Jaganath Enterprises v. State of AP

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Page 1 Friday, January 06, 2023

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2019 SCC OnLine AP 199 : (2020) 1 ALT (Cri) 215 : (2020) 2 ALD (Cri) 769 :
(2020) 1 AmLJ 302
In the High Court of Andhra Pradesh

(BEFORE D.V.S.S. SOMAYAJULU, J.)
Jaganath Enterprises … Petitioner/Accused;

Versus
State of Andhra Pradesh, Through SHO Rep. by Public Prosecutor …
Respondents.
Crl.P. Nos. 5421, 5537, 5540, 5568, 5620, 5622, 5624, 5638, 5822, 6046, 6048,
6057, 6058, 6130, 6142, 6186, 6187, 6188, 6194, 6400, 6832, 6834, 6835,
6836, 6839, 6840, 6841, 6855, 6931, 6932, 6933, 6935, 6941, 6943, 6946,
6949, 6989, 7010, 7027, 7059, 7183, 7213, 7246, 7250, 7258, 7261, 7263,
7264, 7352, 7395, 7415, 7433, 7515, 7516 and 7564 of 2019
Decided on December 18, 2019
Advocates who appeared in this case:
Counsel for the petitioners : Sri. Siva Sai Swaroop, Sri. Raja Reddy Koneti and Sri.
S.M. Subhan.
Counsel for the Respondents : Public Prosecutor
The Order of the Court was delivered by
D.V.S.S. SOMAYAJULU, J.:— These criminal petitions are filed under Section 482 of
Criminal Procedure Code (for short ‘Cr.P.C.’) to quash the proceedings against the
petitioners, who are accused in different cases. The details of offences are mentioned
in the table given below.
Sl. No. Case Number Section of Offences
registered
1. Crl.P. No. 5421 of 2019 120(B), 353, 273, 188
and 420 IPC. Sections 59,
63 of FSS ACT and Section
20(b) of NDPS Act
2. Crl.P. No. 5537 of 2019 272, 273, 328 r/w 34 IPC,
Sections 57, 58 r/w 26, 30
of FSS Act.
3. Crl.P. No. 5540 of 2019 272, 273, 328 r/w 34 IPC,
Sections 57, 58 r/w 26, 30
of FSS Act.
4. Crl.P. No. 5568 of 2019 270, 273 IPC, 24(1) of
COTP Act
5. Crl.P. No. 5620 of 2019 270, 273 IPC, 5(1) and 22
of Cigarettes and other
Tobacco Products Act,
2013
6. Crl.P. No. 5622 of 2019 270, 273 IPC, 5(1) and 22
Tobacco Products Act,
2013
7. Crl.P. No. 5624 of 2019 270, 273 r/w 34 IPC, 5(1)
and 22 of Cigarettes and
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other Tobacco Products

Act, 2013
8. Crl.P. No. 5638 of 2019 270, 273 r/w 34 IPC, 5(1)
and 22 of Cigarettes and
other Tobacco Products
Act, 2013
9. Crl.P. No. 5822 of 2019 272, 273, 328 r/w 34 IPC
10. Crl.P. No. 6046 of 2019 272, 273, 353 r/w 34 IPC
and Section 49(iv) of FSS
Act, 2006
11. Crl.P. No. 6048 of 2019 273, 353 of IPC and
Sections 26, 30 of FSS
Act, 2006.
12. Crl.P. No. 6057 of 2019 420, 270, 272, 188, 328
IPC and Section 56, 57(1)
and 63 of FSS Act, 2006
13. Crl.P. No. 6058 of 2019 420, 272, 273, 188, 328
IPC Sections 57, 58, 59
14. Crl.P. No. 6130 of 2019 188, 272, 273, 420, 353
r/w 34 IPC and Sections
57(1), 58, 59 and 62 of
FSS Act, 2006
15. Crl.P. No. 6142 of 2019 188, 272, 273, 420 IPC
and Sections 58, 59 and
63 of FSS Act, 2006
16. Crl.P. No. 6186 of 2019 188, 270, 273, 328, 420
IPC and Section 57(1) of
FSS Act, 2006
17. Crl.P. No. 6187 of 2019 188, 272, 273, 328, 420,
IPC and Sections 56, 57
18. Crl.P. No. 6188 of 2019 270, 273, 284 r/w 34 IPC
and 58, 68 Rules of 2, 3, 4
of FSS Act, 2006
19. Crl.P. No. 6194 of 2019 270, 273, 328, 420 IPC
and 56, 57 and 63 of FSS
Act, 2006
20. Crl.P. No. 6400 of 2019 188, 272, 273, 328 IPC,
Sections 58, 59 of FSS
Act, 2006 and Section 24
of COTPA Act, 2003
21. Crl.P. No. 6832 of 2019 188, 272, 273 IPC and
Section 59(i) of FSS Act,
2006
22. Crl.P. No. 6834 of 2019 188, 273, 353 IPC and 30
(2)(i), 58, 59 and 63 of
FSS Act, 2006
23. Crl.P. No. 6835 of 2019 272, 273, 353 r/w 34 IPC
24. Crl.P. No. 6836 of 2019 188, 273, 120(b) and 420
IPC, Sections 57(1), 58,
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59 and 63 of FSS Act,

