2023 (5) TMI 1415 - HC - Indian Laws

Challenge to impugned order of cognizance on the grounds inter alia that the same is not tenable in law particularly with respect to offence punishable under Sections 272 and 273 read with 34 of the I.P.C. - exercise of the Courts inherent jurisdiction - seizure of Guthka from the petitioner - prohibited goods or not - HELD THAT - Since the recovery and seizure is shown against the petitioner with respect to the GHUTKA (Tobacco product) which is one of the items under the schedule to the (COPTA) and it was allegedly being transported for sale, hence, as it is claimed that the provisions of sub-section-2 of Section 20 of the said Act are satisfied. Without expressing anything on the merits of such claim, the Court is of the considered view that whether any such offence has been committed by the petitioner or not is to be examined by the learned Court below during and in course of inquiry and trial, if the petitioner is not discharged. The decision as to whether a case under Section 20(2) of the COPTA is prima facie established is a matter to be thrashed out by referring to the material evidence collected and submitted along with chargesheet. In Joshy K.V. 2012 (12) TMI 1251 - KERALA HIGH COURT , the challenge was whether, Tobacco by itself with some additives like lime or other flavouring substances can be prevented or seized in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 being a food product. Under the Prevention of Food Adulteration Act, 1954 (PFA Act), Section 2(v) defined food as any article used as food or drink for human consumption and includes articles which ordinarily enter into or used in the composition or preparation of human food, any flavouring matter or condiments and any other article so notified by the Government of India. The definition of food as appearing in Section 2(v) of the PFA Act is quite expansive so as to include any such article used as a food or drink meant for human consumption and it is inclusive in nature. According to Section 3(1)(j) of the FSS Act, not only food is defined but by virtue of a legal fiction, certain other items, which are not generally treated as a food have been included. In the humble view of the Court, it does not by itself mean that a product not Pramod Kumar Sahu@ Pramod Sahu Vrs. State of Odisha named in the inclusive definition and which is not a food becomes a food product unless it is shown that the same is consumed for taste or nourishment as held in P.K. Tejani 1973 (10) TMI 53 - SUPREME COURT . Therefore, the Court is in agreement with the judgment rendered in Joshy K.V. which is also to the effect that Tobacco is a product which is to be avoided is clear and conspicuous from Regulation 2.3.4 of the Regulations itself which reinforces the view that it is not to be a food product. The impugned order of cognizance is hereby quashed - the CRLMC stands allowed in part.

Summary

Issues:
Challenge of impugned order of cognizance under Sections 272 and 273 of IPC and COPTA.

Detailed Analysis:
1. The petitioner filed a petition under Section 482 of the Cr.P.C challenging the order of cognizance dated 8th July, 2019, related to a case involving possession and transportation of Tobacco (GHUTKA) allegedly unauthorizedly. The petitioner argued that the offenses under Sections 272 and 273 of the IPC were not applicable as GHUTKA did not fall under the definition of food item as per the Food Safety Standards Act, 2006 (FSS Act). The petitioner sought quashing of the impugned order on these grounds.

2. The informant alleged that the petitioner was in possession of GHUTKA without authorization, which was found to contain Tobacco, a prohibited product under the COPTA. The case was registered under Sections 420, 272, and 273 of the IPC, along with Section 20 of COPTA. The petitioner contended that GHUTKA did not qualify as a food item under the FSS Act, and therefore, the charges under Sections 272 and 273 of the IPC were not valid. The court had to determine whether GHUTKA could be classified as a food product.

3. The State argued that GHUTKA, being intended for human consumption, fell under the definition of food as per the FSS Act. The State justified the order of cognizance under Sections 272 and 273 of the IPC based on the harmful nature of GHUTKA for human consumption and its prohibition under COPTA. The State also mentioned the evasion of tax (GST) as a basis for the charges under Section 420 of the IPC against the petitioner.

4. The petitioner cited a previous judgment to support the argument that GHUTKA should not be considered a food product. The State countered by asserting that GHUTKA, being a Tobacco product intended for human consumption, met the criteria of a food item under the FSS Act. The court had to evaluate whether GHUTKA, despite being covered by COPTA, could be classified as a food product under the FSS Act.

5. The court referred to the definitions provided in the FSS Act to determine whether GHUTKA qualified as a food item. After analyzing relevant legal provisions and precedents, the court concluded that GHUTKA did not meet the criteria to be considered a food product under the FSS Act. Consequently, the court allowed the petition in part, quashing the order of cognizance under Sections 272 and 273 of the IPC against the petitioner.

6. The judgment highlighted the distinction between GHUTKA as a Tobacco product covered by COPTA and its classification as a food item under the FSS Act. The court's decision was based on the interpretation of legal definitions and previous judgments regarding the classification of substances intended for human consumption.