APHC010671202025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3521] MONDAY,THE NINTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL PETITION NO: 12896/2025 Between: 1.SUNNY KARNANI, S/O.NARAIN R KARNANI, AGED ABOUT 36 YEARS.R/O. 10-50-20/4, RAM RESIDENCY,BEHIND VARUN MOTORS SCOOTER DIVISION,SIRIPURAM JUNCTIO, VISAKHAPATNAM ...PETITIONER/ACCUSED AND 1.THE STATE OF ANDHRA PRADESH, Rep by its Public ProsecutorThrough Inspector of Police,III Town P.S., Visakhapatnam CityHigh Court of Andhra Pradesh at Amaravati ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused: 1.SHAIK MOHAMMED ISMAIL Counsel for the Respondent/complainant: 1.PUBLIC PROSECUTOR The Court made the following: 2 ORDER: The Criminal Petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity ‘the BNSS’) seeking to quash proceedings against Petitioner/Accused No.1 in C.C.No.2896 of 2025 on the file of the learned IV Additional Chief Judicial Magistrate, Visakhapatnam. 2. This Court heard at considerable length the submissions advanced by the learned Counsel appearing on behalf of the Petitioner, Sri Shaik Mohammed Ismail, as also the learned Assistant Public Prosecutor, and has given anxious and earnest consideration to the rival contentions. 3. LW.7, Inspector of Police received information from LW.1 conducted the raid, prepared the mediator’s report and seized the property and registered the case as FIR No.57/2024 for the alleged offences punishable under Sections 284, 328 of the Indian Penal Code, 1860 (for brevity ‘the I.P.C.,’) and Section 5 read with 8 of the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 (for brevity ‘the Act’). LW.8, Sub-Inspector of Police conducted further investigation, collected the evidence and arrested the accused, after completion of the investigation he filed chargesheet. 4. Before proceeding to examine the maintainability of the prosecution, it is necessary to advert to the statutory provisions under which cognizance has been sought to be taken. Section 284 of ‘the I.P.C.,’ which deals with negligent conduct with respect to poisonous substances, provides as follows: 3 “284. Negligent conduct with respect to poisonous substance.— Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against any probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 5. Section 328 of ‘the I.P.C.,’ which prescribes punishment for the act of causing hurt by means of poison or stupefying substances with a view to committing an offence, reads thus: “328. Causing hurt by means of poison, etc., with intent to commit an offence.— Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 6. Upon a meticulous and anxious examination of the aforementioned statutory provisions in juxtaposition with the specific allegations levelled against the Petitioner in the chargesheet, this Court is of the considered opinion that none of the essential ingredients constitutive of the offences under either Section 284 or Section 328 of ‘the I.P.C.,’ are even remotely attracted to the facts as pleaded and as they emerge from the record. The essential gravamen of Section 284 of ‘the I.P.C.,’ is the handling of a ‘poisonous substance’ in a rash or negligent manner so as to endanger human life and the sine qua non of Section 328 of ‘the I.P.C.,’ is the deliberate administration of poison, a stupefying drug, or an unwholesome substance to 4 another person with a specific intent to cause hurt or facilitate an offence. Electronic cigarettes, which form the subject matter of the present prosecution, do not, by any legally tenable construction or judicial interpretation, answer the description of a ‘poisonous substance’ within the contemplation of Section 284 of ‘the I.P.C.,’ nor do the facts alleged constitute the administration of poison or stupefying substances as envisaged under Section 328 of ‘the I.P.C.’ The invocation of these provisions is, therefore, manifestly erroneous and legally untenable. 7. The learned Counsel for the Petitioner, Sri Shaik Mohammed Ismail, submits that a jurisdictional embargo operates against the learned Magistrate taking cognizance of an offence punishable under Section 5 read with Section 8 of ‘the Act’. It is the emphatic contention of the learned Counsel that, in the absence of a complaint in writing filed by an authorised officer as per ‘the Act’, the jurisdictional Magistrate is wholly denuded of the competence and jurisdiction to take cognizance of any offence falling under the provisions of ‘the Act’. 