2006
25. Crl.P. No. 6839 of 2019 188, 273, 120(b) and 420
IPC, Sections 57(1), 58,
59 and 63 of FSS Act,
2006
26. Crl.P. No. 6840 of 2019 188, 273, 120(b) and 420
r/w 34 IPC
27. Crl.P. No. 6841 of 2019 273 and 420 IPC and
Sections 57, 58, 59(i) and
63 of FSS Act, 2006
28. Crl.P. No. 6855 of 2019 188, 272, 273, 328 and
420 r/w 34 IPC, and
Sections 58, 59 and 63 of
FSS Act, 2006
29. Crl.P. No. 6931 of 2019 418, 420, 269, 270, 272
r/w 34 IPC and section 5
(1) of COTPA Act.
30. Crl.P. No. 6932 of 2019 269, 270, 273, r/w 34 IPC
and section 5(1) and 22 of
COTPA Act.
31. Crl.P. No. 6933 of 2019 418, 420, 269, 270, 272,
r/w 34 IPC and Section 5
(1) of COTPA Act.
32. Crl.P. No. 6935 of 2019 188, 273, 328, 353 IPC
and Sections 58, 59 and
63 of the FSS Act.
33. Crl.P. No. 6941 of 2019 Sections 270 and 273 IPC
34. Crl.P. No. 6943 of 2019 188, 273, 328 and 353
IPC, Sections 58, 59 and
63 of FSS Act, 2006
35. Crl.P. No. 6946 of 2019 188, 273, and 420 IPC,
FSS Act, 2006
36. Crl.P. No. 6949 of 2019 188, 272, 273 IPC,
Sections 57(1), 58 of FSS
Act, 2006
Section 5(1) and 22 of
COTPA Act.
section 22 of COTPA Act.
39. Crl.P. No. 7027 of 2019 188, 273 and 328 IPC
40. Crl.P. No. 7059 of 2019 273 IPC and Section 5 and
22 of CTP Act
41. Crl.P. No. 7183 of 2019 328, 270, 273, 279 IPC
and Section 20(2) and 22
of COTPA Act
42. Crl.P. No. 7213 of 2019 269, 270, 271, 273 r/w 34
IPC and Sections 5 and 22
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of COTPA Act.
43. Crl.P. No. 7246 of 2019 269, 271, 272, 273 IPC
and Section 5 and 7 of
COTPA Act.
44. Crl.P. No. 7250 of 2019 270, 272, 273, 328 r/w 34
IPC and Sections 16, 24,
59(1) of FSS Act.
45. Crl.P. No. 7258 of 2019 270, 273 IPC
46. Crl.P. No. 7261 of 2019 269, 270, 271, 273, 406,
420 r/w 34 IPC and
Sections 5(1), 22 of
Cigarettes and other
Tobacco Products
(Prohibition of
Advertisement and
Regulation of Trade and
Commerce, Production,
Supply and Distribution)
Act, 2003
47. Crl.P. No. 7263 of 2019 269, 270, 273, 328 r/w 34
IPC and Sections 5 and 22
Tobacco Products
(Prohibition of
Advertisement and
Act, 2003
48. Crl.P. No. 7264 of 2019 188, 273, 328 and 353
IPC and Sections 58, 59,
63 of FSS Act, 2006
49. Crl.P. No. 7352 of 2019 270, 273, 328 r/w 34 IPC
and Sections 5(2) and 22
of (Prohibition of
Advertisement and
Act, 2003
50. Crl.P. No. 7395 of 2019 188, 272, 273, 328 and
420 r/w 34 IPC and
FSS Act, 2006
51. Crl.P. No. 7415 of 2019 188, 270, 273, 328 and
420 IPC and Sections 56,
57(1) and 63 of FSS Act,
2006
52. Crl.P. No. 7433 of 2019 188, 272, 328, 420, 466,
468, 471, 474 and 120(B)
r/w 34 IPC and Section 59
FSS Act, 2006
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53. Crl.P. No. 7515 of 2019

