A close analysis of the said section would reveal that
whoever disobeys an order promulgated by a public servant
directing to abstain from certain acts, or to take certain orders
with certain property in his possession, disobeys such direction,
would attract Section 188 of the IPC if such disobedience causes
or tends to cause obstruction, annoyance or injury, or risk of it, to
any person lawfully employed and if such disobedience causes or
tends to cause danger to human life, health or safety shall be
punished under the said section. The keywords being ‘causes or
tends to cause danger to human life, health or safety ’. The
disobedience of the public order apart from attracting a penalty
under Section 55 of the FSS Act would, in view of the decision of
the Apex Court in Sayyed Hussain (supra), attract Section 188 of
the IPC but it would have to be examined whether it falls within
the mischief sought to be penalised by the said section. 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. The section do not use the term
‘likely to cause’, conveying that there has to be a positive evidence
of causing or tends to cause danger to human life and in absence,
Section 188 is not attracted. It is not in doubt that the tobacco
and its products are dangerous to human life and safety.
However, mere possession or storage cannot fall within the
purview of ‘Danger’ contemplated under the said section. 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. The
Apex Court in Joseph Kurian Philip Jose (supra), has succinctly
drawn a distinction in the two terminologies applied by Section
328 of the IPC in the form of direct and indirect methods and the
said judgment continues to be an authoritative and binding
precedent till date. In the light of the aforesaid position emerging
from the submissions advanced before us, we do not intend to
continue the prosecution against the Petitioners as it would
merely amount to an abuse of process of law and the prosecution
of the Petitioners under Sections 328 and 188 of the IPC,
therefore, cannot continue.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3607 OF 2019
Anand Ramdhani Chaurasia Vs The State of Maharashtra,
CORAM : SHRI RANJIT MORE &
SMT. BHARATI DANGRE, JJ.
PRONOUNCED ON: 13th SEPTEMBER, 2019.
JUDGMENT:- [Per: Smt. Bharati Dangre, J.]
1. The tobacco epidemic is one of the biggest public health
threat the world ever faced, killing 8 million and the Report of the
World Health Organization dated 26/07/2019 brings out that
more than 7 million of those deaths, are the result of the direct
use of tobacco. Good monitoring tracks the extent and character
of this tobacco epidemic and indicates how to evolve best policies
to deal with this menace. The steps taken throughout the world
in the form of bans imposed on tobacco advertisement and
promotion, pictorial health warning and the high rate of taxes
dealing with illicit trade of tobacco, has yielded some positive
results.
2. The scale of human and economic tragedy that tobacco
imposed is shocking. In 2003, the World Health Organization
member states universally adopted the WHO Framework
Convention on Tobacco Control (“WHO FCTC”), which came
into force in 2005. It has currently 185 parties covering more
than 90% of the world population. There is a fundamental and
irreconcilable conflict between the tobacco industries’ interest on
the one hand and public health industries’ interest on the other
hand.
The present writ petition is an illustration depicting such a
conflict in the form of transportation and sale of Gutka and Pan
Masala, the former being a chewing tobacco, preparation made of
crushed areca nut, tobacco, catechu, paraffin wax, slaked lime and
sweet or savory flavourings. It contains carcinogens, which is
identified to be a cause for oral cancer and other severe negative
health effects. Pan Masala on the other hand, is a combination of
betel leaf and areca nut and may contain tobacco. Both the
aforesaid products are highly addictive in nature.
3. The primary duty of every State in terms of the Directive
Principles of the State Policy as enshrined in Article 47 of the
Constitution being to improve public health which implicitly
includes the concept of provision of measures to be taken for
prevention of deterioration of citizen’s health. The Food Safety
Commissioner of Food & Drug Administration, Government of
Maharashtra in exercise of his power to be discharged in the form
of duty under Section 30(2)(a) of the Food Safety & Standards
Act, 2006 (hereinafter referred to as “the FSS Act, 2006”) in
order to prohibit in the interest of public health, has issued orders
from time to time in exercise of said power and has identified
tobacco as one of such article of food listed at Sr.No.40 in table
under sub-regulation 2.3.1 and has made tobacco, whether
flavoured, scented or mixed with other ingredients such as
nicotine, menthol, etc. and in terms of the Food Safety &
Standards (Prohibition & Restriction on Sales) Regulations 2011
has imposed a complete prohibition for a period of one year, on
the manufacture, storage, distribution, transport or sale of tobacco
in whatsoever form and name being available in the market. The
regime in which the present writ petition emanated had the
existence of order issued by the Commissioner of Food Safety on
20/07/2018 and here we deem it appropriate to note that such
notifications have been issued in the past prior to the present
notification.
4. The Petitioners, who are arraigned as accused in FIR
bearing No.87 of 2019 registered with Samta Nagar Police
Station on 02/03/2019 for the 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 FSS Act, 2006 have approached this
Court for quashing and setting aside the said FIR.
The FIR is registered on the basis of complaint received
from the Food Safety Officer i.e. Respondent No.4 recording that
when the residents and godown of the Petitioners was raided,
Gutka and Pan Masala pouches were found to be stored and this
storage contravened to the Notification dated 20/07/2018 issued
by the Food Safety Commissioner, State of Maharashtra.
Pursuant to the registration of the FIR, the Petitioners came to be
arrested on 02/03/2019 and were released on bail on 05/03/2019.
It is in the backdrop of this limited facts, the petition poses a
challenge to the action initiated against them by registering the
FIR and invoking and applying Section 328 and Section 188 of
the IPC.
