Salmann , Abdul Aleem v. The State Of Telangana

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD MONDAY ,THE NINETEENIH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO: 9563 OF 2022 Between:

Salman @ Abdul Aleem, S/o. Md. Abdul Hakeem, Aged about 32 years, Occ. Professional Services, Fyo. 18-8-104/106, PN Nagar, Edi Bazat, Hyderabad, T.S.

...PETITIONEFYACCUSED No. 1 AND '1 . The State of Telangana, Rep. by its Public Prosecutor, High Court at ' Hyderabad.

2. The State of Telanana, through P.S. Jubilee Hills, Hyderabad. ...RESPONDENT/COM PLAINANT 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 against the petitioner/accused No.1 C.C.No.B56 of 2018 in Crime No. 819 ol 2017 of P.S. Jubilee Hills, Hyderabad, for the U/Sec. 270,290 Rr/w.'188 IPC and Sec. 4 and 20 (2) COTP Act. l.A. NO: 1 OF 2022 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 all further proceedings including arrest of the petitioner in CC No.856 of 2018 in Crime No. 819 of 2017 of PS Jubilee Hills Hyderabad forthe U/Sec 328, 188 IPC and Sec 4 and 20 (2) COTP Act pending disposal of the above criminal petition.

This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri MOHD N/AHBOOB AHMED KHAN, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No. 1 and none appeared for the Respondent No. 2.

The Court made the following: ORDER

Crl.Petition No,9563 of 2022 THE HO\OURABLE: SRI JUSTICE K.SURENDER CRII,IINAL PETITION No.9563 OF 2022

ORDER

This Criminal Petition under Section 482 of the Code of Criminal Procerlure, 1973 (for short 'Cr.P.C.), is filed by the petitioner to quash the proceedings against him in C.C.No.856 of 2018, pending on the file of XVII Additional Chief Metropolitan Magistrate at Hyderabad.

2.

The petitioner herein is the accused No.l in the said crime. The offences alleged against him are under Sections 270 and 290 read with lBB of Indian Penal Code (for short "IPC') and Sections 4 and 20(2) of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Requlation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short'COTP Act).

3. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the respondent. Perused the record. 4.

Learned counsel for the petitioner submits that this case is I squarely covered with the Common Order rendered by this Hon,ble l !

j

Crl, Petition No.9563 of 2022 ) Court in Criminal Petition No.3731 of 2018 and batch, dated 27.08.20t8.

5.

This Court had repeatedly quashed the proceedings wherein tobacco products were found on the ground that the provisions under Sections 270 and 290 read with 188 of IPC and Sections 4 and 20(2) of COTP Act, are not attracted. This Court vide Criminal Petition No.3731 of 2018 and batch, dated 27.08.2018 had quashed the proceedings against the accused persons.

6. In the said circumstances, this Criminal Petition is allowed quashing the proceedings in C.C.No.856 of 2018, pending on the file of )0/II Additional Chief Metropolitan Magistrate at Hyderabad.. 7.

Since the charge sheet is already flled, the petitioner is at liberty to file an appropriate application before the concerned Magistrate for return of the seized property/vehicle and the Magistrate shall consider the same in accordance with law. However, it is made clear that if the seized stock of tobacco products or other products are expired, the same shall be destroyed by taking permission from the concerned Magistrate.

-tf

Crl.Petition No,9563 of 2022 1.r\ B. The copy of the common order passed by this tourt in Criminal Petition No.3731 of 2018 and batch, dated 27.0g.2018, I I shall form part of this order As a sequel thereto, Miscellaneous petitions, if any, pending in the Criminal petition stand closed.

Sd/. K. VENKAIAH ASSIST2NT REGISTRAR //TRUE COPYTi SECTION OFFICER To, '1. The XVll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad

2. The Station House Officer. Jubilee Hills Police Station, Hyderabad

3. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad. [OUT]

4. One CC to SRl. MOHD MAHBOOB AFTMED KHAN Advocate [OPUC]

5. Two CD Copies (Along with a copy of the order d1.27.08.2018 in Crl.P.No.3731 of 2018) H,4"__

i HIGH COURT I DATED: 1911212022

ORDER

CRLP.No.9563 of 2022 ,$ \$ + Allowing the Criminal Petition o a @)cr('

lA .y il,

THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL PETITION Nos.373 1 3634 3765 s766 5966 5967 5968 5969 s970 5971 5972 6754 6755 6754 6811 6816 6859 6954 6955 7oat 8216 and 7851 of 2O18 COMMON ORDER 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, crime numbers, accused number, nature of offence are mentioned in the table given below. sl.

No Crime Number Accused Number Offences allegedly committed Nature offence of Cr1.P.No.

A. I u/s 328, 27O and 273 of t.P.C.

I 3731 of 2Ol8 34 of 2018 ol Manakondrrr Police Station Transportation of Pan Masala and Tobacco Products 26 of 2Ol8 of Nakkapalli Police Station 4.2 and 4.3 u /s 272, 273, 328 and 120-B of I. P.C.