188, 273 and 420 r/w 34
IPC and Sections 58, 59
and 63 of FSS Act.
54. Crl.P. No. 7516 of 2019 270, 273 IPC and Sections
56, 57(1) and 63 FSS Act.
55. Crl.P. No. 7564 of 2019 188, 272, 273, 328, 420
IPC and sections 58, 59
and 63 of FSS Act.
2. This batch of criminal petitions are filed questioning the actions of the police
authorities in registering cases under the provisions of the Penal Code, 1860 (IPC) and
the Food Safety and Standards Act, 2006 (for short ‘the FSS Act) for transportation
and sale of Tobacco, Gutka, Pan Masala etc. In view of the fact that a large number of
cases were filed, they were all taken up as a batch and the arguments in Criminal
Petition No. 5421 of 2019 were heard.
3. The lead in these cases were taken by Sri. R. Siva Sai Swaroop, Sri. Raja Reddy
Koneti and S.M. Subhan, learned counsels for the petitioners. The learned Public
Prosecutor for the State himself appeared and argued the matter on behalf of the
respondent-State.
Petitioners submissions:
4. Since common questions of fact and law are involved, the cases were all taken
up together. In the case on hand, the crime was registered under sections 353, 273,
188, 420 r/w 34 IPC and sections 59 and 63 of the FSS Act. In the lead case, Section
20(b) of the NDPS Act was also included.
5. Sri. R. Siva Sai Swaroop, learned counsel for the petitioner argued that despite
the authoritative pronouncement on the same subject and the same sections in
Criminal Petition No. 3731 of 2018 and batch, by a learned single Judge of this Court,
the police are continuing to register the cases under the very same sections. He points
out that the orders were passed in the batch of matters in August 2018, but the police
are still harassing the petitioners, who are legitimate businessmen by filing the cases
under the same sections. It is his contention that the police have totally ignored the
order that was passed by the learned single Judge of this Court in the batch of
criminal petitions. He also points out that none of the sections which are mentioned
are attracted. According to him, the manufacture, transportation and sale of tobacco is
not barred under the Indian law. He points out that none of the sections, which are
mentioned are actually applicable to the facts and circumstances of the case. He also
submits that neither tobacco nor Pan Masala etc., would come within the definition of
‘food’. Therefore, he submits that the FSS Act is also not applicable to the facts and
circumstances of the case. It is his contention that under the FSS Act, it is only the
designated Officer under the Act, who can initiate proceedings and the police do not
have the power or the authority to initiate any prosecution. He also points out that
Government Orders that are issued are not based on any law, which empowers the
Government to ban the items. He points out that the FSS Act is a Central Enactment,
which is a self contained Code and therefore, only if food article is involved, the
authorities under the said Act can initiate action.
6. Sri. Raja Reddy Koneti, learned counsel also argues on similar lines and points
out that a comprehensive writ has already been filed about the right and the authority
of the State to issue the G.Os under question. Apart from that, it is his very clear case
relying upon 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 Act) that tobacco is not ‘food’ and that the Central
Government, while passing the said Act, did not ban the trade in tobacco products at
all. He took great pains to analyse this Act and points out that it is only the
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advertisement and sale of tobacco products under certain circumstances that is