5. The arguments advanced by Mr. Ponda, the learned counsel
appearing for the Petitioners is enlaced around the Food Safety &
Standards Act, 2006 which according to him is a complete Code
in itself empowering the Food Safety Officer to take necessary
steps and regulate the manufacture, storage, distribution and sale
and import of food products to ensure that safe and wholesome
food is available for human consumption. Mr. Ponda has invited
our attention to the gamut of the litigation revolving around the
FSS Act and the provisions of the IPC, in specific, Section 328
and Section 188 of the IPC and would submit that in the State of
Maharashtra, several complaints came to be lodged by the Food
Safety Officers resulting into registration of FIRs for the offences
punishable under the provisions of Sections 26 and 30 of the FSS
Act and under the provisions viz. 188, 272, 273 and 328 of the
IPC. He has invited our attention to the judgment of the
Division Bench of this Court in the case of Ganesh Pandurang
Jadhao v. State of Maharashtra reported in 2016 Cri. L.J. 2401
and the judgment of the Apex Court in the case of State of
Maharashtra & Anr. v. Sayyed Hassan Sayyed Subhan & Ors .
reported in 2018 AIR (SC) 5348 where the Apex Court after
recording that there is no bar to a trial or conviction of offender
under the two different enactment but limiting the bar to the
punishment to be imposed on the offender, 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.
Mr. Ponda has thus invited our attention to the Division Bench
judgment delivered at Aurangabad dealing with the issue as
regards the applicability and invocation of Sections 272, 273 and
328 of the IPC in case of Vasim s/o. Jamil Shaikh v. State of
Maharashtra & Anr. (Order dated 29/11/2018 in Criminal
Application No.4353 of 2016) and several other orders passed by
the Division Benches and Single Benches.
6. The leanred counsel at the outset submits that none of the
aforesaid judgments take into account the observations of the
Apex Court in the case of Joseph Kurian Philip Jose v. State of
Kerala reported in (1994) 6 SCC 535 in which the Apex Court
had an occasion to deal with Section 328 of the IPC in the
backdrop of the Kerala Abkari Act. Mr. Ponda would submit that
the invocation and applicability of the provisions of IPC along
with the provisions of FSS Act is a possibility but he would
canvass before us that the ingredients of the two sections must be
made out in order to invoke and apply Section 328 and Section
188 of the IPC to the Petitioners, who have been arraigned as
accused. As far as Section 328 of the IPC is concerned, Mr. Ponda
would submit that the said Section can be bifurcated to cover two
acts, one by a direct method and another by an indirect method.
He would submit that for the direct method to be attracted, there
must be administration to another of one of the substance
mentioned and an indirect method would involve a person
causing one of the substance to be taken by any other person. He
would further submit that in both these methods, the substance
enumerated in the section must be consumed and, in the first
case, it is taken without the intervention of the third person and it
presupposes involvement of the accused and the victim whereas
in the second case, where the substance must be “caused to be
taken”, which necessarily involves a third person who is also
involved in the act of the victim taking the said substance. Mr.
Ponda would attribute the distinct connotation of the term
“caused to be taken” and according to him, it clearly relates to the
past tense/present perfect tense and by no stretch of imagination
would entail an act in future tense. According to him, the use of
the words “caused to be taken” is indicative of legislative intent
that a precondition for the section to apply is that the substance
must be taken in the first place or else the section will not apply
and thus, according to him, unless the act of consumption/taking
is not complete, Section 328 of the IPC is not attracted. Applying
the said corollary, according to him, simple storage of the
substance without anything mentioned in Section 328 and in the
case of the Petitioners, storage of Gutka and Pan Masala ipso
facto would not attract the offence under Section 328 of the IPC
as it would contempalte something more, over and above simple
storage. He would place reliance on the judgment of the Apex
Court in case of Malkiat Singh & Anr. v. The State of Punjab
reported in 1969 (1) SCC 157 through which the Apex Court
brings out the distinction between the preparation and an attempt
in the backdrop of the provisions of Essential Commodities Act,
1965. He would also place reliance on the judgment of the Apex
Court in case of Aman Kumar & Anr. v. State of Haryana
reported in (2004) 4 SCC 379 where a proposition of law came to
be pronounced to the effect that mere intention to commit an
offence, not followed by any act, cannot constitute an offence and
the mere intention is not to be taken for the deed unless there is
some external act to show that progress has been made in the
direction of it or towards maturing or effecting it. With the
assistance of the said judgments, Mr. Ponda would asseverate that
preparation to commit an offence is punishable only under
Section 122 of the IPC (waging war against the Government of
India) and Section 399 of the IPC (preparation to commit
dacoity) and with the assistance of the aforesaid judgment, he
would submit that 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. As far as Section 188 of the IPC is
concerned, Mr. Ponda would submit that the allegations in the
FIR is only restricted to the storage of the prohibited food
product and by storing the said product, it may be alleged that
there is disobedience of the direction issued by the Commissioner
under Section 30 of the FSS Act for which a distinct course of
action in terms of Section 35 of the FSS Act would lie. The
disobedience qua the direction is only for the storage of the food
product and nothing more than that. According to him, Section
188 of the IPC deals with punishment for disobedience of the
order which is promulgated but such disobedience alone is not
punishable under Section 188 of the IPC but it is punishable only
when such disobedience causes or tends to cause obstruction,
annoyance or injury or risk of obstruction, annoyance or injury to
any person lawfully employed and it is only in this contingency
the disobedience is liable for culpability. He has placed reliance
on the judgment of the Apex Court in the case of Ramlila
Maidan Incident reported in (2012) 5 SCC 1.
