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TMI Blog2023 (5) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to the COPTA ) and it was being possessed for transportation and selling knowing fully that the same is injurious to human consumption. Accordingly, Rayagada P.S. Case No. 25 of 2018 was registered under Sections 420, 272 273 read with 34 of the I.P.C besides Section 20 of COPTA. On completion of investigation, the petitioner was charge-sheeted under the alleged offences, consequent upon which, the learned Court below took cognizance of the same by the impugned order dated 8th July, 2019 in connection with G.R. Case No. 406 of 2018, which is currently under challenge. 3. Heard Mr. Das, learned counsel for the petitioner and Mr. Mohapatra, learned ASC for the State-opposite party. 4. Mr. Dash, learned counsel for the petitioner submits that the F.I.R as at Annexure-1 never disclosed commission of any cognizable offence by the petitioner, however, the informant falsely foisted a case against him. It is further submitted that the material evidence collected during investigation does not transpire the active involvement of the petitioner in any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect that GHUTKA seized from the petitioner not to be a food product and hence, offences under Sections 272 and 273 I.P.C are not attracted, cited a decision in the case of Joshy K.V. and Others Vrs. State of Kerala and Others decided in W.P.(C) No.13580 of 2012 (V) by judgment dated 20th December, 2012. It is contended that in the aforesaid decision, Tobacco is not held to be a food product as it might at best an intoxicant, which is not used for taste or nourishment. Even though, it is a product covered by the provisions of COPTA, but the FSS Act has not application to it. The said argument is challenged by Mr. Mohapatra, learned ASC for the State by contending that GHUTKA, a Tobacco product and a substance intended for human consumption and hence, it falls within the definition of Section 3(1)(j) of the FSS Act and as according to chargesheet, since the seized sample was found to be noxious containing Nicotine, the offences under Sections 272 and 273 I.P.C are clearly attracted. 7. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded by the FSS Act and therefore, whether, GHUTKA product is a food or not is to be examined in terms of Section 3(1)(j) of the FSS Act. 9. For ready reference, Section 3(1)(j) of the FSS Act is reproduced herein below: Pramod Kumar Sahu@ Pramod Sahu Vrs. State of Odisha (j) food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent 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. On a sincere reading of the aforesaid pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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