banned. He points out that from a reading of the Act that the Schedule in the Act lists
out the tobacco products, which are described in section 3(p) of the said Act.
According to him, Pan Masala, Chewing tobacco or any other Chewing material having
tobacco as an ingredient and Gutka are all classified as tobacco products only and not
as ‘food’. He relies upon the provisions of the FSS Act to argue that the Commissioner
of Food Safety can only ban the manufacture, storage, distribution of an article of food.
Relying on the definition of ‘food’, he submits that the alcoholic drinks are included in
the FSS Act in the definition of ‘food’, but the Central Government did not bring the
tobacco products within the ambit of food. By relying on these two Central
Enactments, Sri. Raja Reddy Koneti contends that the tobacco is not included in the
list of items, which can be banned under the FSS Act. Coming to the G.Os that are
being periodically issued, learned counsel, in the alternative argues that under Section
30(2) of the FSS Act, any ban can only be for a temporary period not exceeding one
year at a time. Therefore, he submits that the authorities are exercising the
emergency provisions, which are meant to apply in certain situations and are banning
legitimate trade, which is guaranteed to the petitioners under the Constitution.
Learned counsel points out that the right to ban, manufacture, storage, distribution or
sale under Section 30(2) of the FSS Act, for a limited period would arise only in
emergencies. For example, he states that if a huge cyclone devastated a certain area
and the likelihood of any article of food like poultry being contaminated/infected is
there, the Authorities can ban the sale of the same. It is his contention that these
provisions are meant to govern such situations. Therefore, learned counsel argues that
the entire exercise done by the police in these cases is per se illegal.
7. Sri. S.M. Subhan, learned counsel, continues the arguments on the same lines.
Public Prosecutors submissions:
8. Learned Public Prosecutor for the State appeared personally and argued on behalf
of the respondents. It is his contention that even if tobacco is not classified as ‘food’, it
is still a very dangerous commodity and causes great harm to the consumers and
consequently to the Nation at large. The learned Public Prosecutor also submits that
once tobacco is mixed with menthol and lime and other products, which are food stuff,
it becomes adulterated and consequently, he submits that Section 3(1)(j) of the FSS
Act is added. He relies upon G.O.Ms. No. 6 dated 09.01.2013 by which the
transportation and distribution of Gutka and Pan Masala is prohibited in the State of
Andhra Pradesh. Considering the over all public health, the learned Public Prosecutor
submits that as noxious materials are added to tobacco, the sections, which are
included are attracted.
9. Relying upon the judgment reported in Anand Ramdhani Chaurasia v. The State
of Maharashtra1 , learned counsel submits that the offences are attracted and therefore,
registering of the FIR is not barred. He also relies upon Joseph Kurian v. State of
Kerala2 , wherein the Hon'ble Supreme Court of India considered the applicability of
Sections 272 and 328 of IPC while deciding the case. Lastly, he submits that the
police can register the case and investigate the same. Relying upon section 26 of the
General Clauses Act, the learned Public Prosecutor argues that when the Act
complained is of an offence under two or more enactments, the offender shall be liable
to be prosecuted and punished under any one of the two enactments, but shall not be
punished twice for the same offence. It is his contention that quashing the
applications at this stage is not called for since the question of applicability of both the
Acts would arise later and only when the punishment is being imposed. He relies upon
State of Maharashtra v. Sayyed Hassan Sayyed Subhan3 , which also deals with the
FSS Act and offences under the IPC for the transportation and sale of Gutkha, Pan
Masala etc. Learned Public Prosecutor also has filed some data relating to the types of
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diseases that are caused by the consumption of tobacco and tobacco products
including cardiac arrest, cancer etc. Therefore, it is his final submission that in the
interest of public health, this Court should in fact support the police and other
authorities in their efforts to reduce this menace, which according to him, is a killing
lakhs of people in India. Therefore, learned Public Prosecutor opposes the quashing of
the FIRs and submits that these are matter which should be allowed to be
investigated and that the offenders should be prosecuted and punished.
Finding of the Court:
10. As noticed earlier, a learned single Judge of this Court has carried out a detailed
analysis of the similar issues in the order passed in Criminal Petition No. 3731 of 2018
