If a person keeps tobacco at residence, would that amount to being an offence? Ker HC answers

Kerala High Court

Kerala High Court: While addressing a matter for an offence alleged under Cigarettes and Other Tobacco Products Act, Juvenile Justice Act and Kerala Police Act, Dr Kauser Edappagath, J., expressed that mere keeping tobacco at residence would not amount to being an offence.

In the present matter, accused was alleged of an offence under Section 6 read with 24 of the Cigarettes and Other Tobacco Products Act, 2003 (for short COTPA Act), under Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 118(i) of the Kerala Police Act, 2011.

The accused without any valid license or documents was found in possession of prohibited tobacco products of GANESH and HANS of total 2770 packets which were kept at his residence with intention to sell the same to the children.

Analysis, Law and Decision

High Court analyzed that Section 6 of the COTPA Act prohibits 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.

As per the said Section, one must actually sell or offer to sell or expose to sell or permit the sale of cigarette or tobacco products to a person below the age of 18 years or in an area within a radius of 100 yards of any educational institution.

High Court remarked that, mere keeping of the tobacco products at the residence of the accused will not in any way attract the offence.  

Prosecution had no case that the petitioner had sole or offered for sale or permitted sale of the cigarette or tobacco products, also there was no case that any educational institution was situated within a radius of 100 yards of the petitioner’s house. Hence, Section 6 of the COTPA Act was not attracted.

Section 77 of the JJ Act says that whoever gives, or causes to be given, to any child any intoxicating liquor or any narcotic drug or tobacco products or psychotropic substance, except on the order of a duly qualified medical practitioner, shall be punishable.

The Bench found no case for the prosecution that the petitioner had given or causes to be given tobacco products to any minor child. The only allegation was that the petitioner had kept the tobacco products at his house, and it was presumed by police that they were kept for sale to minors. Hence the said Section will not be attracted.

Section 118(i) of the KP Act, provides that any person who gives or sells to those who are below 18 years of age any intoxicating substance or any articles or substance to children which are harmful for their physical and mental health or procure the same near school premises for that purpose, shall be punishable.

Since there was no case of petitioner giving or selling any intoxicating substance or tobacco products to any person below eighteen years of age, the above said Section will not be attracted.

In view of the above discussion, the present Crl MC was allowed. [Abhijith v. State of Kerala, 2022 SCC OnLine Ker 916, decided on 17-1-2022]


Advocates before the Court:

For the Petitioner:

By Advocates:

K.R. Vinod

SMT. M.S. Letha

KUM. K.S. Sreerekha

SHRI. Arun Sebastian

For Respondent:

By Advocate Addl. Director-General of Prosecution, C.K. Suresh

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