Transportation of Khaini Packets 3765 of 20 l8 5O9 of 2017 of Nacharam Police Station A. I u /s 272, 273,420, 188 of I.P.C.

and Section 7 (rl (21 (sl

(5) and 26 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2OO3 (for short "COTP Manufacturing Pan Masala.

I

Crlp_373 l- 2018 and batch MSM. J u/s 272, 273, 420, 188 of I.P.C.

and Section 7 (1) (2) (3)

(5) and 26 of COTP Act, + 3766 of 2Q18 5O9 ot 2Ot7 o[ Nacharam Police Station 4,2 Manufacturing Pan Masala.

I I I of Nacharam Police Station 18t3, 273 of U/S 272, Transportation of Pan Masala A.1 I. P.C 215 of 2Ol8 of Nacharam Police Station 188, 273 of U/S 272, I.P.C Transportation of Pan Masala 5967 of 2O 18 4.2 I of Nacharam Police Statior) ol'Nacharam Police Station 215 of 2O 18 oi'Nacharam Police Station 5971 of 2O 18 of Medipalll'

Police Station 188, 273 ol U/S 272, I-P.C Transportation of Pan Masala ;\.3 n 5969 of 20 i 8 u/s 188, 272, 273 of I.P.C.

Transportation of Pan Masala u/s 188, 272, 273 ot I.P-C.

5970 of 20 i8 Transportation of Pan Masala 4.5 I I l0 u/s 188, 272, 273 read with 34 of I.P.C.

Manufacturing and packing of Pan Masala A.1 1l 5972 of 2Ol8 Manufacturing and packing of Pan Masala u/s 188, )'71 0'7'l read with 34 of I.P.C.

u/s 273, 188 of I.P.C.

and Section \O /il FSS Anf o, Medipally Police Station A.2 13 Ill tl Sale of Masala Tobacco ProdLlcts (Zardal t2 67 54 ot 2OlA 13 of 2018 of Golkonda Police Station Pan and lu/s 272, 273.

420.

188 of I P.C.

and Section 7 (1) (2) (3) (51 and 26 of COTP Act, u/s 27o, 273 and 328 of I. P.C.

of Nacharam Police Station A.3 and 4.4 Manufacturing Pan Masala.

I 67 58 of 2018 61 ol 2Ol7 ot Karimnagar Police Stal iorr A.3 rvith Dealing 'lobacco roducts u/s 27o, 273 of l.P.C.

Transportation of Pan Masala 235 of 2018 I A.3 oI i 68r I of 2018 I I

Crlp 3 73 l_2018 and batch MSM. J -)- Patancheru Police Station Section 20 (2) read with 7

(2) of CoTP Act,2003 and Tobacco I A.1 and A.2 u/s 27o, 273 of l.P.C.

Section 20 (2) read with 7

(2) of COTP Act,2003 235 ot 2018 of Patancheru Police Station Transportation of Pan Masala and Tobacco o'7) 324, Bof Transportation of Khaini Packets A. 1 U/S 27 3, 6859 of 2O l8 26 ot 2Ol8 of Nakkapalli Police Station I. P. C, A.1 A.4 to u/s 324, 273, read with 34 of I.P.C. and u/s s9, 58 and 63 of FSS Act I Transportation of Khaini Packets 231 ot 2Ol8 of Visakhapatnam lV Town Police Station /\.1 U/3 273 of I.P.C. and u/s 1s6 (3) of Cr.P.C.

6955 of 20 l8 53 of 2O18 of Nakkapalli Police Station Transportation of Gutka Packets A.2 A.4 to u/s 27o, 273 of l.P.C.

U/S 54 and 59 of FSS Act and Section 20 of COTP Act 7O81of2018 C.C.No. l60 of 2O16 on the file of Judicial Magistrate of First Class at Ichapuram.

Manufacturing of Tobacco Products.

A.2 and A_3 u/s 27o, 273 of I.P.C.

U/S 54 and 59 of FSS Act and Section 20 of COTP Act 2l 82 16 of 201 8 C-C.No.159 of 2016 on the file of Judicial Magistrate of First Class at lchapuram.

Transportation of Tobacco products.

A.1 and A.2 UIS 273 ot I.P.C.

and under Section 22 read with 5 of COTP Act Transportation of Raia Kaini 84 of 2018 of Modugula Police Station T

Crlp 373 I _201f3 and batch MSM, J -4As the question involvcd in al1 the petitions is identical, I find that it is expedient to decide all the petitions by common order.

The petitioners filed thcse criminal petitions under Section 482 of Cr.P.C. on the ground that the local police are incompetent to take up investigation and to file charge sheet for the offence punishabie under Sections 54 and 59(1) of FSS Act. Whereas the allegations made in the charge sheet and the statements recorded by the police during investigation under Section 161(3) Cr.P.C. does not disclose the commission of offence punishable under Sections 27O and 273 of l.P.C. or any other offences referred in crrlumn No.4 of the Table referred supra. When the charge sheets and F.l.Rs do not disclose pnma facie material to conclude that they committed the above offences, the Court can exercise power under Section 482 of Cr.P.C. to quash the proceedings against the petitioners. During hearing, Sri P.Vikram and R.