and batch. It is also admitted that the said order has become final and the State has
not taken up the matter in appeal or questioned the order in anyway. Despite the
detailed analysis carried out by the learned single Judge and the well reasoned order
passed, the registration of the FIRs is still continuing. In order to set the record
straight and to hopefully bring a quietus to the problem, this Court is also proceeding
to analyse the matter in detail instead of relying on the clear and well written earlier
order.
The FSS Act : (Act 34 of 2006)
11. The first and foremost issue to be decided is the applicability of the FSS Act to
tobacco/tobacco products and the definition of ‘food’. Section 3(j) of the FSS Act,
defines ‘food’ as a substance, which is intended for human consumption containing
such ingredients as described in the said definition. The definition does not include
animal feed, live animals etc. It also eliminates the applicability of narcotic and
psychotropic substances. Alcohol is an item which is included in the definition of
‘food’. The COTPA Act, which is passed in 2003 (Act. No. 34 of 2003) on the other
hand defines in section 3(p) of the Act, the tobacco products. The definition states
that the products specified in the Schedule are tobacco products and the Schedule
lists out 10 items as tobacco products. They are reproduced here under:
THE SCHEDULE
(Section 3(p)
1. Cigarettes
2. Cigars
3. Cheroots
4. Beedis
5. Cigarette tobacco, pipe tobacco and hookah tobacco
6. Chewing tobacco
7. Snuff
8. Pan masala or any chewing material having tobacco as one of its ingredients (by
whatever name called).
9. Gutkha
10. Tooth power containing tobacco.
12. Cigarettes, Chewing tobacco, Pan Masala, Chewing material with tobacco are
included in the tobacco products. Therefore, a prima facie reading of these Central
enactments makes it clear that tobacco products are only defined under the COTPA Act
and not under the FSS Act. The FSS Act, only talks of ‘food’, which is intended for
human consumption, which includes in it alcoholic drink, but does not include any
narcotic or psychotropic substance.
13. The next section that falls for consideration is, Section 56 of the FSS Act, which
talks of penalty for unhygienic or unsanitary process for manufacture of ‘food’. Section
57 of the FSS Act, provides for the penalty for a person, who mixes an adulterant with
the food. Adulterant is described and defined in section 3(1)(a) of the FSS Act, as ‘a
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material used or could be used for making ‘food’ unsafe/sub-standard etc. Therefore,
this section, in the opinion of this Court, could only come into play when ‘food’ is
adulterated. Section 58 of the FSS Act, is a general provision, which provides penalty
for contraventions for which no other penalty is provided. Section 59 of the FSS Act,
deals with the penalty for any person who manufactures or sale, store, and distributes
any article of ‘unsafe food’ for human consumption. Section 63 of the FSS Act, deals
with the punishment for a person or food business operator, who manufactures, stores
any article of ‘food’ without licence. Therefore, it is clear from a reading of the
sections, which are being pressed into service by the prosecution time and again
under the FSS Act, that all of them relate to ‘food’ and ‘food articles’ only. The
sections, which have been pressed into service, in the opinion of this Court, do not
apply to an article which is not meeting the definition of food. Section 89 of the FSS
Act, also provides that it shall have a overriding effect from all other food related laws.
Apart from a plain grammatical meaning which is supporting the decision taken by
this Court on the definition of ‘food’, the decisions of the Division Bench of the
Allahabad High Court in Pepsico India Holdings (Pvt) Ltd. v. State of U.P.4 squarely
applies to the facts and circumstances of this case. The learned Judges of the
Allahabad Court have analysed various sections of law being pressed into service in
that case and concluded that the FSS Act applies only to ‘food’ and food items.
14. A learned single Judge of the Calcutta High Court in the case of Sanjay Anjay
Stores v. Union of India5 also came to the conclusion that tobacco is not a food stuff.
Relying upon the provisions of the FSS Act, and the other enactments, the learned
Judge of the Calcutta High Court came to the conclusion that these articles are not
food for the FSS Act to be pressed into service. In fact, the learned single Judge of this
Court in the batch of criminal petitions referred to has also come to the very same
conclusion. Thereafter, relying upon sections 41 and 42 of the FSS Act and after
considering the law on the subject, the learned single Judge came to the conclusion
that the Inspector of police or the sub-inspector of police do not have the authority to
investigate or to file a charge sheet. He held and rightly so that it is only the Food
Safety Officer, who is competent to launch a prosecution for the offence under the FSS
