THE HON'BLE SRI JUSTICE [ENTITY] CRIMINAL PETITION Nos.3731, 3634, 3765, 3766, 5966, 5967, 5968, 5969, 5970, 5971, 5972, 6754, 6755, 6758, 6811, 6816, 6859, 6954, 6955, 7081, 8216 and 7851 of 2018 COMMON ORDER
These criminal petitions are filed under [SECTION] of [ACT] (for short "[ACT]") 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. Crl.P.No. Crime Accused Offences Nature of No Number Number allegedly offence committed 1 3731 of 2018 34 of 2018 of A.1 U/S 328, Transportation Manakondur 270 and [SECTION] of [ENTITY] Police Station of [ACT] and Tobacco Products 2 3634 of 2018 [SECTION] of 2018 of A.2 and U/[SECTION], Transportation Nakkapalli A.3 [SECTION], 328 and of Khaini Police Station 120-B of Packets [ACT] 3 3765 of 2018 509 of 2017 A.1 U/[SECTION], Manufacturing of Nacharam [SECTION], [SECTION]0, [ENTITY]. Police Station 188 of [ACT] and [SECTION] and [SECTION] of [ACT] (for short "[ACT] A.2 U/[SECTION], Manufacturing of Nacharam [SECTION], [SECTION]0, [ENTITY]. Police Station 188 of [ACT] and [SECTION] and [SECTION] of [ACT], 5 5966 of 2018 215 of 2018 A.1 U/S 188, Transportation of Nacharam 272, [SECTION] of of [ENTITY] Police Station [ACT] Crlp 3731 2018 and batch MSM, J 6 5967 of 2018 215 of 2018 A.2 U/S 188, Transportation of Nacharam 272, [SECTION] of of [ENTITY] Police Station [ACT] 7 5968 of 2018 215 of 2018 A.3 U/S 188, Transportation of Nacharam 272, [SECTION] of of [ENTITY] Police Station [ACT] 8 5969 of 2018 215 of 2018 A.4 U/S 188, Transportation of Nacharam 272, [SECTION] of of [ENTITY] Police Station [ACT] 9 5970 of 2018 215 of 2018 A.5 U/S 188, Transportation of Nacharam 272, [SECTION] of of [ENTITY] Police Station [ACT] 10 5971 of 2018 372 of 2018 A.1 U/S 188, Manufacturing of Medipally 272, [SECTION] and packing of Police Station read with 34 [ENTITY] of [ACT] 11 5972 of 2018 372 of 2018 A.2 U/S 188, Manufacturing of Medipally 272, [SECTION] and packing of Police Station read with 34 [ENTITY] of [ACT] 12 6754 of 2018 13 of 2018 of A.3 U/[SECTION], Sale of Pan Golkonda 188 of [ACT] Masala and Police Station and Section Tobacco 59 (i) [ACT] Products (Zarda) 13 6755 of 2018 509 of 2017 A.3 and U/[SECTION], Manufacturing of Nacharam A.4 [SECTION], [SECTION]0, [ENTITY]. Police Station 188 of [ACT] and [SECTION] and [SECTION] of [ACT], 14 6758 of 2018 61 of 2017 of A.3 U/[SECTION], Dealing with Karimnagar [SECTION] and 328 Tobacco Police Station of [ACT] products 15 6811 of 2018 235 of 2018 A.3 U/[SECTION], Transportation of [SECTION] of [ACT] of [ENTITY] Patancheru [SECTION] (2) and Tobacco Police Station read with 7 (2) of [ACT] 16 6816 of 2018 235 of 2018 A.1 and U/[SECTION], Transportation of A.2 [SECTION] of [ACT] of [ENTITY] Patancheru [SECTION] (2) and Tobacco Police Station read with 7 (2) of [ACT] 17 6859 of 2018 [SECTION] of 2018 of A.1 U/[SECTION], Transportation Nakkapalli [SECTION], 328, of Khaini Police Station 120 - B of Packets [ACT] 18 6954 of 2018 231 of 2018 A.1 to U/S 328, Transportation of A.4 [SECTION], 188 of Khaini Visakhapatnam read with 34 Packets IV Town of [ACT] and Police Station U/S 59, 58 and 63 of [ACT] 19 6955 of 2018 53 of 2018 of A.1 U/[SECTION] of Transportation Nakkapalli [ACT] and of Gutka Police Station U/S 156 (3) Packets of [ACT] Crlp 3731 2018 and batch MSM, J 20 7081 of 2018 C.C.No.160 A.2 to U/[SECTION], Manufacturing of 2016 on A.4 [SECTION] of [ACT] of Tobacco the file of U/[SECTION] and Products. Judicial 59 of [ACT] Magistrate of and [SECTION] of COTP Ichapuram. [ACT] [CASE NUMBER] and U/[SECTION], Transportation of 2016 on A.3 [SECTION] of [ACT] of Tobacco the file of U/[SECTION] and products. Judicial 59 of [ACT] Magistrate of and [SECTION] of COTP Ichapuram. Act [SECTION] 7851 of 2018 84 of 2018 of A.1 and U/[SECTION] of [ACT] and of Raja Kaini Police Station under [SECTION] of [ACT]