Siva Sai Swaroop, learned counsel for the petitioners contended that though khaini is a Tobacco product, it would not fall within the definition of Section 3fi) of the FSS Act. Therefore, the police are incompetent to investigate into and file charge sheet, totally contravening the procedure prescribed under the provisions of FSS Act.

Crlp 3731_2018 and batch MSM, J -5FSS Act, Food Safety Officer alone is competent to draw samples and investigate into. Therefore, the police lacks inherent jurisdiction to investigate into the offences. On this ground alone, the proceedings against the petitioners for the offences punishable under Sections 54 and 59(1) FSS Act are liable to be quashed. Similarly, registration of crimes against the petitioners is also an illegality since local police are not competent to investigate into the offences.

Yet, another contention raised by the counsel for the petitioners is that none of the allegations made in the charge sheet and statements recorded by the police during investigation so also in F.I.Rs. does not disclose the basic ingredients to constitute the offence punishable under Sections mentioned in the table above.

Learned counsel for the petitioners relied on the judgment of High Court of Patna rendered in " Omkar Agencg a. The Food. Safetg and Standards Authoritg of Indtav in support of their contentions.

Per contra, the learned Public Prosecutor for the State for the States of Andhra Pradesh and Telangana contended that Tobacco is prohibited by the Central Government by amending I AIR 2016 Parl60

Crlp 373 l. 2018 and batch MSM. J -6the provisions of COTP Act, which came into force on 18.05.2003, whereby the trade and commerce, and production, supply and distribution of cigarettes and other tobacco products are prohibited. The sale and transportation of Tobacco products would constitute the offence punishable under Sections 270 and 273 of I.P.C., so also under Sections 54 and 59(i) FSS Act and prayeci to dismiss the criminal petitions. Similarly, manufacturing of Pan Masala is also contravention of provisions of FSS Act.

Learned Public Prosecutor for the State mainly contended that Chewing Tobacco is a food product in view of comprehensive delinition of food under Section 3 fi) of FSS Act since it is wider than the definition of food under Food Adulteration Act and placed relialce on the judgment of High Court of Bombay rendered in " Dhoritrr.al Industries Linited, Ghoda uot Pan Masala Products (4 Pvt- Ltd, Rajnrrndini Foods Pvt. Ltd, SDD Agencies htt.Ltd.., Hl"d Enterprises, Rqjat Industries Priaate Limited" ilttSS Food Processors o. State of Maharashtrd" and another judgment of High Court of Madras rendered in " J.Anbazhagan a. The Unlon oJ Indias"

' t-zrws (goN,r) 20 ll-9-te ' 2018 SCC Ont.ine t\,tad [] I

Crlp_373 I _2018 and batch MSM, J -7 - Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:

7) Whether the respondent/ Sub-Inspector of Police, is competent to inuestigate into the offence punishable under Sections 54 and 59(1) oJ FSS Act?

2) Whether the petitioners in all the petitions are found committing ang act with malicious intention, with knoutledge and rea,sort- to belieoe that such act likelg to spread. the infection of ang disease dangerous to life? And whether the petitioners selling or offering or exposing for sale as food or drink, ang article rl.lhich hos been rendered or has become noxious or is in o. state unfit for food or drink or reason to belieue that the same is noxious as food or drink? If so, are theg liable to be proceed.ed. for the offence punishable under Sections 27O and 273 IPC.?

POINTNo.Tz The first and foremost contention raised before this Court is that the respondents - Sub-lnspector of Police and the Inspector of Police are not competent to investigate into the offence punishable under Sections 54 and 59(1) of FSS Act. u Section 54 of .FSS Act d.eo.ls toith penaltg for food. containing ertraneous mater - Ang person whether bg

Crlp-3 73 I l0 I ti and batclr MSM, J himself or bg ang other person on his behalf manufactures Jor sale or stores or sells or distributes or imports ang article of food. for humq.n consumption contqining extraneous mqtter, shall be liable to q penaltg which mag extend. to one lakh rupees.

Section 59(i) o;f FSS Act dedls with punishment for unsafe Jood, - dng person uho, uhether bg himself or bg ang other person on his behalf, manufactures for sale or stores or sells or distributes or imporAs ang article of food for human consumption which is unsafe, shall be punishable,- (i) where such failure or co'at"avention does not result in injury."