Mr. Ponda has also placed reliance on the two judgments
reported in 1954 (2) All ER 280 (Queen’s Bench Division) in the
case of Shave v. Rosner and 1975 (1) WLR 988 in the case of
Price v. Cromack to explain the terminology used in Section 328
as well as Section 188 of the IPC viz. the word “causes”. The
submission of learned counsel for the Petitioners can thus be
summarized in nutshell to convey that the Petitioners cannot be
made liable for the offence punishable under Section 328 of the
IPC and Section 188 of the IPC and he is ready and willing to
face the contravention as contemplated under the FSS Act.
7. We have also heard Mr. Deeapk Thakare, learned Public
Prosecutor representing the State of Maharashtra and he would
painstakingly invite our attention to the ill-effect of consumption
of tobacco and any other products containing tobacco viz. Gutka
and Pan Masala and he would submit that all over the world
scientific evidence demonstrate that food products containing
tobacco have extremely deleterious effect on human health and
well being with consequential impact on society. He would
emphasize on the research done by Tata Institute of Fundamental
Research as well as the study conducted by Dr. James Hamner so
also the Report of the Government Dental College stressing that
the consumption of Gutka or Pan Masala, etc. causes oral
submucous fibrosis. Mr. Thakare, learned Public Prosecutor
would vehemently submit that it is the duty of the State to take
necessary steps to improve public health and after going through
various scientific opinion and research it was noted that these
products containing tobacco by whatsoever name referred to it,
cause immense damage to the health of consumers and their
adverse impact could also lead to alterations of the genetic makeup
of future generations. He would further submit that Gutka
and Pan Masala have been construed to be “food” as defined in
Section 3(j) of the FSS Act, and he would place reliance on the
judgment of the Bombay High Court in the case of Dhariwal
Industrial Limited & Anr. v. State of Maharashtra & Ors.
(Judgment dated 15/09/2012 in Writ Petition No.1631 of 2012)
to submit that the said products can be subjected to the regime of
FSS Act. Mr. Thakare would also contradict the submission of
Mr. Ponda by advancing a submission that Section 328 of the IPC
intends to cover an act where a person consume a thing like
poison or any stupefying, intoxicating or unwholesome drug,
which causes a 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 and liable for
punishment under the said section, which is cognizable and non-
compoundable. He has placed reliance on a series of judgments
of this Court taking a view that in the present set of facts, Section
328 of the IPC is attracted.
8. Mr. Thakare, learned Public Prosecutor has invited our
attention to the definition of the term ‘hurt’ under Section 319 of
the IPC to mean any hurt bodily pain, disease or infirmity caused
to any person and he would assert that when the entire scientific
data has been analyzed and contained in the Notification issued
by the Food Safety Commissioner, which is demonstrative of the
ill-effect of use of such food substance and the Commissioner of
Food Safety in the interest of public health has prohibited
manufacture, storage, distribution, transport or sale of any such
article or food which is either tobacco or known by whatsoever
name or whatsoever form, is sold in the market, then according to
Mr. Thakare, the Petitioners are covered by the provisions of the
penal code contained in Sections 328 and 188 of the IPC and he
would pray that the petition be dismissed.
9. We have heard learned counsel for the parties and we can
perceive that the moot question which is placed before us for
adjudication in the present writ petition being whether the
violation of order issued by the Food Safety Commissioner in
exercise of powers conferred under Section 30(2)(a) of the FSS
Act which prohibits the manufacture, storage, distribution,
transport or sale of tobacco either flavoured, scented or mixed
with any of the said additives, and whether known by any name
whatsoever, Gutka, Pan Masala, manufactured chewing tobacco
with additives, kharra or otherwise, whether packaged or
unpackaged and/or sold as one product for its consumption
would attract the provisions of Section 328 and Section 188 of
the IPC.
10. Before proceeding to deal with the said issue, we would like
to make a reference to the provisions of the FSS Act, 2006. The
FSS Act, 2006 which came into force in August, 2006
consolidates the laws relating to food and aims to establish the
Food Safety & Standards Authority of India for laying down
science based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import, to ensure
availability of safe and wholesome food for human consumption
and for matters connected therewith. The said enactment is
based on international legislations and envisages an overarching
policy framework and contains a single window to guide and
regulate persons engaged in manufacture, marketing, handling,
importing and sale of food. It contains provision for graded
penalty depending upon the gravity of offences and prescribe civil
penalty for minor offences and punishment for serious violations.
11. The Act defines the term ‘food’ in a very comprehensive
way so as to cover any substance intended for human
consumption and open the window to include any article declared
as food by notification in the Official Gazette the Central
Government may declare. The FSS Act defines the Food
Authority and provides for establishment of Food Safety
Authority of India, a body corporate, cast with the duty to
regulate and monitor the manufacture, processing, distribution,
sale and import of food so as to ensure safe and wholesome food.
The Authority is empowered by regulations to specify the
standards and guidelines in relation to articles of food can specify
the mechanisms and guidelines for accreditation of certification
bodies engaged in certification of food safety management
systems for food businesses. It also empowered to provide
scientific advice and technical support to the Central Government
and the State Governments in matters of framing the policy and
rules in areas which have a direct or indirect bearing on food
safety and nutrition. The said Authority is responsible for
enforcing of the FSS Act. The Commissioner of Food Safety and
the Designated Officer are empowered to exercise the powers
similar to the powers exercised by Food Safety Officer. It is
imperative on the State Government to appoint a Commissioner
for Food Safety for the State for efficient implementation of food
safety and standards and other requirements laid down under the
FSS Act and the rules and regulations made thereunder. Under
Section 30(2)(a) of the FSS Act, the Commissioner of Food Safety
appointed by the State Government is empowered to impose
prohibition on the manufacture, storage, distribution or sale of
any article of food for a period of one year either in the whole
State or part thereof if it is in the interest of public health.
