5(l)
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(l), 22 banned
SPSR Nellore r/w.5(l) 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(l), 22 banned
SPSR Nellore r/w.5(l) of tobacco
District. COTP Act. products.
7) 3682 of Cr.No.l28 of A-1 U/Ss.272, Possession of
2021 2021 of 273 of IPC; banned
Naidupet P.S., Sec.20(l), 22 tobacco
SPSR Nellore r/w.5(l) of products.
District. COTP Act.
8) 3687 of Cr.No.l37 of A1 to A4 U/Ss.188, Transportation
3
CMR, J.
Crl,P.No.2966 of 2021 & batch
I
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.l89 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.l86 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(l) of Gutka packets.
Nellore District. COTP Act,
13) 3711 of Cr.No.l97 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(l), 7(3)
and 20(1) of
COTP Act.
14) 3721 of Cr.No.lOl of Sole U/Ss.188, Possession and
2021 2021 of Durgi accused. 272, 273, sale of Khaiini
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., Kumool 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.l88 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.l51 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.l50 of Sole U/Ss.188, Possession of
2021 2021 of Badvel accused. 272, 273 banned
U/G 1, 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, Treinsportation
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
s
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.lll 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(l),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, Kumool 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 N agar am 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)
1.
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.ll8 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.ll7 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(l) 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(l) 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(l) of banned
District. COTP Act. tobacco
products.
56) 4121 of Cr.No.105 of Al, 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.l06 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.l66 of Al & A2 U/Ss.188, Transportation
2021 2021 of 269 of IPC; of banned
Pusapatirega Sec.5(l) 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(l) of tobacco
Dist. COTP Act products.
61) 4249 of Cr.No.216 of Al & 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 Al 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.l92 of Al & 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.
CrI,P.No.2966 of 2021 & batch
I
District.
67) 4413 of Cr.No.107 of A-2 U/Ss.188, Sale of banned
2021 2021 ofVemuru 272,273,420 tobacco
P.S., Guntur of IPC; and products.
Dist. Sec.20{2) of
COTP Act.
68) 4434 of Cr.No.l23 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(l), 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.l41 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.l78 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(l) of products.
District. COTP Act.
78) 4613 of Cr.No.ll3 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(l) 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(l) 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(l) of banned
District. COTP Act. tobacco
products.
82) 4667 of Cr.No.l96 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(l), 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(l), 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 86 A2 U/Ss.188, Transportation
2021 2021 of Parigi 273, 328 of and possession
P.S.,Anantapur IPC; and of banned
District. Sec.5(l) of tobacco
COTP Act. products.
87) 4892 of Cr.No.284 of A1 to A5 U/Ss.188 86 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
t
Police Station, U/Ss.20(2), of banned
SPSR Nellore 22 r/w.5(l) of tobacco
District. COTP Act. products.
90) 4939 of Cr.No.l62 of Sole U/S.271 of Possession and
2021 2021 of Salur accused IPC; and sale of banned
Town P.S., U/Ss.5(l) 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.l27 of Sole U/Ss.7(l), 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(l) 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
II
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(l), 58, products.
59, 63 of FSS
Act.
100) 5301 of Cr.No.l89 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(l) 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 bainned
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.l88, 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!
SI. Crl. Crime No. & Array of Offences Nature of
No. Petition Name of P.S. accused allegedly offence
No. committed
1) 3660 of Cr.No.ll7 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
Kumool Act; and packets and
District. Sec.34(a) of Karnataka
A.P. Excise State liquor.
Act.
2) 3661 of Cr.No.l45 of Sole U/Ss.188, Sale of banned
2021 2021 of accused 273 of IPC; noxious and
Banaganapalli Sec.59(l) 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.l64 of Sole U/Ss.188, Sale of banned
2021 2021 of accused 269, 270, 273 tobacco
Vu3^yuru Town of IPC; products and
P.S., Sec.51(b) of illegal sale of
Vijayawada DMA, 2005; liquor.