Therefore, both the offences pertaining to sale, store and manufacturing of such food article, which is prohibited and unsafe for human consumption. The word 'food'is defined under Section 3(i) of FSS Act, which reads thus:

uFood ,n.|.e(,ns q.ng substq.nce, whether processed, partiallg processed. or unprocessed, rlhich is intended for hurraan consum,ption qnd includes pritno.ry food, to the extend defined in clquse (ZK) geneticqllg nodiJied or engineered food or food contoining such ingredients, infant food, packaged d.rinking utate", dlcoholic drink, chewing gum, and ang substance, includi'I.g wqter used into the food. during its mqnufdcturq preparq.tion or treqtment but does not include ang anitnal feed, live qllilmq.ls t.rnless theg ore prepared. or processed for placing on the market Jor human consumption, plo,'rts prior to harvesting, d.tugs and medicinal products, cosmetics, narcotic or psgchotropic substancesi Provided thq.t the Central Gouernment may d.eclare, bg notiJicqtion in the Offtlial Gqzette, ang other article as

Crlp_373 l_201 8 and batch MSM, J -9 food for the purposes of this Act having regards to its use, nature, substqnce or qualitg;"

Though the word 'food' as defined under section 3(i) of FSS Act is inclusive, the chewing tobacco was not included in Section 3[) of FSS Act. Manufacturing or transportation of Pan Masala is not an offence. ln " Godawat Pan Masala Products I.P. Ltd, and another a/s. Union of Indid" the Apex Court analyzed the definition of 'food' under Section 2(v) of the Prevention of Food Adulteration Act and Rules, 1955 as under:

"There is mertt in the contentions of the appellants. Rule 3 o.f the Maharashtra Preuention of Food Adulteratidn Rules, 1962 and the corresponding ntle in the God, Daman and Dtu Preuention of Food. Ad.ulteration Rules, 7982 suggest that the power giuen to the Food (Health) Authoritg is onlg d. pro tem pouer to deal with an emergent situation, such as outbreak of ang infectious disease, which nag be due to ang article o;f Jood. Certainlg, such pouter uould. include the power to ban 'for the time being" the sale oJ such injurious articles of Jood. Hence, there is a coresponding provision in Section 7(iu) of the Act. In other uord.s, tahen a contingencg envisaged bg Rule 3, or one similar thereto, arises and. it becomes laecessary Jor FHA to tdke immediate steps, FHA is empouered. to prohibit "for the time being' the injurious drticle concerned. and to take ang appropriate step "in the interest oJ public health". 4 (zool) z scc oa

Crlp_37.i l._20 t tl and batch MSM, J t(,r - On the collocation of the statutory provisions, it is not possible to dccept the stdtes' contention that Section 7(iv) is an independent source of pouer or that the 7964 amendment to Section /it:) had the effect o.f empoutering FHA to prohibit the sale of ang article "in the interest oJ public health". ?his conclusion is olso supported. bg its legislatiue history.

ft tua-s improper that despite the 7964 a.mend.ment tn Section 7(ia), the rules uere not correspond.inglg updated. Hou)eter, going strictlg bg the State Rules, uthich actuallg detennine the extent oJ the power oJ FHA, the argument of the States that the said amendment uas intend.ed to gioe a carte blanche to FHA cannot be dccepted. The potoer of the State FHA, which is discernible under Section 24(2)(4) read uith the State Rules, operates onlg for a temporq.ry period during which @n emergent situation erists which needs to be controlled. Section 7(iu) does not clothe FHA with the pouer to issue cr ban order for d longer period.

Euen assuming that gutka dnd. tobacco prod.ucts are injuries to herrlth, the pouer of their prohibition is onig uested. uith the Centrai Goaernnent and. not with the State Food. (Health) Authorities, Again, applging the principles oJ harmonious construction, it is not possible to hold. thdt Section 7(io) is an independent source o.f power. The pouer of the State und.er Section 7(it)) of the Act is statutory; absolute to the extent prouided. therein, and limited to the extent indicated. bg Section 2O(1-A) of the Act.,,

Crlp -3731 2018 and batch MSM, J - ll - The definition of the word 'food' under Section 3[) of FSS Act is identical to the definition of the word 'food' undet Section 2(v) of Prevention of Food Adulteration Act and Rules, 1955 made therein, chewing tobacco is not included in the definition of 'food' under Section 3[) ofFSS Act, but it is a prohibited product under the COTP Act, 2O03.

Therefore, the Inspector of Police and the Sub-lnspector of Police are incompetent to investigate into the offence punishable under the provisions of FSS Act. Even assuming that chewing tobacco is a food within the definition provided under Section 3[i) of FSS Act, the Food Safety Officer is empowered to investigate into the offence punishable under the provisions of the FSS Act. In " M/s.Pepsico India Holdings (Pltt) Ltd., and Another a. Sta:te o:f U.P.s" the Allahabad High Court had an occasion to deal with similar question, extracted the definition of the word 'food' under Section 3(i) of FSS Act, so also the word 'food additiue'as dehned under Section 3(k) of FSS Act, it means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, 5 20l l(2) crimes 250

Crlp_373 I 201 u and batch MSM, J preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by products becoming a competent of or otherwise affccting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional quaiities. Therefore, chev,,ing tobacco is nct covered by food additive. Section 4l of FSS Act deals with powers of search, seizure, investigation, prosecutiorl and procedure thereto and it is appropriate to extract the same:

