IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 WP(C).No. 22766 of 2011(U) -------------------------- CC.3455/2011 of J.M.F.C. - I, IRINJALAKKUDA .................... PETITIONER : - --------------- JOSHY.K.V., AGED 48 YEARS, S/O.THE LATE K.V.VELAYUDHAN, KATTUNGAL HOUSE, KATTOOR P.O., ILLIKKAD, IRINJALAKKUDA, THRISSUR DISTRICT, PIN-680 702. BY ADVS. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.S.K.PREMRAJ SRI.C.S.MANU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. SUB-INSPECTOR OF POLICE, KATTOOR POLICE STATION, KATTOOR, IRINJALAKKUDA, PIN-680 702. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2011, ALONG WITH WPC NO. 25998 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22766 of 2011(U) APPENDIX PETITIONERS EXHIBITS :- EXT.P1 : TRUE COPY OF THE F.I.R IN CRIME NO.374 ON THE FILES OF THE KATTOOR POLICE STATION ISSUED TO THE PETITIONER. EXT.P1a: TRUE ENGLISH TRANSLATION OF EXHIBIT P1 - .F.I.R. EXT.P2 : TRUE COPY OF THE CHARGE SHEET DATED 25-06-2011 INCRIME NO. 374 OF 2011 ON THE FILES OF THE KATTOOR POLICE STATION FILED BY THE SUB INSPECTOR OF POLICE, KATTOOR BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, CHALAKKUDY. EXT.P2a: TRUE ENGILISH TRANSLATION OF EXHIBIT P2- CHARGESHEET. EXT.P3: A TRUE COPY OF THE LICENCE ISSUED BY THE KATTOOR GRAMA PANCHAYAT TO THE PETITIONER FOR THE YEAR 2010-11. EXT.P4: A TRUE COPY OF THE CERTIFICATE OF REGISTRATION BEARING SERIAL NO.66650 AND TIN32080984795 DATED 08-06-2007 ISSUED BY THE SALES TAX OFFICER, IRINJALAKKUDA TO THE PETITIONER. RESPONDENTS EXHIBITS : NIL. //TRUE COPY // P.A TO JUDGE amk. N.K.BALAKRISHNAN, J. ---------------------------------------------------- W.P.(C) Nos.22766 & 25998 of 2011 ---------------------------------------------------- Dated this the 4th day of October, 2011 JUDGMENT Petitioners arrayed are as accused in CC No.3455/11 of JFCM, Irinjalakkuda. Ext.P2 charge sheet was laid against them alleging commission of offences under Section 118(i) of Kerala Police Act, 2011. The substance of the charge laid against them is that on 6.6.2011, they were found in possession of banned tobacco products, Hans-Bombay which are injurious to both physical and mental health of children in the shop bearing No.XII 689 of Kattoor Panchayat within a distance of 400 meters of Edathiruthy St.Ann'sGirls Higher Secondary School. 2. Section 118(i) of the Kerala Police Act 2011 reads thus: 118. Penalty for causing grave violation of public order or danger:- Any person, who,- a. ..... ......... i. gives or sells those who are below eighteen years any intoxicating substance or to children any articles or substances which are harmful for their physical and mental health or procure the same near school premises for that purpose.” The learned Senior counsel appearing for the petitioner WPC.Nos.22766& 25998/2011 : 2 : submits that 'Hans Bombay' is not actually an intoxicating substance. The shop in question from where it was seized is situated about 400 meters away from the school. The learned Public Prosecutor on instruction submits that the distance is only 360 meters from the school premises. The Prosecution does not say anything about the distance within which the sale of such tobacco products is banned. The learned Senior counsel would draw my attention to Section 6 of the Cigarettes and other Tobacco products(Prohibition of Advertisement and Regulation of Trade and Commerce, production supply and distribution ) Act, 2003. Section 6 of that Act reads thus. 6. Prohibition on sale of cigarettes or other tobacco products to a person below the age of eighteen years and in particular area:- No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product-- a. to any person who is under eighteen years of age, and b. in an area within a radius of one hundred yards of any educational institution. The shop in question is situated beyond a distance of 100 yards of the educational institution mentioned in the charge. Section 6 of the Central Act would give a strong indication WPC.Nos.22766& 25998/2011 : 3 : that the prohibition if at all can be had if the sale was conducted within the radius of 100 yards of the educational institutions. Section 118(i) only says that the sale or procurement of the intoxicating substance shall not be made 'near the school premises'. Since, the distance from the school to the shop is 360 meters/400 meters it cannot be said that it is near the school premises. Therefore, it is difficult to hold that the charge against the petitioners can be sustained. It is not known why the distance from the educational institutions prohibiting sale of such substance in 118(i) of the Kerala Police Act, 2011. These writ petitions are allowed accordingly. Hence, the proceedings against the petitioner in C.C 3455/2011 of JFCM Irinjalakkuda is quashed. Sd/- N.K. BALAKRISHNAN, JUDGE jma //true copy// P.A to Judge