City, Krishna Sec.5(l)
Dt. r/w.22, 6(b)
r/w.24(l) 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(l)(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(l) 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(l) 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(l)(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
I
Srikakulam I IPC; and other banned
Town P.S, Sec.34(l)(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(l)(i) of
A.P. Excise
Act.
11) 3823 of Cr.No.532 of Sole U/Secs.l88, 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.l46 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.l56 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
Prakaseim 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.l47
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.l47
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 86 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(l)(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!
SI. Crl. Crime No. & Array of Offences Nature of
No. Petition Name of P.S. accused allegedly offence
No. eommitted
1) 3555 of Cr.No.l37 of Sole U/Sees.l88, 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 lPC;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
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)0) 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
Maharashtra L
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
2021 see OnLine Bom 26 = 2021 eri LJ 1811
CMR, J.
CrLP.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 veiy strenuous effort to convince
the
Court that chewing tobacco clearly comes within the
definition
of ‘food’ as defined under Section 3(l)(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
Mohammadh learned Public Prosecutor would submit that
chewing tobacco would also fall within the definition
of food
as
defined under Section 3(l)(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.l.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.l.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
Ig
CMR, J.
Crl,P.No.2966 of 2021 & batch
whether ‘chewing tobacco’ falls within the definition
of ‘food’ as
defined under Section 3(l)(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 Dange^ and Godawat Pan Masala Products I.P.
Ltd. V. Union of India^, 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(l)(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.
^ (1974) 1 see 167 = 1974 SeC (Cri) 87
^ (2004) 7 sec 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(l)(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(l)(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)0) 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 primaiy 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 ^hich is intended for human
consumption’ alone can be considered and construed
as a
substance of food. The expression “food” is defined in Lexicon
'a substance taken into the body to maintain life and
as
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(l)[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)0) 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(l)[]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(l)(]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)0) 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^.
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
‘‘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 India^. 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:
-2017 see OnLine eal 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 Committee^, 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(l)(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
(2002) 9 see 232
27
CMR, J.
Crl.P.No,2966 of 2021 & batch
exercise of a
the said products. That would be an
commerce m
power that they do not have.
Following the aforesaid judgment, a single Judge of this
26.
Court in Crl.P.No.3731 of 2018 and batch held that chewing
food within the definition of Section 3(l)(j) of the
tobacco is not a
FSS Act.
Thus, the view taken by two coordinate Benches of this
27
Court and the view taken by the Calcutta High Court that
food within the
chewing tobacco cannot be construed as a
of food under Section 3(l)(j) of the FSS Act, in my
definition
consistent and inconsonance with the
considered view, is more
Section 3(l)(j)
intention of the Parliament in defining food under
is also a food
Holding that chewing tobacco i
of the FSS Act.
but reading something into the definition
would be nothing
of the Parliament and it would also be
contrary to the intention
adding extraneous product or the substance to the definition.
learned Judge of another single Bench, who differed
28. A
with the earlier view taken by two coordinate Benches of this
Court, solely relied on the interpretation given by the Apex
of Pyarali K. Tejani2 and Godawat Pan
Court in the case
at the
Masala Products I.P. Ltd.3 of the Apex Court in arriving
within the
conclusion that chewing tobacco would also come
The
of food under Section 3(l)(j) of the FSS Act.
definition
Pyarali K. TejanH is
judgment of the Constitutional Bench in
under FSS Act. It could not be also, as
not directly on the issue
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.
Tejani^ 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(l)(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
r
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(l)(j) of the FSS Act, this Court holds that
chewing
tobacco is not a food within the definition of Section
3(l)(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.l.Rs.
relating to
manufacture, sale, storage or transportation of the
said chewing
tobacco amounts to abuse of process of Court. Therefore,
the
F.l.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-Ill)
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-Ill.
The miscellaneous petitions pending, if any, shall
stand
closed.
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date:28.12.2021.
cs