'41. Pouer of sedrch, seizure, inoestigdtion, prosecution and proced.ure thereof- (7) Notwithstqnding d.ngthing contdined in sub-section (2) of Section 37, the Food Saletg Officer mag search any place, selze ang article of Jood or ad.ultersnt, if there is a reasonable doubt qbout them being involoed in commission of ang olJence relating to food. and. sholl thereafter info"m the designqted o;fficer of the o.ctions taken bg him in writing: Provicled tho.t no seqrch shall be deemed to be irregular bg reason onlg of the fact that uitnesses for the seq.rch qre not i^ho.bitq.nts of the locdlltg in uhich the place searched. is situqted-

(2) Saoe .rs in this Act otherwise expressly prouided, provisions of the Cod.e of Criminal Procedure, 7973 relating to serrrch, seizure, summon, inaestigdtion and prosecution, shall applg, as far as mag be, to all action td.ken bg the Food Sdfetg Officer und.er this Act.,

Crlp_373 l_2018 and batch MSM,J - 13 - According to Section 42 of FSS Act, the Food Safety officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis; the Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to designated oflicer with a copy to Commissioner of Food Safety; the Designated Officer, after scrutiny of the report of the Pood Analyst, shall decide as to whether the contravention is punishable with imprisonment or hne only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.

Crlp 373 I 2018 and batch MSM. J communicate his decision to the Designated oflicer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be, and such communication shall also be sent to the purchaser if the sample was taken under Section 40 of the Act. Thus, Section 42 of the FSS Act laid down procedure to be followed by the Food Safety Officer appointed under this Act to investigate and file complaint before the competent courts. In view of specific procedurt: prescribed in the FSS Act, the Food Safety Olficer akrne is competent to launch the prosecution aftcr compliancc of thc proccdurc conte mplated under subsections (2) to (+) of Section 42 of FSS Act. In " Omkar Agencg v. The Food SaJetg and Standard.s Authoritg of Indi&" the Division Bench of High Court of Patna held that chewing tobacco is not a food product as deiined under Section 3 (i) of FSS Act.

The High Court of Madras in " J-Anbazhagdn a. The Union of IndtcC' (referred supra) and the High Court of Bombay in " Dhariwal Industries Limited, Ghodautat Pqn Masala Products (4 Put. Ltd, Rajnandini Foods h)t. Ltd, SDD Agencies Pvt.Ltd., Hlra Enterprises, Rajat Industries priuate 6 AIR 2016 Pat t60

Crlp_373 l_201 8 and batch MSM, J - 15 - Limited, MSS Food Processors a. Sta,te of Maharashtrd' (referred above) held that chewing Tobacco are food products within the dehnition of food as defined under Section 3 fi) of FSS Act and the police are competent to investigate into the offence along with the offence punishable under I.P.C. In " Ganesh Pandurang Jadhao v. State of Maharashtrd" an identical issue came up for consideration, wherein the Division Bench of Bombay High Court took different view and held that the Pood Safety Officer alone is competent to investigate and to {ile charge sheet against the persons who committed the offence under the provisions of FSS Act. Therefore, later judgment in " Ganesh Pandurang Jad.hao v. State oJ Maharashtra' (referred above) has to be relied upon for the purpose of deciding the present cases.

Since these two judgments are rendered by the coordinate bench of same High Court and the law laid down in Dhariutal Industries Limited's case (referred above) was adverted to and considered, but came to a different conclusion. Moreover, the judgment of High Court of Madras h " J.Anbazhagan a. The Unlon of Ind.id (referred supra) is based on the judgment of High Court of Bombay in Dhariuol Industries Limited.'s case (referred above).

Crlp_373 I 2018 and batch MSM, J - 16 - ln'Joshi u. Sto'te of Keralas " Kerala High Court held that tobacco and tobacco products are not food as defined under Section 3(i) of FSS Act as it is not a food product as specified in regulation 2.3.4 ol the regulations and the tobacco and tobacco products are to be manufhctured in accordance with the provisions of COTP Act and Rules therein. Food Safety Oflicer has no right to take action against tobacco and tobacco products by virtue ol Government order.

In another judgment in Jagavilas Tobacco Traders LLP rep. bU its Partner o. Ihe Designated O:fJicer, Pood Safetg & Drugs Control Dept. (W.P.No.2 i of 2Ol7l the Madras High Court adverted to the various provisions of FSS Act and Food Adulteration Act and concluded that when the petitioner was manufacturing of fine quality of tobacco prior without violating the provisions of law, the proceedings against him are to be quashed- The Madras High Court relied on its judgment in Manufacture1 M/aTejram Dharam Paul, Maunnandi, Bhatindq. District Punjab and another a. Thc Food SaJetg Inspector, Ambasamudrcm (Cr1.O.P.(MD) No.5505 of 2O15 decided on 27 .O4 .2015) wherein it was held that tobacco shall not be used as ingredients in any food products, as it does not 8 20t3 crl.t-.J.2189

Crlp_373 I 2018 and batoh MSM, J -17come within the purview of the food product, the FSS Act has no application and that the manufacturer of gutka and pan masala cannot be proceeded under the FSS Act as Tobacco covered under the COTP Act.