8. In this regard, it is imperative to notice Section 13 of ‘the Act’, which is the cognizability provision. A plain reading of Section 13 of ‘the Act’ reveals that only an offence punishable under Section 4 of ‘the Act’ has been rendered cognizable by the legislature. The charge as set out in the chargesheet, however, is not in respect of Section 4 of ‘the Act’ but for an offence punishable under Section 8 of ‘the Act’, which is the penal provision for 5 contravention of Section 5 of ‘the Act’. This Court is, therefore, called upon to determine the legal consequence of filing a chargesheet for a non-cognizable offence without following the procedure mandated by law. 9. Section 5 of ‘the Act’, which constitutes the primary prohibition sought to be enforced in the present case, reads as follows: “5. Prohibition on storage of electronic cigarettes.—On and from the date of commencement of this Act, no person, being the owner or occupier or having the control or use of any place shall, knowingly permit it to be used for storage of any stock of electronic cigarettes: Provided that any existing stock of electronic cigarettes as on the date of the commencement of this Act kept for sale, distribution, transport, export or advertisement shall be disposed of in the manner hereinafter specified— (a) the owner or occupier of the place with respect to the existing stock of electronic cigarettes shall, suo motu, prepare a list of such stock of electronic cigarettes in his possession and without unnecessary delay submit the stock as specified in the list to the nearest office of the authorised officer; and (b) the authorised officer to whom any stock of electronic cigarettes is forwarded under clause (a) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to the law for the time being in force.” 10. Section 8 of ‘the Act’, which prescribes the punishment for contravention of the prohibition under Section 5, reads as under: “8. Punishment for contravention of section 5.—Whoever contravenes the provisions of section 5, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.” 11. Thus, Section 5 of ‘the Act’ imposes an absolute prohibition on the knowing storage of electronic cigarettes, and Section 8 of ‘the Act’ prescribes the consequential punishment for such contravention, viz., imprisonment for a term extendable to six months, or a fine extendable to Rs. 50,000/-, or both. It is manifest from the scheme and architecture of ‘the Act’ that the legislature has deliberately chosen to make only the offence under Section 4 of ‘the Act’ 6 cognizable, while leaving all other offences, including that under Section 8 read with Section 5 of ‘the Act’, as non-cognizable. 12. As this Court has adverted to hereinabove, a conjoint reading of Section 13 of ‘the Act’ makes it pellucid that offences under ‘the Act’, other than those falling under Section 4 of ‘the Act’, are non-cognizable in nature. The definition of an ‘authorised officer’, who alone is competent to initiate proceedings under ‘the Act’, is provided under Section 3(b) thereof. 13. Section 3(b) of ‘the Act’ defines an 'authorised officer' in the following terms: “(b) “authorised officer” means— (i) any police officer not below the rank of sub-inspector; or (ii) any other officer, not below the rank of sub-inspector, authorised by the Central Government or the State Government by notification;” 14. In the light of the aforesaid statutory framework, the legal position that obtains in the present case admits of no ambiguity. The chargesheet has not been filed in respect of an offence under Section 4 of ‘the Act’, it has been filed for the offence punishable under Section 8 of ‘the Act’. Since the offence under Section 8 of ‘the Act’ is indisputably non-cognizable in nature, the procedural law governing the investigation and prosecution of such offences is attracted in its full rigor. In the case of non-cognizable offences, the Investigating Officer, who, by virtue of satisfying the rank requirement, may qualify as an ‘authorised officer’ under Section 3(b) of ‘the Act’, was under a statutory obligation to obtain prior permission from superior officers before undertaking any investigation, and thereafter, to file a complaint in writing as 7 contemplated under Section 190 read with Section 200 of ‘the Cr.P.C.,’ in order to bring the matter to the cognizance of the Magistrate. The filing of a police report or chargesheet in lieu of such a complaint is not a procedure countenanced in law and constitutes a fundamental infirmity going to the root of the jurisdiction of the learned Magistrate. 