As the question involved in all the petitions is identical, I find that it is expedient to decide all the petitions by common order.
The petitioners filed these criminal petitions under [SECTION] of [ACT] on the ground that the local police are incompetent to take up investigation and to file charge sheet for the offence punishable under [SECTION] and [SECTION] of [ACT]. Whereas the allegations made in the charge sheet and the statements recorded by the police during investigation under [SECTION] [ACT] does not disclose the commission of offence punishable under [SECTION] and [SECTION] of [ACT] or any other offences referred in column No.4 of the Table referred supra. When the charge sheets and F.I.Rs do not disclose prima facie material to conclude that they committed the above offences, the Court can exercise power under [SECTION] of [ACT] to quash the proceedings against the petitioners.
During hearing, Sri [ENTITY] and [ENTITY], learned counsel for the petitioners contended that though khaini is a Tobacco product, it would not fall within the definition of [SECTION] of the [ACT]. Therefore, the police are incompetent to investigate into and file charge sheet, totally contravening the Crlp 3731 2018 and batch MSM, J procedure prescribed under the provisions of [ACT]. Under the [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 [SECTION] and [SECTION] [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 "[PRECEDENT]" 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 the provisions of [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 [SECTION] and [SECTION] of [ACT], so also under [SECTION] and [SECTION] [ACT] and prayed to dismiss the criminal AIR 2016 Pat160 Crlp 3731 2018 and batch MSM, J petitions. Similarly, manufacturing of [ENTITY] is also contravention of provisions of [ACT].
Learned Public Prosecutor for the State mainly contended that Chewing Tobacco is a food product in view of comprehensive definition of food under [SECTION] of [ACT] since it is wider than the definition of food under [ACT] and placed reliance on the judgment of High Court of Bombay rendered in "Dhariwal Industries Limited, Ghodawat [ENTITY] Products (I) Pvt. Ltd, Rajnandini Foods Pvt. Ltd, SDD Agencies Pvt.Ltd., Hira Enterprises, Rajat Industries Private Limited, [PRECEDENT]" and another judgment of High Court of Madras rendered in "[PRECEDENT]"
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
1) Whether the respondent/ Sub-Inspector of Police, is competent to investigate into the offence punishable under [SECTION] and [SECTION] of [ACT]?
2) Whether the petitioners in all the petitions are found committing any act with malicious intention, with knowledge and reason to believe that such act likely to spread the infection of any disease dangerous to life? And whether the petitioners selling or offering or exposing for sale as food or drink, any article which has been rendered or has become noxious or is in a state unfit for food or drink or reason to believe that the same is noxious as food or drink? If so, are they liable to be proceeded for the offence punishable under [SECTION] and [SECTION] [ACT].?
