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Judgment
Prafulla C. Pant, J.—By means of this petition moved u/s 482 of Code of Criminal Procedure, 1973 (for short Code of Criminal Procedure) the Petitioner has sought quashing of the orders dated 23.04.2008, and 13.10.2010, passed by District Magistrate, Dehradun, and order dated 28.05.2011, passed by the revisional court (Additional Sessions Judge/ III Fast Track Court, Dehradun) whereby said court has affirmed the order passed by the Magistrate u/s 133 Code of Criminal Procedure.
Heard learned Counsel for the parties, and perused the papers on record.
Brief facts of the case are that Petitioner namely M/s Kores (India) Ltd., is a company which manufactures and sells stationery products including whitener (correction fluid), diluter (thinner) and gumstick etc., in India. A report dated 20.03.2008, was submitted by Senior Superintendent of Police, Dehradun, to the District Magistrate, Dehradun, stating that the aforesaid items are being purchased by the children, and they are inhaling and misusing it for the purposes of intoxication, thereby not only the children''s health is being adversely affected, the two-wheelers which are being driven by such children meeting with accidents, and young students are creating nuisance at the public places. The Senior Superintendent of Police has specifically mentioned that this nuisance is said to have been found being caused near Guru Ram Rai Inter College, Race Course, Vivekanand Inter College, Jogiwala, Gandhi Inter College, Dispensary Road, Scholars Home, Marshall School, E.C. Road, St. Anis School, Nehru Colony, St. Joseph Academy, Rajpur Road, Woodstock, Mussoorie, Mussoorie International School, Fifth Centurian School, Mussoorie etc.. Incidents of children fighting among themselves after inhaling the aforesaid products are also increasing. On said report, the District Magistrate, Dehradun, vide his order dated 20.04.2008, passed in case No. 1 of 2008, exercising powers u/s 133 Code of Criminal Procedure, directed that in the District Dehradun no such stationery products shall be sold or purchased by any seller or distributor in Dehradun without taking permission from the District Administration. Said order was challenged by the Petitioner before the revisional court (Sessions Judge, Dehradun). It appears that said revision was allowed, and matter was remanded to the District Magistrate for passing fresh orders after hearing the Petitioner. The District Magistrate, Dehradun, in compliance of the order of the Sessions Judge heard the parties, and passed fresh order dated 13.10.2010, and affirmed the direction issued earlier. Aggrieved by said order dated 13.10.2010, again criminal revision No. 4 of 2011, was filed by the Petitioner which was dismissed vide order dated 20.05.2011, passed by Additional Sessions Judge/III Fast Track Court, Dehradun. Hence this petition.
Learned Counsel for the Petitioner submitted that without there being material and evidence on record, the District Magistrate has passed the order. However, I am unable to agree with the submission of learned Counsel for the Petitioner for the reason that the Senior Superintendent of Police, Dehradun, in his report dated 20.03.2008, has given all the details as to what is the problem felt after the children are inhaling correction fluid, diluter, thinner, gumstick. Attention of this Court is drawn to the case Bhanu Mondal and Others Vs. Jaydeb Chowdhary and Others, , and it is pleaded that the Magistrate cannot pass order u/s 133 Code of Criminal Procedure, unless sufficient material reported to him. I have gone through the said case law, and found that in said case there was no disclosure of pathway, on which nuisance was created. Said referred case pertains to Clause (a) of Section 133 Code of Criminal Procedure. But the present case pertains to Clause (b) of Sub-section (1) of Section 133 Code of Criminal Procedure, which empowers the District Magistrate or the Sub Divisional Magistrate on receiving the report officers of the police, to desist from carrying on a particular trade (reference Clause (ii)of Sub-section (1) of Section 133 Code of Criminal Procedure) in the case where the conduct of such trade is injurious to health or physical comfort of the community and consequently requires prohibition or regulation of such goods.
In writ petition No. 2027 of 2007, Paper clipping Andhra Jyothi v. Government of Andhra Pradesh and others, Division Bench of the Andhra Pradesh High Court after considering the submissions of the concerned parties including that of present Petitioner, directed that the appropriate authorities may issue instructions not to sell such products to the persons below 18 years of age.
This Court, having considered submissions of learned Counsel for the Petitioner, and learned Counsel for the State finds that since the products in question namely correction fluid, diluter, thinner, gumstick produced by the Petitioner for sale are not the prohibited items, complete ban on sale of such products in the District Dehradun cannot be said to be justified under the law. However, if the impugned order passed by the District Magistrate is applied as to the sale of these products to the children and minors it would certainly remove the nuisance at public place created by the young students and children after getting intoxicated by inhaling the products. Section 133 Code of Criminal Procedure, provides only removal of nuisance. It cannot said that sale of the stationary items, like correction fluid, diluter, thinner, gumstick to the Government Offices or other organizations creates any nuisance.
Therefore, for the reasons as discussed above, this petition u/s 482 Code of Criminal Procedure, is disposed of with the direction that the impugned order passed by the District Magistrate, relating to restriction on purchase and sale of the aforesaid products shall apply in respect of children and minors only. In other words, the impugned order shall have no effect relating to sale and purchase of the items namely diluter, thinner, whitener, gumstick by the Government Offices or other institutions or corporations.