Case Note & Summary
The petitioner, National Organisation for Tobacco Eradication (NOTE), a registered society, filed a criminal complaint against the respondents (accused) alleging violation of Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA). The complaint stated that the film 'Baghban', produced by the accused, contained scenes that promoted tobacco products, thereby violating the prohibition on advertisement of tobacco products. The learned Judicial Magistrate, First Class, Panaji, issued process against accused nos. 1, 2, 4 and 5. Aggrieved, the accused filed a revision before the Sessions Court, which quashed the process. The petitioner then filed the present revision before the High Court. The High Court examined the scope of revisional jurisdiction under Section 397 CrPC and the principles for quashing process under Section 482 CrPC. The Court held that the Sessions Judge had erred in quashing the process by conducting a mini-trial and appreciating evidence at the stage of process. The allegations in the complaint, if taken at face value, disclosed a prima facie offence under Section 5 of COTPA. The Court also noted that the complaint specifically alleged that the accused directors were in charge of and responsible for the conduct of the business, making them vicariously liable. The High Court allowed the revision, set aside the order of the Sessions Judge, and restored the process issued by the Magistrate. The accused were directed to appear before the trial court.
Headnote
A) Criminal Procedure Code, 1973 - Section 397 - Revision - Scope - The revisional court can interfere with an order of quashing of process if the order is perverse or suffers from legal infirmity - Held that the Sessions Judge erred in quashing the process without considering the allegations in the complaint and the documents annexed (Paras 5-10). B) Cigarettes and Other Tobacco Products Act, 2003 - Section 5 - Prohibition of Advertisement - The Act prohibits advertisement of cigarettes and other tobacco products in any form - Held that the complaint alleging that the film 'Baghban' contained scenes promoting tobacco products disclosed a prima facie offence under Section 5 (Paras 11-15). C) Criminal Procedure Code, 1973 - Section 482 - Inherent Powers - Quashing of process - The power to quash should be exercised sparingly and only when the allegations do not disclose any offence - Held that the Sessions Judge exceeded his jurisdiction by appreciating evidence at the stage of process (Paras 16-20). D) Cigarettes and Other Tobacco Products Act, 2003 - Section 5 - Vicarious Liability - Directors and companies can be held liable for offences under the Act if they are in charge of and responsible for the conduct of the business - Held that the complaint made specific allegations against the directors, making them liable to face trial (Paras 21-25).
Issue of Consideration
Whether the learned Sessions Judge was justified in quashing the process issued against accused nos. 1, 2, 4 and 5 in a complaint under Section 5 of the Cigarettes and Other Tobacco Products Act, 2003, read with Rules 3 and 4 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004, and whether the complaint disclosed a prima facie case against the accused.
Final Decision
The revision application is allowed. The impugned judgment/order dated 26.3.2008 of the learned Sessions Judge, Panaji is set aside. The process issued by the learned Judicial Magistrate, First Class, Panaji against accused nos. 1, 2, 4 and 5 is restored. The accused are directed to appear before the trial court on 30.8.2010.
Law Points
- Maintainability of complaint under Section 5 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce
- Production
- Supply and Distribution) Act
- 2003
- Quashing of process under Section 482 CrPC
- Scope of revision under Section 397 CrPC
- Vicarious liability of directors under Section 141 of Negotiable Instruments Act
- 1881 analogy
- Prima facie case for trial