12. The Commissioner of Food Safety by invoking the said
power has issued notification from time to time by which it has
prohibited the manufacture, storage, distribution or sale of
tobacco and its other forms viz. Gutka, Pan Masala, manufactured
chewing tobacco, etc. for a period of one year. The issuance of
such notification and the power of the Commissioner to issue the
said Notification is not in dispute. According to Mr. Ponda, the
FSS Act is a complete Code and Section 55 of the said Act sets
out a penalty for failure to comply with the directions of the Food
Safety Officer and it is his submission that if the order which is in
the form of direction issued by Food Safety Officer under Section
30(2)(a) of FSS Act is not complied with then the consequences
are provided in the FSS Act itself. The perusal of the provisions
of the enactment discloses that there is a special power conferred
on the Food Safety Officer under Section 41 of the FSS Act in the
form of power of search, seizure, investigation, prosecution and
procedure thereof. Section 42 of the FSS Act, 2006 is a very
peculiar section in the Act and it sets out the procedure for
launching prosecution. We deem it appropriate to reproduce
Section 42 of the FSS Act which reads thus:
“42. Procedure for launching prosecution. –
(1) The Food Safety Officer shall be responsible
for inspection of food business, drawing samples
and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving
the sample from the Food Safety Officer shall
analyse the sample and send the analysis report
mentioning method of sampling and analysis
within fourteen days to Designated Officer with a
copy to Commissioner of Food Safety.
(3) The Designated Officer after
scrutiny of the report of Food Analyst shall decide
as to whether the contravention is punishable
with imprisonment or fine only and in the case of
contravention punishable with imprisonment, he
shall send his recommendations within fourteen
days to the Commissioner of Food Safety for
sanctioning prosecution.
(4) The Commissioner of Food Safety
shall, if he so deems fit decide, within the period
prescribed by the Central Government, as per the
gravity of offence, whether the matter be referred
to,–
(a) a court of ordinary
jurisdiction in case of offences punishable
with imprisonment for a term up to three
years; or
(b) a Special Court in case of
offences punishable with imprisonment for a
term exceeding three years where such
Special Court is established and in case no
Special Court is established, such cases shall
be tried by a Court of ordinary jurisdiction.
(5) The Commissioner of Food Safety
shall communicate his decision to the Designated
Officer and the concerned Food Safety Officer
who shall launch prosecution before courts of
ordinary jurisdiction or Special Court, as the case
may be; and such communication shall also be
sent to the purchaser if the sample was taken
under section 40.”
13. On perusal of the above provisions, the position that
emerges is to the effect that a Designated Officer is competent to
decide as to whether contravention, if any, is to be punished by
imprisonment or with fine and this, he would decide on scrutiny
of the report of the Food Analyst. If he is satisfied that the
contravention is liable to be punished with imprisonment, he is
bound to send his recommendation to the Commissioner within
fourteen days seeking his sanction for prosecution. However,
when he arrives at a conclusion that the contravention should be
punishable with fine only, he himself would decide the same.
Thus what is to be noted is that the contravention contemplated
under the enactment would be dealt with by two distinct
methodology and needless to say that those contraventions which
entail with imprisonment are necessarily of serious nature and,
therefore send for adjudication to the court of law. Section 49 of
the FSS Act then deals with the quantum of penalty for
committing an offence of rendering food injurious to health. The
cases can be made over to the police station in case where the
Designated Officer arrives at a conclusion that the prosecution
has to be launched. The penalty can be imposed for failure to
comply with the directions of the Food Safety Officer under
Section 55 of the FSS Act and even Section 59 of FSS Act would
get attracted if any person who, whether by himself or by any
other person on his behalf, manufactures for sale or stores or sells
or distributes or imports any article of food for human
consumption which is unsafe and the penalty is then prescribed
depending upon the nature of the injury. Section 59 of the FSS
Act which prescribed punishment for unsafe food reads thus:
“59. Punishment for unsafe food.– Any
person who, whether by himself or by any other
person on his behalf, manufactures for sale or
stores or sells or distributes or imports any article
of food for human consumption which is unsafe,
shall be punishable,–
(i) where such failure or
contravention does not result in injury, with
imprisonment for a term which may extend to six
months and also with fine which may extend to
one lakh rupees;
(ii) where such failure or
contravention results in a non-grievous injury,
with imprisonment for a term which may extend
to one year and also with fine which may extend
to three lakh rupees;
(iii) where such failure or
contravention results in a grievous injury, with
imprisonment for a term which may extend to six
years and also with fine which may extend to five
lakh rupees;
(iv) where such failure or
contravention results in death, with
imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life and also with fine which
shall not be less than ten lakh rupees.”
It can thus be seen that sale, storage of any food which is
unsafe for human consumption if it results in grievous injury is
punishable under clause (iii) of Section 59 of the FSS Act if it
results in death is punishable under clause (iv) of Section 59 of
the FSS Act and the punishment may extent under clause (iv) to
imprisonment for life and a heavy fine not less than ten lakhs of
rupees.
On perusal of the entire scheme of FSS Act, it would
emerge that it is a self contained enactment taking care of such
acts or conducts dealing with unsafe food articles and such acts
are liable for penalty in the form of fine or imprisonment as
prescribed.
14. In the present case, the FIR registered against the
Petitioners invoke the provisions of the FSS Act and the
Petitioners are charged with Section 59 which prescribes
punishment for indulging in unsafe food either by manufacturing
it for sale, storage or selling or distributing or importing any such
articles with knowledge that it is unsafe. Mr. Ponda has not
argued to the effect that the Petitioners cannot be charged under
the relevant provisions of the FSS Act. His objection is only to
the invocation and application of Sections 328 and 188 of the
IPC.