LAWS (BOM)-2012-9-29 2018 SCC OnLine Mad 1231 Crlp 3731 2018 and batch MSM, J P O I N T No.1:
The first and foremost contention raised before this Court is that the respondents - Sub-Inspector of Police and the Inspector of Police are not competent to investigate into the offence punishable under [SECTION] and [SECTION] of [ACT].
"[SECTION] of [ACT] deals with penalty for food containing extraneous mater - Any person 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 containing extraneous matter, shall be liable to a penalty which may extend to one lakh rupees.
[SECTION] of [ACT] deals with punishment for unsafe food, - 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) where such failure or contravention 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] of [ACT], which reads thus:
"Food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extend 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 purposes of this Act having regards to its use, nature, substance or quality;"
Crlp 3731 2018 and batch MSM, J Though the word 'food' as defined under [SECTION] of [ACT] is inclusive, the chewing tobacco was not included in [SECTION] of [ACT]. Manufacturing or transportation of [ENTITY] is not an offence. In "Godawat [ENTITY] Products I.P. Ltd. and another v/s. Union of India4" the Apex Court analyzed the definition of 'food' under [SECTION] of the [ACT] as under:
"There is merit in the contentions of the appellants. [SECTION] of the [ACT] and the corresponding rule in the Goa, [ACT] suggest that the power given to the Food (Health) Authority is only a pro tem power to deal with an emergent situation, such as outbreak of any infectious disease, which may be due to any article of food. Certainly, such power would include the power to ban "for the time being" the sale of such injurious articles of food. Hence, there is a corresponding provision in [SECTION] of the Act. In other words, when a contingency envisaged by [SECTION], or one similar thereto, arises and it becomes necessary for FHA to take immediate steps, FHA is empowered to prohibit "for the time being" the injurious article concerned and to take any appropriate step "in the interest of public health".
On the collocation of the statutory provisions, it is not possible to accept the states' contention that [SECTION] is an independent source of power or that the 1964 amendment to [SECTION] had the effect of empowering FHA to prohibit the sale of any article "in the interest of public health". This conclusion is also supported by its legislative history.
It was improper that despite the 1964 amendment in [SECTION], the rules were not correspondingly updated. However, going strictly by the State Rules, which actually determine the extent of the power of (2004) 7 SCC 68 Crlp 3731 2018 and batch MSM, J FHA, the argument of the States that the said amendment was intended to give a carte blanche to FHA cannot be accepted. The power of the State FHA, which is discernible under [SECTION] with the State Rules, operates only for a temporary period during which an emergent situation exists which needs to be controlled. [SECTION] does not clothe FHA with the power to issue a ban order for a longer period.
Even assuming that gutka and tobacco products are injuries to health, the power of their prohibition is only vested with the Central Government and not with the State Food (Health) Authorities.
Again, applying the principles of harmonious construction, it is not possible to hold that [SECTION] is an independent source of power. The power of the State under [SECTION] of the Act is statutory; absolute to the extent provided therein, and limited to the extent indicated by [SECTION] of the Act." The definition of the word 'food' under [SECTION] of [ACT] is identical to the definition of the word 'food' under [SECTION] of [ACT] made therein, chewing tobacco is not included in the definition of 'food' under [SECTION] of [ACT], but it is a prohibited product under the [ACT].
Therefore, the Inspector of Police and the Sub-Inspector of Police are incompetent to investigate into the offence punishable under the provisions of [ACT]. Even assuming that chewing tobacco is a food within the definition provided under [SECTION] of [ACT], the Food Safety Officer is empowered to investigate into the offence punishable under the provisions of the [ACT].
In "[PRECEDENT]" the Allahabad High Court had an occasion to deal 2011(2) Crimes 250 Crlp 3731 2018 and batch MSM, J with similar question, extracted the definition of the word 'food' under [SECTION] of [ACT], so also the word 'food additive' as defined under [SECTION] of [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, 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 affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities. Therefore, chewing tobacco is not covered by food additive.
[SECTION] of [ACT] deals with powers of search, seizure, investigation, prosecution and procedure thereto and it is appropriate to extract the same:
"41. Power of search, seizure, investigation, prosecution and procedure thereof- (1) Notwithstanding anything contained in [SECTION], the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food and shall thereafter inform the designated officer of the actions taken by him in writing:
Provided that no search shall be deemed to be irregular by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated.