Act. Despite this authoritative pronouncement of this Court; the status quo continues.
IPC offences:
15. Coming to the offences under the IPC, the sections that are most often being
pressed into service are Sections 272 and 273 IPC. Section 272 IPC makes punishable
an offence by a person, who adulterates any article of ‘food or drink’. Therefore, this
Section would only come into play if food or drink is adulterated. The Penal Code, 1860
does not describe or define adulteration. The definition of adulterant is found in the
provisions of the FSS Act. According to the said definition as found in Section 3(1)(a)
of the FSS Act, adulterant is a material which could make the ‘food’ unsafe or sub-
standard or mis-branded. Therefore, according to Section 272 IPC, if a material is used
to make the food unsafe/sub-standard or mis-branded, then only the offence would be
attracted. In the case on hand, as tobacco or tobacco products do not come within the
definition of food or drink, these products do not come within the ambit of Section 272
IPC. Similarly, Section 273 IPC talks of the sale of a noxious food or drink. If a person
offers for sale a “food or drink” any article which has become noxious or is in a state of
unfit for “food or drink”. This section would apply, when an article which has become
noxious or which has been rendered noxious. It also applies to food or drink only. The
word ‘noxious’ is not defined in IPC, but as per the dictionary meaning noxious means
harmful, deleterious, injurious, poisonous etc.
16. Section 188 IPC is also being pressed into service repeatedly in these cases. As
per the settled law on the subject, section 188 IPC would apply to the disobedience of
an order duly promulgated by a public servant. As per the settled law on the subject,
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before an accused is charged, there must be (1) an order duly promulgated by the
public servant (2) the public servant must have the lawful authority to promulgate the
order (3) the person flouting the same should have knowledge about the order
directing him to abstain from the act (4) he must dis-obey the said order with the
knowledge and (5) such disobedience of the duly promulgated order should cause a
danger to the human life etc., (as applicable to the facts and circumstances of this
case). The judgment of the Division Bench of the Allahabad High Court in Boop Singh
Tyagi v. State6 is appropriate in the circumstances. The right to promulgate the
ordinance/order is also an issue which is being raised, because under the FSS Act, the
Commissioner of Food Safety alone has the authority to pass the orders only if the
article of ‘food’ can causes danger or is injurious to health. Since the matter is
supposedly before the Writ Court, this Court is not expressing any further opinion, but
the submission of the learned counsel for the petitioner, Sri. Raja Reddy, that such a
notification can only be issued for emergency situations and for prohibiting the
distribution and sale of any article of a food cannot be lost sight of. This Court holds
that the offence under Section 188 IPC., is also not attracted since the necessary pre-
conditions are not satisfied.
17. Section 353 IPC is also pressed into service by the police in these cases. In the
case on hand, the only issue that is raised is that the accused ‘pushed’ away the police
officer while trying to escape. This by itself, in the opinion of this Court, would not
amount to use of assault or criminal force against a public servant from discharging of
his duties. Section 420 IPC is also being added in some of these cases. This Court
notices that the essential ingredients for utilising the section are not at all fulfilled.
There is neither inducement nor delivery of any property to bring in the ingredients of
section 420 IPC. As per the settled law on the subject, this intention must be present
from the inception. The police are in fact ‘third’ parties to the offence of cheating and
therefore, whether they can maintain a complaint under Section 420 IPC is also
debatable. The related sections from 415 IPC are also not applicable as this Court is of
the opinion that as on date, the trade in tobacco products is not barred.
18. A reading of the judgment of the Hon'ble Supreme Court of India in Joseph
Kurian's case (2 supra), also throws some light on the applicability of Section 272 IPC.
Their lordships of the Hon'ble Supreme Court clearly held that for Section 272 IPC to
be attracted, the following should be present. (1) That the article involved was food
and drink meant to be consumed by live persons (2) that the accused adulterated it
and the adulteration rendered it noxious as a ‘food or drink’. (3) that the accused
knew at the time of adulteration that he would sell the article as food or drink and
knew that such article cannot be sold as food or drink. The Hon'ble Supreme Court
clearly held that the offence is completed on the introduction of the adulterant. As
