In a significant decision, the Bombay High Court has held that mere possession or storage of gutka/pan masala cannot come under the definition of "danger" as contemplated under Section 188 of Indian Penal Code.
Division bench of Justice Ranjit More and Justice Bharati Dangre was hearing a criminal writ petition filed by Anand and Vijay Chaurasia who were arraigned as accused in an FIR for offences punishable under Sections 179, 188, 273 and 328 of the IPC read with Section 26(2)(p) read with Section 3(1)(zz)(A) read with Section 59 along with Section 26(2)(4) read with Section 27(3)(d) and Section 27(3)(E) of the Food Safety and Security Act, 2006.
The said FIR was registered at the instance of Suresh Torab, a food safety officer who stated in his complaint that when the residents and godown of the petitioners was raided, Gutka and Pan Masala pouches were found to be stored. This, according to the complainant, was in contravention of a notification dated July 20, 2018 issued by the Food Safety Commissioner of the State of Maharashtra.
The petitioners were arrested on March 2 and released on bail, the next day.
Petitioner's lawyer Abad Ponda pointed out that in the State of Maharashtra, several complaints were lodged by the Food Safety Officers resulting into registration of FIRs for the offences punishable under Sections 26 and 30 of the FSS Act and under Sections 188 (Disobedience to order duly promulgated by public servant), 272 (adulteration of food or drink intended for sale) , 273 and 328 (causing hurt by means of poison etc, with intent to commit an offence) of the IPC.
He referred to the decision of the High Court in Ganesh Pandurang Jadhao v. State of Maharashtra and the judgment of the Apex Court in the case of State of Maharashtra & Anr. v. Sayyed Hassan Sayyed Subhan & Ors. wherein the Apex Court has recorded that there is no bar to a trial or conviction of offender under the two different enactments but at the same time had remanded the matters to the High Court in respect of the issues as to whether the offences under Sections 188 , 272, 273 and 328 of the IPC are made out in the FIR which were subject matter of the cases.'
Ponda placed heavy reliance on another judgement of the apex court to substantiate his point, the decision in Joseph Kurian Philip Jose v. State of Kerala.
"Even assuming for a moment that if there is storage of prohibited food substance by the Petitioners, it does not straight away lead to they being instrumental in people at large consuming the same and thereby attracting the provisions of Section 328 of the IPC", Ponda said.
Public Prosecutor Deepak Thakare defended the decision to invoke Section 328 and other IPC provisions. He submitted that when a person consumes something stupefying, intoxicating or an unwholesome drug, which causes hurt to such person and any person who administers or causes to be taken such a substance by any person knowing that it is likely to cause hurt would be brought within the ambit and scope of Section 328 of the IPC.
After examining the submissions and judgements relied upon by both parties, Court analysed offence contemplated under Section 328 of IPC-
"The first part of Section 328 of IPC therefore contemplates a direct involvement of a person to be brought within the purview of Section 328 of the IPC and it covers a situation of administration of one of the substance mentioned, to another. The second part of the section which uses the phraseology 'cause to be taken' employs an indirect method where a person causes one of the substance to be taken by another person. This 'causing' is suggestive of involvement of a third person and, therefore, employs an indirect method."
Further, the bench observed-
"The FIR lodged against the Petitioners alleges only storage. Undisputedly, there is a disobedience of an order which prohibits storage of tobacco, Pan Masala and Gutka. Far away Nothing in the FIR attribute any other act to the Petitioners viz. manufacture, distribution or sale. Disobedience of the promulgated order under Section 188 of the IPC is punishable if it causes or tends to cause danger to human life.
However, mere possession or storage cannot fall within the purview of 'Danger' contemplated under the said section."
Thus, Court added :
"The goods, as long as they remain stored, do not pose any danger. The goods will have to be moved beyond the store to be sold - 'to be purchased for consumption' and mere storing a food item would not pose the intended danger to human life.
"The gap between the storage and the consumption by a consumer will have to be bridged before the danger or the hurt contemplated under Sections 328 and Section 188 of the IPC get attracted and it is only when the prosecution proves that it is the Petitioners who are the one who did it, their prosecution would be a success."
On this reasoning, the Court quashed the FIR to the extent it was registered for offences under Sections 328 and 188 of the IPC..
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