(2) Save as in this Act otherwise expressly provided, provisions of the [ACT] relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer under this Act."
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According to [SECTION] of [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 officer with a copy to Commissioner of Food Safety; the Designated Officer, after scrutiny of the report of the Food Analyst, shall decide as to whether the contravention is punishable with imprisonment or fine 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. The commissioner of Food Safety shall, if he so deems fit decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years or a special court in case of offences punishable with imprisonment for a term exceeding three years where such special court is established and in case no special court is established, such cases shall be tried by a court of ordinary jurisdiction; The Commissioner of Food Safety shall communicate his decision to the Designated officer 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] of the Act.
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Thus, [SECTION] of the [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 procedure prescribed in the [ACT], the Food Safety Officer alone is competent to launch the prosecution after compliance of the procedure contemplated under [SECTION] of [ACT].
In "[PRECEDENT]" the Division Bench of High Court of Patna held that chewing tobacco is not a food product as defined under [SECTION] of [ACT].
The High Court of Madras in "[PRECEDENT]" (referred supra) and the High Court of Bombay in "Dhariwal Industries Limited, Ghodawat [ENTITY] Products (I) Pvt. Ltd, Rajnandini Foods Pvt. Ltd, SDD Agencies Pvt.Ltd., Hira Enterprises, Rajat Industries Private Limited, [PRECEDENT]" (referred above) held that chewing Tobacco are food products within the definition of food as defined under [SECTION] of [ACT] and the police are competent to investigate into the offence along with the offence punishable under [ACT]
In "[PRECEDENT]"
an identical issue came up for consideration, wherein the Division Bench of Bombay High Court took different view and held that the Food Safety Officer alone is competent to investigate and to file charge sheet against the persons who committed the offence under the provisions of [ACT].
AIR 2016 Pat160 2016 Law Suit (Bom) 234 Crlp 3731 2018 and batch MSM, J
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Therefore, later judgment in "[PRECEDENT]" (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 Dhariwal 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 in "[PRECEDENT]" (referred supra) is based on the judgment of High Court of Bombay in Dhariwal Industries Limited's case (referred above).
In "[PRECEDENT]" Kerala High Court held that tobacco and tobacco products are not food as defined under [SECTION] of [ACT] as it is not a food product as specified in [SECTION] of the regulations and the tobacco and tobacco products are to be manufactured in accordance with the provisions of [ACT] and Rules therein. Food Safety Officer has no right to take action against tobacco and tobacco products by virtue of Government order.
In another judgment in Jayavilas Tobacco Traders LLP rep. by its Partner v. The Designated Officer, Food Safety & Drugs Control Dept. ([CASE NUMBER]) the Madras High Court adverted to the various provisions of [ACT] and [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 Manufacturer, M/s.[ENTITY], Maurmandi, Bhatinda District Punjab and another v. The 2013 Crl.L.J. 2789 Crlp 3731 2018 and batch MSM, J
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Food Safety Inspector, Ambasamudram ([CASE NUMBER] decided on 27.04.2015) wherein it was held that tobacco shall not be used as ingredients in any food products, as it does not come within the purview of the food product, the [ACT] has no application and that the manufacturer of gutka and pan masala cannot be proceeded under the [ACT] as Tobacco covered under the [ACT].
Similarly in [PRECEDENT] an identical question whether chewing tobacco manufactures comes within the purview of [ACT] and the Food Safety Officer is competent to investigate and to file charge sheet. It was held that chewing tobacco is covered by [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 [ACT] and [ACT], police can investigate into the offences punishable under the provisions of [ACT] and [ACT].
In view of [SECTION] of [ACT], no doubt, police are competent to investigate into the offences when the accused committed both cognizable and non-cognizable offences. [SECTION] of [ACT] reads thus:
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"[SECTION] of [ACT]:
Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."