mentioned earlier, adulterant would mean a material which is mixed to make the ‘food’
unsafe or the drink unsafe. In the case and hand, tobacco is not food and what is
stated to be mixed in it is not clearly established by any cogent material as an
‘adulterant’ for the offence under Section 272 IPC to be pressed into service. As far as
section 328 IPC is concerned, in the same judgment it was held as follows:
“10. In order to prove offence under Section 328 the prosecution is required to
prove that the substance in question was a poison, or any stupefying, intoxicating
or unwholesome drug etc, that the accused administered the substance to the
complainant or caused the complainant to take such substance, that he did so with
intent to cause hurt or knowing it to be likely that he would thereby cause hurt, or
with the intention to commit or facilitate the commission of an offence. It is,
therefore, essential for the prosecution to prove that the accused was directly
responsible for administering poison etc. or causing it to be taken by any person,
through another…….”
19. Tobacco does not fit into this definition.
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20. The learned Public Prosecutor's efforts to persuade this Court that lime etc., are
being mixed in tobacco etc., does not lead to a conclusion that they are used as
adulterant or are rendering the tobacco product noxious.
21. Apart from these main sections, which are being pressed into service, this Court
also notices that in some of the complaints, following sections are also being added
randomly. In that view of the matter, this Court has to answer the same.
22. Section 153 IPC is being added. This section begins with the words
‘malignantly or wantonly’, but as can be seen from the section, it only applies to
provocation that is given which is likely to cause rioting of the offence. Similarly,
Sections 269 and 270 are also being utilized by the police and mentioned in the FIRs.
Already this Court has discussed about the applicability of sections 272 and 273 IPC.
These two sections are also similar. Both sections 269 and 270 deal with an action of a
person who unlawfully and intentionally knows that he is likely to spread infection
because of his action. Section 270 IPC in fact is an aggravated form of the offence
mentioned in section 269 IPC.
23. This Court's conclusion is that sale, manufacture, processing etc., of tobacco are
not totally banned and in the latter part of the order this is discussed. Therefore, since
the sale of tobacco products is still not banned in this country and it is only regulated
to a certain extent, it cannot be said that sections 269 and 270 IPC are attracted to a
case of possession and sale of tobacco or tobacco products.
24. Section 284 IPC is also mentioned in some of the FIRs. A reading of this section
would clearly show that it only applies to the rash and negligent use of a poisonous
substance. Both the use or the negligent failure to guard against probable danger to
human life from a poisonous substance is what is covered by these sections. This
section, therefore, also would not apply.
COTPA Act (Act 34 of 2003):
25. Coming to the provisions of the COTPA Act, this Court notices that the objects
and the reasons of the said Act itself clearly state that the act is meant to prohibit the
advertisement of, and to provide for the regulation of trade and commerce in, and
production, supply and distribution of, cigarettes and other tobacco products and for
matters connected therewith or incidental thereto.
(emphasis supplied)
26. Therefore, it is clear from a reading of this Act that a total ban of the tobacco
products was not envisaged by the Act. The Parliament merely felt it expedient to
control the advertisement and sale of tobacco products. As noted earlier in the order,
Section 3(p) of the COTPA Act and the schedule therein define tobacco products. Pan
masala, gutkha and chewing tobacco are included in the definition of tobacco
products. Section 5 of the COTPA Act talks of prohibition of advertisement of cigarette
and other tobacco products only. No person, who is engaged in the production, supply
or distribution of cigarettes or other products shall advertise the same. Similarly, no
person having the control over a medium can advertise cigarettes or tobacco products.
Lastly, no person shall be a part of any advertisement. This is what is prohibited by
Section 5 of the COTPA Act. Section 7 of the COTPA Act deals with the imposition of
restriction on the sale, trade, commerce of tobacco products unless every package of
cigarette or tobacco product contains a specified warning (pictorial or otherwise).
Section 4 of the COTPA Act, bans smoking in public places. In addition, section 6 of
the COTPA Act, prohibits the sale of cigarettes or other tobacco products to a person
who is under the age of 18 years are in an area within 100 yards of any educational
institution.
27. A reading of this Act, particularly sections 4, 5, 6 and 7 clearly shows that there