15. On a careful scrutiny of the record, it is evident that LW.7 and LW.8, who investigated the matter, may individually qualify as ‘authorised officers’ within the meaning of Section 3(b) of ‘the Act’ by virtue of their respective ranks. Notwithstanding this, the fundamental procedural imperative that governs non-cognizable offences has not been adhered to. The Sub-Inspector of Police, LW.8, was not competent in law to file a chargesheet in respect of an offence under Section 8 of ‘the Act’. The proper course mandated by law was for the authorised officer to institute a complaint as defined under Section 2(d) of ‘the Cr.P.C.,’ by filing the same before the learned Magistrate under Section 190 read with Section 200 of ‘the Cr.P.C.,’ so as to set in motion the process of law in accordance with the established procedure. This mandatory procedural requirement cannot be bypassed or substituted by the filing of a police chargesheet. The failure to comply with this requirement has vitiated the proceedings at the threshold, rendering the cognizance taken by the learned Magistrate without jurisdiction and legally void. 16. The law on the subject is well-settled by a catena of judicial pronouncements. The Hon'ble Supreme Court of India, in a long line of 8 decisions, has consistently held that the power of a Magistrate to take cognizance of an offence is conditioned upon, and circumscribed by, the procedure prescribed in ‘the Cr.P.C.’ A Magistrate cannot take cognizance of a non-cognizable offence upon a police report simpliciter, and any cognizance so taken is coram non judice and void. It is equally well-established that in cases where a special statute prescribes a particular mode for initiation of prosecution, such mode is exclusive and must be strictly followed, failing which the entire prosecution becomes a nullity. The principle that a complaint, as defined in ‘the Cr.P.C.,’ is the only legally permissible way for placing a non- cognizable offence before a Magistrate for the purposes of cognizance. 17. Furthermore, this Court is mindful of the principle enunciated in State of Haryana v. Bhajan Lal1, wherein the Hon'ble Supreme Court laid down, inter alia, that where the allegations made in the FIR or the chargesheet, even if taken at face value and accepted in their entirety, do not constitute any offence or make out a case against the accused, or where the criminal proceedings are manifestly attended with mala fide intent or where the continuation of such proceedings would be an abuse of the process of court, the High Court is not only empowered but duty-bound to exercise its inherent jurisdiction to quash such proceedings, so as to prevent miscarriage of justice and to secure the ends of justice. 1 1992 Supp (1) SCC 335 9 18. The learned Counsel for the Petitioner has placed considerable reliance upon a recent judgment of the High Court of Telangana rendered in Mohd. Shoaib Ahmed v. State of Telangana2. This Court has perused the said judgment and finds that it arose from a substantially similar factual and legal matrix, wherein a chargesheet had been filed before the jurisdictional Magistrate for offences under Sections 4, 5 read with 7 and 8 of ‘the Act’. In those proceedings, the High Court of Telangana, after analysing the scheme of ‘the Act’ and the cognizability provisions thereunder, quashed the proceedings. The ratio of the said judgment is apposite and directly applicable to the facts of the present case. 19. Having bestowed the most careful, circumspect, and anxious consideration upon the entire facts and circumstances of the present case, the rival submissions advanced by both the learned Counsel, the statutory provisions governing the matter, and the judicial precedents cited, this Court is of the opinion that the continuation of the impugned criminal proceedings in C.C.No.2896 of 2025 before the learned IV Additional Chief Judicial Magistrate, Visakhapatnam, would be a palpable and gross abuse of the process of the law, and is wholly unsustainable in law for the reasons that the essential ingredients of Sections 284 and 328 of ‘the I.P.C.,’ are conspicuously absent and find no correspondence whatsoever with the allegations set out in the chargesheet, rendering the invocation of those penal provisions per se 2 Crl.P.No.13304/2024 dated 19.03.2025 10 legally untenable and, the offence under Section 8 of ‘the Act’, read with Section 5 of ‘the Act’, being a non-cognizable offence, could only have been taken cognizance of by the learned Magistrate upon the filing of a complaint in writing by the authorised officer as mandated under Section 190 read with Section 200 of ‘the Cr.P.C.’ 20. In the result, and for all the aforesaid reasons, the present Criminal Petition is allowed. The impugned proceedings in C.C.No.2896 of 2025 pending on the file of the learned IV Additional Chief Judicial Magistrate, Visakhapatnam, are quashed. As a sequel, Miscellaneous petitions, if any pending, shall stand closed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 09.03.2026 VTS