But the [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 [ACT], they cannot investigate into the offence punishable under the provisions of [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 [ACT] When the police did not conduct investigation as specified in the provisions of [ACT], the investigation done by the police is vitiated due to non-compliance of mandatory procedure prescribed under [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 police cannot take cognizance of the offence, to investigate into and to file charge sheet against the petitioners for the offence punishable under [SECTION] and [SECTION] of [ACT], as they were not empowered under the [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 (Pvt) Ltd. case referred supra and the Judgment of Patna High Court in "[PRECEDENT]".
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The Inspector of Police, Ichapuram and Sub-Inspector of Police, Kanchili, without any authority launched the prosecution against the petitioners in [CASE NUMBER] on the file of Judicial Magistrate of First Class, Ichapuram, therefore, the proceedings under [SECTION] of [ACT] are liable to be quashed on the sole ground. The point is answered accordingly. P O I N T No.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 [SECTION] and [SECTION] of [ACT] The offence under [SECTION] is punishable with imprisonment of either description for a term which may extend to two years or with fine or with both and the offence under [SECTION] [ACT] 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] [ACT] is cognizable whereas the offence punishable under [SECTION] is non- cognizable. But when the police received information about the commission of both cognizable and non-cognizable offences, the police can investigate into both the offences in view of [SECTION] [ACT] Therefore, investigation done by the Inspector and Sub-
Inspector of Police in both the Calendar Cases is in accordance with [SECTION] [ACT] and therefore the Inspector of Police or Sub- Inspector of Police are competent to investigate into the offence punishable under [SECTION] and [SECTION] [ACT]
[SECTION] of [ACT] deals with committing any act with the knowledge or reason to believe that such act is likely to spread any Crlp 3731 2018 and batch MSM, J
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infection or any disease, dangerous to life, but the act done by the petitioners is only transportation of [ENTITY], Khaini and chewing tobacco in different vehicles.
Therefore, transportation of [ENTITY], khaini and chewing tobacco would not spread infection or any disease dangerous to life. To constitute an offence punishable under [SECTION] [ACT], 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 normal condition of any of the functions or tissues of the body (occupational disease), sickness, infirmity, disorder, illness, affliction, weakness, distemper, ill health, ailment, defect, handicap, disability, breakdown, malady, abnormality, plague, complaint derangement, attack, discomfort, delicate constitution, delicate condition, debility, suffering, malaise, nausea, pathology, frailty, attack, cancer, cholera, virus, "bug", syndrome.
According to [SECTION] of [ACT], 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 means, anything done by any of the persons. Transportation of Khaini, [ENTITY] 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 Crlp 3731 2018 and batch MSM, J
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disease dangerous to health. Therefore, the allegations made in the complaint i.e. transportation of chewing tobacco or Khaini or [ENTITY] also do not constitute an offence punishable under [SECTION] of [ACT]
The other offence allegedly committed by the petitioners is punishable under [SECTION] [ACT] 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 [ACT] As per the dictionary meaning, noxious means harmful, deleterious, injurious, poisonous.
Therefore, the sale or offers or exposes for sale of [ENTITY] chewing tobacco or khaini are the prohibited products under the [ACT]. 'Transportation' of such noxious food is not included in the offence punishable under [SECTION] [ACT], 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 statements recorded by the police during investigation under [SECTION] [ACT] do not disclose ingredients to constitute an offence punishable under [SECTION] [ACT] However, it is consistent view of the prosecution from the beginning that these petitioners were found transporting [ENTITY], 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] [ACT] Manufacturing [ENTITY] is not included in [SECTION] of [ACT], hence, manufacturing of [ENTITY] is not an offence since it is not a noxious food.
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Therefore, I find no prima facie material against the petitioners to proceed against them for the offence punishable under [SECTION] [ACT] accepting the allegations made in the charge sheets and the statements recorded by the police under [SECTION] [ACT] and F.I.Rs. issued against the petitioners.