15. On perusal of the decision of the Apex Court in the case of
Sayyed Hassan Sayyed Subhan (supra), the Apex Court has clearly
held that non compliance of the prohibitory order which
prohibited transportation and sale of Gutka and Pan Masala
would entail a prosecution under Section 55 of the FSS Act but it
has been held that the provisions of IPC can also be invoked and
applied. The Apex Court did not find favour with the findings of
the High Court which had held that the non compliance of the
notification issued by the Food Safety Commissioner can be
penalized only by imposing fine mentioned in Section 55 and no
complaint under the IPC could have been preferred by the Food
Security Officer for violation of the prohibitory order. Whiel
setting aside the said finding, Their Lordships of the Apex Court
held that the High Court was wrong in holding that the action
can be initiated against the defaulters only under Section 55 of
the FSS Act or under Section 68 of FSS Act for adjudication.
The following observations of the Apex Court need a noting.
“7. There is no bar to a trial or conviction of
an offender under two different enactments, but
the bar is only to the punishment of the offender
twice for the offence. Where an act or an omission
constitutes an offence under two enactments, the
offender may be prosecuted and punished under
either or both enactments but shall not be liable to
be punished twice for the same offence. The same
set of facts, in conceivable cases, can constitute
offences under two different laws. An act or an
omission can amount to and constitute an offence
under the Indian Penal Code and at the same
time, an offence under any other law. The High
Court ought to have taken note of Section 26 of
the General Clauses Act, 1897 which reads as
follows:
“Provisions as to offences punishable
under two or more enactments-Where
an act or omission constitutes an
offence under two or more enactments,
then the offender shall be liable to be
prosecuted and punished under either
or any of those enactments, but shall
not be liable to be punished twice for
the same offence.”
8. In Hat Singh's case this Court discussed the
doctrine of double jeopardy and Section 26 of the
General Clauses Act to observe that prosecution
under two different Acts is permissible if the
ingredients of the provisions are satisfied on the
same facts. While considering a dispute about the
prosecution of the Respondent therein for
offences under the Mines and Minerals
(Development and Regulation) Act 1957 and
Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay held that there is no bar in
prosecuting persons under the Penal Code where
the offences committed by persons are penal and
cognizable offences. A perusal of the provisions of
the FSS Act would make it clear that there is no
bar for prosecution under the Indian Penal Code
merely because the provisions in the FSS Act
prescribe penalties. We, therefore, set aside the
finding of the High Court on the first point.”
16. After making the aforesaid observations, the point as to
whether the offences punishable under Sections 188, 272, 273
and 328 of the IPC have been made out or not, the matter was
remanded to the High Court to be decided afresh by permitting
both the sides to raise all their contentions. The Aurangabad
Bench of this Court proceeded to deal with the said arguments on
the applicability of the relevant provisions of the IPC in the case
of Vasim Shaikh (supra).
Before we go to the said judgment, it would be apposite for
us to reproduce Section 328 of the IPC which 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.”
17. The Apex Court had an occasion to deal with Section 328
of the IPC in case of Joseph Kurian Philip Jose (supra). The
criminal appeals placed before the Apex Court arose out of a
phase of sporadic incidents referred to as "Punalur Liquor
Tragedy" where certain persons died and others received injuries
due to consumption of poisonous adulterated arrack, ethyl
alcohol adulterated with methyl alcohol. Cases under Sections
272 and 328 of the IPC and Section 57(a) of the Kerala Abkari
Act were registered. On recording a finding of guilt against A-1
and A-4, the Sessions Court imposed sentence. The remaining
accused were found guilty of offences punishable under the
Abkari Act and were imposed nominal sentences of fine only.
The High Court confirmed the conviction and sentence of A-1
and conviction of A-4 came to be set aside and he was convicted
under Section 109 for abetting the offences punishable under
Sections 272 and 328 of the IPC. In the backdrop of these facts,
the Apex Court was called upon to decide the applicability of
Sections 272 and 328 of the IPC against the said Accused.
Adulteration of liquor is prohibited under Section 57 of the
Abkari Act to a licensed vendor or manufacturer. After making a
reference to the provisions of Section 328 of the IPC, the Apex
Court observed thus:
“In order to prove offence under Section 328 the
prosecution is required to prove that the substance
in question was a poison, or any stupefying,
intoxicating or unwholesome drug etc, that the
accused administered the substance to the
complainant or caused the complainant to take
such substance, that he did so with intent to cause
hurt or knowing it to be likely that he would
thereby cause hurt, or with the intention to
commit or facilitate the commission of an offence.
It is, therefore, essential for the prosecution to
prove that the accused was directly responsible for
administering poison etc. or causing it to be taken
by any person, through another. In other words,
the accused may accomplish the act by himself or
by means of another. In either situation direct,
reliable and cogent evidence is necessary. Now on
that basis it has to be seen whether A-1 had any
role to play in directly administering to or causing
to be taken the poisonous liquor by Sreedharan
Pillai deceased, who had purchased and consumed
liquor from a retail shop, with intent to cause hurt
to him or knowing it to be likely that it would
cause hurt to him. This has to be solved remaining
cognizant that Sections 272 and 328 are separate
offences described in the Indian Penal Code.”
11. As it appears both the findings of the Trial
Judge as also by the High Court are somewhat
vague and confusing. The Trial Court observed, as
is evident from the emphasised portion, that it
cannot be said that the accused or any of them
knew that arrack mixed with small quantity of
methyl alcohol (2.64% as found by the chemical
analyst) was likely to cause death or serious bodily
injury that is likely to cause death. On this finding
applicability of Section 302 or even that of
Section 304 I.P.C. has been ruled out. This
finding on the fact situation is open to doubt. If
the finding be correct that the accused did not
have guilty knowledge of causing death or of
likelihood of causing death or of serious bodily
injury likely to cause death, how could the guilty
knowledge stop in that slide or grading not
coming down to take within its arms hurt also.