Similarly in M/s.Vaipugaigilai Urpathigalargal Matrum Vtrpanaigalargdl Na'lrr Sangam v. The Commtssloner of Food Safetg (W.P.(MD) No. 10319 of 2ol7l an identical question whether chewing tobacco manufactures comes within the purview of FSS Act and the Food Safety Officer is competent to investigate and to file charge sheet. It was held that chewing tobacco is covered by COTP Act and Food Safety Officer is not an authority to interfere with the business of the petitioner. One of the contentions raised by the learned Public Prosecutor is that when the petitioner/accused allegedly committed the offences both under FSS Act and I.P.C., police can investigate into the offences punishable under the provisions of I.P.C. and FSS Act.

In view of Section 155 (4) of Cr.P.C., no doubt, police are competent to investigate into the offences when the accused committed both cognizable and non-co gnizable offences. Section 155 (4) of Cr.P.C. reads thus:

Crlp_373 I 2018 and batch MSM. J , tx - "section 155 {4) of Cr.P.C.:

Where a case relates to two or more offences of which at least one is cognizable, the case shatt bc deemed to be a cognizable case, notwithstanding that the other olfences are non-cognizable." But the FSS Act is a different enactment, power was conferred only on Food Safety officer to investigate into offence. Though police are competent to investigate into the offences punishable under I.P.C., they cannot investigate into the offence punishable under the provisions of FSS Act in view of the power conferred on Food Safety Officer and the procedure for investigation is totally distinct from the investigation prescribed for the offence punishable under I.P.C. When the police did not conduct investigation as specified in the provisions of FSS Act, the investigation done by the police is vitiated due to noncompliance of mandatory procedure prescribed under FSS Act. Therefore, on this ground the contention of the Public Prosecutor cannot be upheld.

In view of the law declared by various Courts referred supra, the policc cannot take cogni zance of the offence, to investigate into and to file charge sheet against the petitioners for

Crlp_3731 201 8 and batch MSM, J -19the offence punishable under Sections 54 and 59(1) of FSS Act, as they were not empowered under the FSS Act to launch the prosecution, but only Food Safety Officer appointed by the Government alone is competent to launch prosecution for those two offences. This view is supported by the Judgment of the Allahabad High Court in M/s.Pepsico India Holdings (Mf Ltd. case referred supra and the Judgment of Patna High Court in " Dharmendra Kutnrrr @ Raja a. The State of Bihane". The Inspector of Police, Ichapuram and Sub-lnspector of Police, Kanchili, without any authority launched the prosecution against the petitioners in C.C.Nos. 159 and 160 of 2076 on the file of Judicial Magistrate of First Class, Ichapuram, therefore, the proceedings under Sections 54 read with 59 of FSS Act are liable to be quashed on the sole ground. The point is answered accordingly.

POINTNo.2:

The other contention of the counsel for the petitioners is that the allegations made in the complaint/charge sheet, if accepted on its face value, would not constitute any offence punishable under Sections 270 and 273 of l.P.C. The offence under Section 27O is punishable with imprisonment of either e crt.w.P.No.l lq of 20l6

Crtp 3 73 1_20 I 8 and batch MSM, J _i0_ description for a term which may extend to two years or with fine or with both and the offence under Section 273 I.P.C. is punishable with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.

The offence punishable under Section 27O l.P.C. is cognizable whereas the offence punishable under Sec+.ion 273 is non-cognizable. But when the police received information about the commission of both cogr,izable and non-cognizable offences, the police can investigate into both the offences in view of Section 155 (4) Cr.P.C. Thereforc, investigation donc by the Inspector and Sub-lnspectur of Police in both the Calendar Cases is in accordance with Section 155(a) Cr.P.C. and therefore the Inspector of Police or Sub-Inspector of Police are competent to investigate into tl-re offence punishable under Sections 270 and 273 t.P.C.

Section 27o of I.P.C. deals with committing any act with the knowledge or reason to belie ve that such act is likely to spread any infection or any disease, dangerous to life, but the act done by the petitioners is only transportation of Pan Masala, Khaini and chewing tobacco in different vehicles.

Crlp_3 731 2018 and batch MSM, J -2t - Therefore, transportation of Pan Masala, khaini and chewing tobacco would not spread infection or any disease dangerous to life. To constitute an offence punishable under Section 27O I.P.C., the petitioner must have done an act which spreads infection of any disease dangerous to human life. The charge sheet and the statements recorded by the police during investigation does not disclose that the said transportation of khaini or chewing tobacco would spread infection or any disease dangerous to any human life.