The scope of [SECTION] of [ACT] 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 "[PRECEDENT]," seven guidelines were laid down and they are as under:
(a) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of the Code except under an order of a Magistrate within the purview of [SECTION] of the Code;
(c) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under [SECTION] of the Code; [SECTION] Crlp 3731 2018 and batch MSM, J
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(e) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justification and this case 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 "[PRECEDENT]" (referred supra), the police are incompetent to take cognizance of the offences punishable under [SECTION] and [SECTION] of [ACT], investigating into the offence along with the other offences under the provisions of [ACT] 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 [SECTION] and [SECTION] of [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.
Therefore, in view of the law declared in various judgments referred supra, chewing tobacco and khaini are not the food within Crlp 3731 2018 and batch MSM, J
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the definition of [SECTION] of [ACT] and the manufacture, sale or exposing for sale of tobacco etc., is governed by the provisions of [ACT], but not by [ACT] and so also the provisions of [ACT].
As discussed in the earlier paragraphs, the respondents are incompetent to investigate the offence punishable under [SECTION] and [SECTION] of [ACT] and the allegations in the charge sheet coupled with the statements does not disclose the commission of the offence punishable under [SECTION] of [ACT] since transportation of noxious food is not included under [SECTION] of [ACT] 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 transportation 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] of [ACT] and it would fall within [SECTION] of [ACT]
In [CASE NUMBER] (sl.Nos.3, 4 and 13) police registered case for the offence punishable under [SECTION] and [SECTION] of [ACT], wherein the accused were found manufacturing [ENTITY]. But [ENTITY] is not a Tobacco product to fall within the purview of [ACT]. Therefore, the provisions of [ACT] have no application, thereby registration of crime for violation of [SECTION] and [SECTION] of [ACT] is an illegality.
In [CASE NUMBER] (Sl.No.15 and
16) police registered case for the offence punishable under [SECTION] of [ACT] since the accused found transporting [ENTITY] and Tobacco.
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According to [SECTION] of [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] of [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 label, the specified warning. Since the petitioners are transporting Tobacco products without any label, it would fall within the provisions of [SECTION] of [ACT].
In [CASE NUMBER] (sl.Nos.20, 21 and [SECTION]), police registered a case against the petitioners for the offence punishable under [SECTION] and [SECTION] of [ACT]. Since the petitioners are found manufacturing and transportation of Tobacco products without any label prescribed by the Act is violation of [SECTION] and [SECTION] of [ACT], which is punishable under [SECTION] of the Act. [SECTION] of [ACT], deals with prohibition of advertisement of cigarettes and other tobacco products, which is punishable under [SECTION] of [ACT], but no such allegation is found in the entire record at attract the offence punishable under [SECTION] of [ACT].
The material on record in [CASE NUMBER] of Patancheru Police Station, [CASE NUMBER] of Modugula Police Station and in [CASE NUMBER] on the file of Judicial Magistrate of First Class at Ichapuram prima facie disclosed commission of offence punishable under [SECTION] (2) read with 7 Crlp 3731 2018 and batch MSM, J
- [SECTION] -
(2), 20 and [SECTION] of [ACT], hence the proceedings against the petitioners in [CASE NUMBER] of Patancheru Police Station, [CASE NUMBER] of Modugula Police Station and in [CASE NUMBER] on the file of Judicial Magistrate of First Class at Ichapuram for the offences punishable under the provisions of [ACT] cannot be quashed.
In the result, these [CASE NUMBER] are allowed. The proceedings (details of crime numbers are given in the table referred supra) against the petitioners herein are hereby quashed. No costs.
[CASE NUMBER], are partly allowed. The proceedings against the petitioners in [CASE NUMBER] of Patancheru Police Station, [CASE NUMBER] of Modugula Police Station and in [CASE NUMBER] on the file of Judicial Magistrate of First Class at Ichapuram for the offences punishable under [ACT] and [ACT] are only hereby quashed while permitting to proceed against the petitioners for the offences punishable under the provisions of [ACT]. No costs.
Miscellaneous petitions, if any, pending in these criminal petitions shall stand closed.
JUSTICE [ENTITY] 27.08.2018 Ksp