The act of the accused in adulterating liquor per
se, as the law then stood sans amendments, would
not attract the provision of Section 328 of I.P.C.
unless there is positive evidence that A-1
administered the poisoned liquor directly or by
Sreedharan, deceased indirectly caused it to be
taken by Sreedharan indirectly with the necessary
intent and mens rea. This view of the learned
Trial Judge as confirmed by the High Court does
not appear to us to be sound in the back drop of
the death actually occurring. But since it has taken
that view it cannot stop short of hurt and so must
slip down to a fall downright. Important links in
the prosecution case on this particular remain
otherwise missing. A-1 would thus have to be
acquitted of the charge under Section 328 IPC in
carrying out the findings of the High Court to
their logical end.”
18. The said observations are accordant in the backdrop of the
facts of the case which we are dealing. It is held that in order to
prove an offence under Section 328 of the IPC, it is essential for
the prosecution to prove that the accused was directly responsible
for administering poison etc. or causing it to be taken by any
person, through another and it is further clarified that the accused
may accomplish the act by himself or by means of another and in
either of these situations direct, reliable and cogent evidence is
necessary and in the backdrop of this proposition the Apex Court
examined whether A-1 had any role to play in directly
administering to or causing to be taken the poisonous liquor by
the deceased, who had purchased and consumed liquor from a
retail shop.
The conviction of A-1 under Section 328 of the IPC was set
aside since the prosecution was not been able to prove that it was
he who administered the said liquor to the deceased or he caused
it to be consumed by the deceased though the case of the
prosecution was that the liquor was sold out from the Punalur
Depot where from the adulterated sample was taken. The
adulterated liquor was sold out at the said Depot by A-1 and,
therefore, his conviction under the Abkari Act came to be
maintained.
19. This binding precedent has clearly missed the attention by
the Division Bench of this High Court while deciding the case on
remand from the Apex Court. In case of Vasim Shaikh in dealing
with an application under Section 482 of Cr.P.C. for quashing of
FIR which came to be registered when huge quantity of Pan
Masala and scented tobacco were seized on search of the house of
one Khurshida Hamid Shaikh, the Division Bench while taking
note of the case of prosecution that the accused did not produce
bills of purchase nor supply any information as to from where he
has brought these goods and after noting that the Pan Masala and
Gutka contained harmful contents which are possible for causing
of disease like cancer, recorded a finding to the following effect.
“5. It is not disputed that in Maharashtra,
there is prohibition to manufacture, possess and
on sale of aforesaid food articles and the
possession or sale or manufacture is made
punishable under the Act. The relevant
provisions of this Enactment 26(2)(1), 3(1)(ZZ),
27(3)(E) R/w. 59 and 27(3)(d) are also
mentioned by the Food Safety Officer. There
was no question of licence of any kind with the
applicants and from the huge quantity which is
recovered, it can be said that they had the
intention to sell these articles as food articles.”
The subsequent judgments follow the same path and are
relied upon by the learned Public Prosecutor to submit that the
issue as to the applicability of Section 328 of the IPC in case of
the Petitioners is already put to rest by the aofresaid judgments.
20. We must candidly express that the Division Bench has not
taken into consideration the judgment of the Apex Court in the
case of Joseph Kurian Philip Jose (supra) and, therefore, we do
not felt bound by the same as it is per incuriam. Apart from this,
it did not go to the root of the issue as to whether offence under
Section 328 of the IPC is made out.
21. Section 328 of the IPC finds place in Chapter XVI under
caption “Causing hurt by means of poison, etc”. The offence
under Section 328 IPC is cognizable, non-bailable and noncompoundable.
We can analyse the said section by dissecting it
into two parts, first part viz. “whoever administers to” and second
part “or causes to be taken by any person”. The first part uses the
terminology ‘Administers to’. The Cambridge Dictionary defines
the term ‘Administer’ to mean to control the operation or
arrangement of something and its colloquial meaning is to cause
someone to receive something. The Collins Dictionary defines it
to mean ‘to direct or control or to put into execution; dispense’.
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. The word ‘causes’
involves some degree of dominance or, control or some express
or positive mandate and necessarily induces an element of some
active operation aimed at a result. The word ‘cause’ which
denotes to make something happen is a verb whereas the word
‘causing’ is present participle of the word ‘cause’.
The judgment of the Queens Bench in the case of Shave
(supra) relied upon by Mr. Ponda aptly depicts an illustration of
‘causing’ in the backdrop of the provisions contained in the Motor
Vehicles (Construction and Use) Regulations, 1951. The
pronouncement came in the backdrop when an owner of a motor
vehicle left it at the respondent’s garage to have the brakes reshoed
and after the work was completed, the vehicle was
delivered to the owner, who drove the respondent back to garage
so as to test the brakes himself. Later on, the same day, while the
owner was driving the vehicle, one of the front wheels came off
and injured a passer-by and the accident occurred since the nuts
were not properly fastened by the respondent’s workmen while
carrying out the works of the brakes. The respondent was
charged with ‘unlawfully causing’ a vehicle to be used on a road in
such condition that danger was caused to a person on the road
contrary to the Motor Vehicles (Construction and Use)
Regulations, 1951. The Queens Bench in these facts held that
the word ‘causes’ in the Regulations of 1951 involved some degree
of dominance or control over the person who used the vehicle, or
some express or positive mandate to him, by or from the person
alleged to have caused the user after the respondent had delivered
the vehicle back to the owner he ceased to have any control over
it; and, therefore, he had not caused it to be used on a road within
the meaning of Regulation 101. Lord Goddard, C.J., by referring
to the Regulation penned his verdict in the following manner ‘if
any person uses or causes or permits to be used on any road a
motor vehicle or trailer in contravention of or fails to comply with
any of the preceding regulations contained in Part III of these
regulations, he shall for each offence will be liable to a fine’ held
that the expressions ‘causes or permits’ in contrast or juxtaposition
‘permit’ means giving leave and licence to somebody to use the
vehicle, and ‘causes’ involves a person, who has authority to do so,
ordering or directing another person to use it”. The distinction is
succinctly brought out in the following word of Lord Goddard,
C.J. - “If I allow a friend of mine to use my motor car, I am
permitting him to use it. If I tell my chauffeur to bring my car
round and drive me to the courts, I am causing the car to be used.
