Merely Keeping Tobacco Products At One's Residence Not An Offence: Kerala High Court

The Kerala High Court has recently ruled that mere keeping of tobacco products at one's residence does not attract any offence per se. 

Holding so, Justice Kauser Edappagath allowed a petition filed by an accused who was charged for storing a collection of tobacco products at his residence, allegedly to sell to children. 

"Mere keeping of the tobacco products at the residence of the accused will not in any way attract the offence. The prosecution has no case that the petitioner sold or offered for sale or permitted sale of the cigarette or tobacco products. The only case of the prosecution is that the petitioner kept the tobacco products at his home with the intention to sell."

The petitioner had approached the High Court to quash a final report before the Judicial First Class Magistrate Court.  He was accused for offences u/s 6 r/w S.24 of the Cigarettes and Other Tobacco Products Act (COTPA Act), u/s 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and S/118(i) of Kerala Police Act, 2011.

The main allegation against him was that he was found in possession of prohibited tobacco products of a total of 2770 packets which were kept at his residence with the intention to sell the same to the children, without any valid licence or documents

The Court noted that Section 6 of the COTPA Act prohibits the sale of cigarettes and other tobacco products to a person below the age of 18 years and in an area within a radius of 100 yards of any educational institution. This implies that the section takes into two offences; both distinct and separate.

While the first part provides that irrespective of the place of sale, selling tobacco products to a person under eighteen years of age is an offence, the second part provides that irrespective of the age of the customer, it is an offence to sell tobacco products within a radius of 100 yards of any educational institution.

From a reading of this provision, the Court noticed that to attract an offence, one must sell, or offer to sell or permit the sale of any tobacco products:

"The above provisions make it crystal clear that to attract S.6, one must actually sell or offer to sell or expose to sell or permit the sale of cigarette or tobacco product to a person below the age of 18 years or in an area within a radius of 100 yards of any educational institution."

However, in this case, the accused had merely kept tobacco products at his residence. He had not sold or offered for sale or permitted sale of the cigarette or tobacco products. The only contention was that he kept the tobacco products at his home with the intention to sell.

Further, the Court noted that there was no educational institution within a radius of 100 yards of the petitioner's house to attract the second part of Section 6.

For these reasons, it was held that Section 6 of the COTPA Act is not attracted.

Since there is no case for the prosecution that the petitioner had given or causes to be given tobacco products to any minor child, charges under Section 77 of the JJ Act was also dropped.

Accordingly, the Court found this to be a fit case for it to exercise its extraordinary jurisdiction under Section 482 of CrPC.

"It is trite that jurisdiction u/s 482 of Cr.P.C can be exercised to secure ends of justice and to prevent abuse of process of court. Since basic ingredients of the offence u/s 6 r/w S.24 of the COTPA Act, S.77 of the JJ Act and S.118(i) of the KP Act are altogether absent, proceeding with trial of Annexure 1 will be abuse of process of the Court. Hence, I am of the view that it is a fit case where extra ordinary jurisdiction vested with this court u/s 482 could be invoked."

As such, the plea was allowed and all the proceedings pending against the accused were dropped.

Advocates K.R. Vinod, M.S, Leetha, K.S. Sreerekha and Arun Sebastian appeared for the petitioner in the matter while Additional Director General of Prosecution C.K. Suresh represented the State. 

Case Title: Abhijith v. State of Kerala

Citation: 2022 LiveLaw (Ker) 85

Click Here To Read/Download The Order