is no general ban or general prohibition on the manufacture/sale of tobacco products.
What is barred is merely the sale of these products to a person, who is below the age
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of 18 years and in an area within 100 yards of an educational institution. The other
aspects covered by Sections 5 and 7 of the COTPA Act, deal with the advertisement
and the warning, which is to be contained on a package, in which the tobacco product
is packed. This is a regulatory mechanism only. Therefore, this Court is of the opinion
that the provisions of the COTPA Act, can only be pressed into service in these limited
circumstances only (violation of sections 4, 5, 6 7 and 10). In addition, if the package
does not contain any pictorial or other warning, the prosecution can be launched.
Therefore, it is clear that the Central Government imposed certain restrictions on the
manufacture, sale, distribution and consumption of tobacco only, but it did not
absolutely ban the same. As rightly pointed out by Sri. Raja Reddy Koneti, learned
counsel, the right to carry on a trade is a right guaranteed by the Constitution of India
and this right can only be regulated or taken away by appropriate legislation. His
contention that the high handed police action is being used to curtail the genuine
trade also appears to be correct. The COTPA Act is a special Act intended to deal with
trade, commerce, production, supply and distribution of tobacco products. Although it
is universally recognised that tobacco products are injurious to health, the fact
remains that their production, trade and supply etc., are not banned in their entirety.
The Union despite the overwhelming evidence of the dangers of tobacco products did
not ban the manufacture/trade/sale of tobacco products.
28. This Court is constrained to reiterate all these issues once again, despite the
order passed by the learned single Judge in Crl.P. No. 3731 of 2018 and batch. The
conclusions of the single Judge in the said batch are fully agreed to by this Court also.
None of the sections of the IPC or the FSS Act, which are pressed into service are
applicable to the facts and circumstances of the case. Since the notifications issued by
the State Government are said to be the subject matter of different challenge in the
original writ jurisdiction, this Court is not pronouncing on the same.
29. But as far as the present cases are concerned, this Court by exercising the
power under section 482 Cr.P.C. and following the mandate of the Hon'ble Supreme
Court of India in State of Haryana v. Bhajan lal7 and the judgment of the High Court of
Allahabad in Pepsico India Holdings (Pvt) Ltd., (4 supra), is constrained to hold that all
the FIRs/cases that have been registered under the provisions of the IPC, FSS Act and
the COTPA Act are quashed, leaving it open to them, if they so desire to pursue the
prosecution in respect of the offences under the other enactments, if any. The offences
under the NDPS Act can be pursued. The offences under the COTPA Act, can only be
launched if the police find that the sections 5, 6 7 and 10 are not complied with.
Except on these very limited grounds genuine/legitimate traders cannot be
prosecuted.
30. It is hoped that copies of the orders passed by the learned single Judge in
Crl.P. No. 3731 of 2018 and batch and this order are widely circulated by the Director
General of Police and the Chief Secretary of the State of Andhra Pradesh through out
the state of Andhra Pradesh so that the time and effort of the police are devoted to
more serious crimes. Whatever be the impact of tobacco products on the health of an
individual or the nation; till the law is amended/modified it has to be followed. As held
by many Courts earlier; it may be hard, but it is the law.
31. With the above observations, the criminal petitions are allowed.
32. As a sequel, dispense with petitions, if any, shall stand ordered and other
miscellaneous petitions, if any, shall stand closed.
———
1 Crl.W.P. No. 3607 of 2019
2
1995 (1) SCJ 277
3 (2019) 18 SCC 145 : AIR 2018 SC 5348
-----------------------------------------------------------------------------------------------------------------------------------------------------------
4 (2011) 2 Crimes 250

5
2017 SCC OnLine Cal 16323
6 2002 Cri LJ 2872
7 1992 Supp (1) SCC 335
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Jaganath Enterprises v. State of AP

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Jaganath Enterprises v. State of AP

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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Friday, January 06, 2023

In the High Court of Andhra Pradesh

Jaganath Enterprises … Petitioner/Accused;

other Tobacco Products

59 and 63 of FSS Act,

53. Crl.P. No. 7515 of 2019

advertisement and sale of tobacco products under certain circumstances that is

4 (2011) 2 Crimes 250

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