There may be a civil liability to indemnify the owner if he is made
liable, …. but if the owner is sued, the garage proprietor would
have an action brought against him and part of the damage for
not doing the work properly would be the damages the owner is
caused to pay to the person injured. But, from the point of view
of the criminal law, I do not think the regulation is wide enough
to catch this case.” The word ‘causes’ was therefore interpreted to
be something involving control or dominance or compulsion.
22. Reliance by Mr. Ponda on another Queens Bench judgment
in Price (supra) which also drive home the succinct distinction
between the words ‘permitting’ and ‘causing’ in the following
words of Lord Widgery C.J. “It is important to note that the
distinction between ‘causing’ and ‘knowingly permitting’ was very
much in their Lordship’s minds. It seems to me that the
overwhelming opinion of their Lordships in that case was, that
whatever else ‘causing’ might or might not involve, it did involve
some active operation as opposed to mere tacit standing by and
looking on. That is made good first of all by Lord Wilberforce,
who said “The subsection evidently contemplates to things –
causing, which must involve some active operation or chain of
operations involving as the result the pollution of the stream;
knowingly permitting, which involves a failure to prevent the
pollution, which failure, however, must be accompanied by
knowledge.”
The term ‘causes’ thus demand some action – some
involvement and when we refer this term in Section 328, the
upshot is that Section 328 of the IPC gets attracted in two
possibilities one of direct administration of anything with an
intent to cause hurt or indirect causation of a thing to be taken by
any person with an intent to cause hurt. It is only in the presence
of two aforesaid ingredients, the section gets attracted and in the
absence of any ‘administration’ to another or the accused ‘causing’
any person to take the substance, person cannot be made liable
for an offence under Section 328 of the IPC. The act of storage
which is alleged against the Petitioners fall short of the ingredients
of Section 328 of the IPC. Mere storage without any further
action and on a contemplation that it would be sold in the
market, brought by a person from the market and consumed by
him is too far fetched consequence of an act of ‘administering’ or
‘causing to be taken’.
Mere storage cannot even be construed as an attempt to
commit an offence under Section 328 of the IPC since an act
would become an attempt only on a positive act being committed
by a person which would have resulted in commission of offence.
However, the unforeseen act beyond the control of the accused,
can only be an attempt. Mr. Ponda has rightly relied upon the
judgment in the case of Malkiat Singh (supra) to drive succinct
distinction between the preparation and attempt to commit a
crime where the Apex Court has held that only preparation is not
an attempt and the test for determining whether the act
constituted an attempt or preparation is whether the overt acts
already done are such that if the offender changes his mind and
does not proceed further in its progress, the acts already done
would be completely harmless. The transportation of paddy in
violation of Punjab Paddy (Export Control) Order, 1959 and
when a truck was seized in Samalkha, Punjab Boundary 32 miles
away from Delhi, the Apex Court held that there was no attempt
on the part of the Appellant to commit the offence of export. It
was merely preparation and the preparation for committing an
offence is distinct from attempt to commit it. The preparation,
according to the Apex Court would consists in devising or
arranging the means or measures necessary for the commission of
the offence whereas an attempt is a direct movement towards the
commission after the preparation was made. The storage of the
prohibited substance could not therefore be brought within the
purview of an attempt to commit an offence under Section 328
and nevertheless it do not attract Section 328 of the IPC.
23. The argument as regards Section 188 of the IPC advanced
by Mr. Ponda is also required to be considered with reference to
the use of the phraseology employed in the said section. Section
188 of the IPC reads thus:
“188. Disobedience to order duly promulgated
by public servant.—Whoever, knowing that, by
an order promulgated by a public servant lawfully
empowered to promulgate such order, he is
directed to abstain from a certain act, or to take
certain order with certain property in his
possession or under his management, disobeys
such direction, shall, if such disobedience causes
or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury,
to any person lawfully employed, be punished
with simple imprisonment for a term which may
extend to one month or with fine which may
extend to two hundred rupees, or with both; and
if such disobedience causes or trends to cause
danger to human life, health or safety, or causes or
tends to cause a riot or affray, 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. Explanation.—It is not necessary that
the offender should intend to produce harm, or
contemplate his disobedience as likely to produce
harm. It is sufficient that he knows of the order
which he disobeys, and that his disobedience
produces, or is likely to produce, harm.
Illustration An order is promulgated by a public
servant lawfully empowered to promulgate such
order, directing that a religious procession shall
not pass down a certain street. A knowingly
disobeys the order, and thereby causes danger of
riot. A has committed the offence defined in this
section.”