According to the West's legal thesaurus/ dictionary, the word 'infect' means contaminate, corrupt, pollute, imbue, impress, animate. The word 'disease' means deviation from the healthy or normai condition of any of the functions or tissues of the body (occupational disease), sickness, in{irmity, disorder, illness, affliction, weakness, distemper, ill health, ailment, defect, handicap, disability, breakdown, malady, abnormalitSr, plague, complaint derangement, attack, discomfort, delicate constitution, delicate condition, debility, suffering, malaise, nausea, patholos/, frailty, attack, cancer, cholera, virus, "bug", syndrome. According to Section 33 of I.P.C., the word 'act' denotes as well a series of acts as a single act; the word 'omission' denotes as well a serious of omissions as a single omission. Thus, it

Crlp 373 I 201 ll and batch MSM. J - llmeans, anything done by anv of the persons. Transportation of Khaini, Pan Masala or chewing tobacco itself would not spread any infection or disease and if the khaini is chewed, it may cause danger to health of any individual, but transportation will not spread any infection or disease dangerous to health. Therefore, the allegations made in the complaint i.e. transportation of chewing tobacco or Khaini or Pan Masala also do ot constitute an offence punishable under Section 27O ol l.P.C. The other offcnce ailegedly committed by the petitioners is punishable under Section 273 I.P.C. which deals with punishment for sale, offers or exposes for sale food or any article which has been rendered or has become noxious. The word 'noxious' is not defined in I.P.C.

As per the dictionary meaning, noxious means harmfui, deleterious, injurious, poisonous. Therefore, the sale or offers or exposes for sale of Pan Masala chewing tobacco or khaini are the prohibited products under the COTP Act, 2O03. 'Transportation' of such noxious food is not included in the offence punishable under Section 273 I.P.C., only few acts were included i.e., sale of noxious food or drink is an offence.

Thus the allegations made in the charge sheet coupled with the statemcnts recorded b-v thc police during investigation under

Crlp_3731 _2018 and batch MSM, J -23 - Section 161 (3) Cr.P.C do not disclose ingredients to constitute an offence punishable under Section 273 l.P.C. However, it is consistent view of the prosecution from the beginning that these petitioners were found transporting Pan Masala, khaini and chewing tobacco in the different vehicles referred supra, but, transportation of noxious food viz., khaini and chewing tobacco is not included in the offence punishable under Section 273 I.P.C. Manufacturing Pan Masala is not included in Section 273 of I.P.C., hence, manufacturing of Pan Masala is not an offence since it is not a noxious food.

Therefore, I lind no pima facie material against the petitioners to proceed against them for the offence punishable under Section 273 l.P.C. accepting the allegations made in the charge sheets and the statements recorded by the police under Section 161(3) Cr.P.C. and F.I.Rs. issued against the petitioners. The scope of Section 482 of Cr.P.C was time and again discussed in catena of perspective pronouncements of the Apex Court and in a Constitutional Bench judgment of the Apex Court in "State of Haryana a. Bhajan lalro," seven guidelines were laid down and they are as under:

r''] Ie92 Supp (l) SCC 315

Crlp-373 I l0I li and batch MSM. J -!+- {q.) Where the allegations mqde in the First Informo.tion Report or the complajnt, even if theg qre t(rken dt their ja.ce uqlue and. accepted in their entiretg d.o not prima Jacie constitute ang offence or make out q cq.se o.gqinst the dccused;

(b) Where the allegations in the First Information Report and other materials, if ang, accompqnging the F.I.R. do not disclose a cognizdble ojfence, justifging an int)estigation bg police ofJicers under Section 756(1) of the Cod.e except under a order of a Magistrate tuithin the puraieu of Section 755(2) oJ the Code;

(c) Where the urtcontrouerted q.llegdtions rnade in the FIR or 'complaint and the evidence collected in support oJ the same do not disclose the commission oJ ang offence q.nd make out q cqse against the accused;

(d) Where the allegations in the FIR do not constitute q cognizqble offence but constitute onlg a non-cognizable offence, no inuestigation is permitted bg a police officer without qn order oJ a Magistrate ols contemplated. und.er Section 755(2) o! the Cod.e;

(e) Where the allegations rnad€ in the FIR or colmplcrilrt dre so absurd. and. lnherentlg improbable on the basis oJ which no prwd.ent person cqn euer reach a just conclusion that there is sufJicient ground for proceeding against the accused:

(l) Where there is qn express legal bar engrafted in dng of the provisions of the Cod.e or the concerned

Crlp 373 I 2018 and batoh MSM, J Act (under which s criminal proceed.ing is instituted) to the institution qnd continuance of the proceedings and/or uhere there is a specific provision in the Code or the concemed Act, providing efficacious redress for the grieuance oJ the dggrieved pdrtg;

(g) Where a criminal proceeding is manifestlg attend.ed. tvith malafide and/or where the proceed.ing is maliciouslg instituted. uith an ulterlor motive for uredking uengeance on the accused and oith a view to spite him due to prtvate atd personal grudge. In the i'?.stq.nt cdse, the dllegdtions rnqde in the cornplaint, do clearlg constitute a cognizable offence justiJication and. this ccse does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.

In view of the guidelines laid down by the Apex Court in " State of Hdrydnd o. Bhajan la.t' (referred supra), the police are incompetent to take cognizance of the offences punishable under Sections 54 and 59(1) of FSS Act, investigating into the offence along with the other offences under the provisions of LP.C. and filing charge sheet is a grave illegality, as the Food Safety Officer alone is competent to investigate and to file charge sheet following the Rules laid down under Sections 41 and 42 of FSS Act and the Judgments of the Allahabad High Court and Patna High Court are clear that the police are not competent to investigate and to file charge sheet.

