‘Sale of Noxious Food or Drink’ Implies That Noxious Item Must Be Sold as Food or Drink Without Warning Label: Telangana High Court

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A criminal petition was filed under Section 482 of CrPC by the petitioners, seeking to quash the proceedings on the file of Ramachandrapuram Police Station, Cyberabad, against the petitioners.

Facts

The petitioners were accused in the case and were charged with Sections 273 and 188 read with Section 34 of IPC, and Section 3(m) and 20(2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The allegations that were levelled against the petitioners were that they were using the banned tobacco products and sold them to customers intending to gain profits illegally. The petitioners also filed an interlocutory application for the return of the seized material, which was confiscated for the aforesaid crime.  The goods that the petitioners were selling were described as “contrabands” by the respondents. Notwithstanding, the respondents did not mention the word “contraband” in their complaint.

Arguments made by the learned counsel of petitioners 

He submitted that the sections under which the petitioners are charged do not apply to the present case as the allegations levelled against the petitioners lack the essential ingredients of the aforesaid offences, and, therefore, the complaint should be quashed at once. He went on to describe Section 20(2) of the COTP Act, 2003 which stipulates that if the seller sells or distributes any tobacco product that does not contain the specified warning or the nicotine and tar contents, either on the package or their label, then, he shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or a subsequent conviction with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees.

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He explained assiduously that how section 20(2) of the COTP Act, 2003, clearly elucidates that if the specified warning is not labelled on the product, then the seller shall be held liable for his sheer ignorance, but, in the present case, the petitioners are just selling the tobacco products to customers at a higher price and this fact stands seemingly different from the essential ingredient stipulated under section 20(2). Therefore, the key ingredient of not mentioning the specified warning and the tar contents do not find their place in this case.

He also relied on the judgement made in the case of Chidurala Shyamsubder V/S State of Telangana, that the mere transportation of tobacco products or pan masala or khaini do not constitute an offence punishable under section 188 of IPC and the manufacturing of pan masala does not come under the umbrella of Section 273 of IPC. In light of the above decision, the contents of the present complaint lack the ingredients of sections 273 and 188 of IPC, and, therefore, the proceedings in the aforesaid crime for the said offences are liable to be quashed against the petitioner.

Arguments made by the learned counsel of the respondents 

The sum and substance of his pleadings were that the perusal of the Shyamsunder case will not apply to the present case as the facts of the two cases are quite different. Without substantiating his submissions, he continued tangling the fabrics of the case with the sole intent to delay the proceedings.

Court’s observation 

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The court backed the observation made by the learned single judge bench in the case of Chidurala Shyamsubder V/S  State of Telangana.  The court opined that herein, the petitioners have been charged with Section 273, but in totality, all they have been doing is just selling the tobacco products at a higher price and that does not fall within the purview of Section 273 as the section prescribes punishment to those who are involved in the selling of noxious food or drinks. In the case of Emperor V/S Salig Ram, the Allahabad High court observed that what is punishable under Section 273 is the sale or offer or exposure for sale of noxious articles as food and drinks and not the mere sale or offer or exposure for sale of noxious articles. In this case, the accused did not sell any article as food or drink. The fact of not mentioning the specified warning about the nicotine and tar contents do not apply to the petitioners. Given the above-said decision, the contents of the complaint lack the ingredients of Sections 273 and 188, and, therefore, the proceedings are liable to be quashed against the petitioners.  As stated above, the allegation against the petitioners is that they purchase the tobacco products and sell them to customers at higher prices to gain wrongful profits. But, in the complaint, there is no allegation against the petitioners that they are carrying on trade or commerce in contraband or any other tobacco products without the label and specified warning on the said products. Thus, registering the crime for the said offence against the petitioners is not only contrary to Section 3(m) and 20 (2) of COTP Act, 2003 but also contrary to the principle laid down in Chidurala Shyamsubder (supra).

Court’s Judgement 

The court allowed the criminal petition filed by the petitioners and quashed the proceedings on the file of Ramachandrapuram, Cyberabad, Police Station and directed the Station House Officer, Ramachandrapuram to return the seized property, on proper identification and verification of ownership of seized property under due acknowledgement.


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