Cdp_373 l_2018 and batch MSM, J - )6Therefore, in view of the law declared in various judgments referred supra, chewing tobacco and khaini are not the food within the definition of Section 3(l) of FSS Act and the manufacture, sale or exposing for sale of tobacco etc., is governed by the provisions ofCOTP Act, but not by FSS Act and so also the provisions of IPC.

As discusseci in the earlier paragraphs, the respondents are incompetent to investigate the offence punishable under Sections 54 and 59(1) of FSS Act and the aliegations in the charge sheet coupled with the statements does not disclose the commission of the offence pur-rishable under Section 273 of LP.C. since transportation of noxious food is not included under Section 273 of I.P.C. The act done by the petitioners i.e. transportation of khaini and chewing tobacco though dangerous to human life, it would not spread or infect or cause any disease on account of trarlsportation and if those products are consumed by human being, it would certainly cause damage to the health. Therefore, transportation of khaini or chewing tobacco is not by itself is not an offence under Section 27O of I.P.C. and it would fall within Section 27O of I.P.C.

In Criminal Petition Nos.3765, 3266 and 6Z55 of 2O1B (sl.Nos.3, 4 ar-rd t3) police registered case for the offence

Crlp 3731 2018 and batch MSM, J -27 _ punishable under Section 7 (ll (21 (3) (5) and Section 26 of COTP Act, wherein the accused r.r,ere found manufacturing Pan MasalaBut Pan Masala is not a Tobacco product to fall within the purview of COTP Act. Therefore, the provisions of COTP Act have no application, thereby registration of crime for violation of Sections 7 (ll (21 (3) (5) and Section 26 of COTP Act is an illegality.

In Criminal Petition Nos.681 I of 6816 of 2O18 (Sl.No. 15 and 16) police registered case for the offence punishable under Section 20 (21 read with 7 (2) of COTP Act since the accused found transporting Pan Masala and Tobacco.

According to Section 7 (21 of COTP Act, no person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or in its label, the specified warning.

Section 7 (3) of COTP Act says that no person shall import cigarettes or any other Tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes, or any other Tobacco products so imported by him bears thereon, or on its labei, the specified warning. Since the petitioners are transporting Tobacco products

Crlp 373 l._2018 and batch MSM, J -28without any label, it rvould fall within the provisions o[ Section 7

(3) of COTP Act.

In Criminal Petition Nos.70B1, 8216 and 7851 of 2018 (s1.Nos.20, 21 and 22), police registered a case against the petitioners for the offence punishable under Sections 20 and 22 of COTP Act. Since the petitioners are found manufacturing and transportation of Tobacco products without any label prescribed by the Act is violation of Section 7 (1) arid 7 (3) of COTP Act, which is punisherble under Section 20 of the Act. Section 5 of COTP Act, deals with prohibition of advertisement of cigarettes and other tobacco products, w'hich is punishable under Section 22 of COTP Act, but no such allegation is found in the entire record at attract the offence punishable under Section 22 of COTP Act.

The material on record in Crime Nos.235 of 2018 of Patancheru Police Station, Crimc No.84 of 2018 of Modugula Police Station ancl in C.C.Nos- 159 and 160 of 2016 on the hle of Judicial Magistrate of First Class at Ichapuram pima facie disclosed commission of offence punishable under Section 2O (2) read with 7 (2l,, 20 and Section 22 of COTP Act, hence the proceedings against the petitioners in Crime Nos.235 of 2018 of Patancheru Police Station, Crime No.g4 of 2O1B of Modugula

Crlp_3731_2018 and batch MSM, J -29 - Police Station and in C.C.Nos. 159 and 160 of 2016 on the file of Judicial Magistrate of First Class at Ichapuram for the offences punishable under the provisions ofCOTP Act cannot be quashed. In the result, these criminal petition Nos. 3731, 3634, s765, 3766, 5966, 5967, 5968, 5969, 5970, 5971, 5972, 6754, 6755, 6758, 6859, 6954 and 6955 of 2018 are allowed. The numbers are given in the table proceedings (details of cnme petitioners herein are hereby referred supra) against the quashed. No costs.

Criminal Petitions Nos. 681 1 , 6816, 7O8l, 8216 and 7851 of 2O18, are partly allowed. The proceedings against the petitioners in Crime Nos.235 of 2018 of Patancheru Police Station, Crime No.84 of 2O18 of Modugula Police Station and in C.C.Nos. 159 and 160 of 2016 on the file of Judicial Magistrate of First Class at Ichapuram for the offences punishable under Indian Penal Code and FSS Act are only hereby quashed while permitting to proceed against the petitioners for the offences punishable under the provisions of COTP Act. No costs. Miscellaneous petitions, if any, pending in these criminai petitions shall stand closed.

JUSTICE M. SATYANARAYANA MURTHY 27.O4.20t8 Ksp