24. A close analysis of the said section would reveal that
whoever disobeys an order promulgated by a public servant
directing to abstain from certain acts, or to take certain orders
with certain property in his possession, disobeys such direction,
would attract Section 188 of the IPC if such disobedience causes
or tends to cause obstruction, annoyance or injury, or risk of it, to
any person lawfully employed and if such disobedience causes or
tends to cause danger to human life, health or safety shall be
punished under the said section. The keywords being ‘causes or
tends to cause danger to human life, health or safety ’. The
disobedience of the public order apart from attracting a penalty
under Section 55 of the FSS Act would, in view of the decision of
the Apex Court in Sayyed Hussain (supra), attract Section 188 of
the IPC but it would have to be examined whether it falls within
the mischief sought to be penalised by the said section. 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. The section do not use the term
‘likely to cause’, conveying that there has to be a positive evidence
of causing or tends to cause danger to human life and in absence,
Section 188 is not attracted. It is not in doubt that the tobacco
and its products are dangerous to human life and safety.
However, mere possession or storage cannot fall within the
purview of ‘Danger’ contemplated under the said section. 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. The
Apex Court in Joseph Kurian Philip Jose (supra), has succinctly
drawn a distinction in the two terminologies applied by Section
328 of the IPC in the form of direct and indirect methods and the
said judgment continues to be an authoritative and binding
precedent till date. In the light of the aforesaid position emerging
from the submissions advanced before us, we do not intend to
continue the prosecution against the Petitioners as it would
merely amount to an abuse of process of law and the prosecution
of the Petitioners under Sections 328 and 188 of the IPC,
therefore, cannot continue. We do not make any comment on the
prosecution of the Petitioners under the FSS Act and we are not
inclined to show any indulgence to the Petitioners on that count.
The Respondent-Authorities are permitted to prosecute the
Petitioners under the provisions of the said enactment.
Resultantly, we quash and set aside the FIR bearing No.87
of 2019 dated 2nd March 2019 registered against the Petitioners
only to the extent it registered offence against the Petitioners
under Section 328 and 188 of the IPC and we restrain the
Respondents from initiating any action against the aforesaid
provisions under the IPC.
(SMT. BHARATI DANGRE, J.) (RANJIT MORE, J.)
Print Page
whoever disobeys an order promulgated by a public servant
directing to abstain from certain acts, or to take certain orders
with certain property in his possession, disobeys such direction,
would attract Section 188 of the IPC if such disobedience causes
or tends to cause obstruction, annoyance or injury, or risk of it, to
any person lawfully employed and if such disobedience causes or
tends to cause danger to human life, health or safety shall be
punished under the said section. The keywords being ‘causes or
tends to cause danger to human life, health or safety ’. The
disobedience of the public order apart from attracting a penalty
under Section 55 of the FSS Act would, in view of the decision of
the Apex Court in Sayyed Hussain (supra), attract Section 188 of
the IPC but it would have to be examined whether it falls within
the mischief sought to be penalised by the said section. 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. The section do not use the term
‘likely to cause’, conveying that there has to be a positive evidence
of causing or tends to cause danger to human life and in absence,
Section 188 is not attracted. It is not in doubt that the tobacco
and its products are dangerous to human life and safety.
However, mere possession or storage cannot fall within the
purview of ‘Danger’ contemplated under the said section. 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. The
Apex Court in Joseph Kurian Philip Jose (supra), has succinctly
drawn a distinction in the two terminologies applied by Section
328 of the IPC in the form of direct and indirect methods and the
said judgment continues to be an authoritative and binding
precedent till date. In the light of the aforesaid position emerging
from the submissions advanced before us, we do not intend to
continue the prosecution against the Petitioners as it would
merely amount to an abuse of process of law and the prosecution
of the Petitioners under Sections 328 and 188 of the IPC,
therefore, cannot continue.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3607 OF 2019
Anand Ramdhani Chaurasia Vs The State of Maharashtra,
CORAM : SHRI RANJIT MORE &
SMT. BHARATI DANGRE, JJ.
PRONOUNCED ON: 13th SEPTEMBER, 2019.
JUDGMENT:- [Per: Smt. Bharati Dangre, J.]
1. The tobacco epidemic is one of the biggest public health
threat the world ever faced, killing 8 million and the Report of the
World Health Organization dated 26/07/2019 brings out that
more than 7 million of those deaths, are the result of the direct
use of tobacco. Good monitoring tracks the extent and character
of this tobacco epidemic and indicates how to evolve best policies
to deal with this menace. The steps taken throughout the world
in the form of bans imposed on tobacco advertisement and
promotion, pictorial health warning and the high rate of taxes
dealing with illicit trade of tobacco, has yielded some positive
results.
2. The scale of human and economic tragedy that tobacco
imposed is shocking. In 2003, the World Health Organization
member states universally adopted the WHO Framework
Convention on Tobacco Control (“WHO FCTC”), which came
into force in 2005. It has currently 185 parties covering more
than 90% of the world population. There is a fundamental and
irreconcilable conflict between the tobacco industries’ interest on
the one hand and public health industries’ interest on the other
hand.
The present writ petition is an illustration depicting such a
conflict in the form of transportation and sale of Gutka and Pan
Masala, the former being a chewing tobacco, preparation made of
crushed areca nut, tobacco, catechu, paraffin wax, slaked lime and
sweet or savory flavourings. It contains carcinogens, which is
identified to be a cause for oral cancer and other severe negative
health effects. Pan Masala on the other hand, is a combination of
betel leaf and areca nut and may contain tobacco. Both the
aforesaid products are highly addictive in nature.
3. The primary duty of every State in terms of the Directive
Principles of the State Policy as enshrined in Article 47 of the
Constitution being to improve public health which implicitly
includes the concept of provision of measures to be taken for
prevention of deterioration of citizen’s health. The Food Safety
Commissioner of Food & Drug Administration, Government of
Maharashtra in exercise of his power to be discharged in the form
of duty under Section 30(2)(a) of the Food Safety & Standards
Act, 2006 (hereinafter referred to as “the FSS Act, 2006”) in
order to prohibit in the interest of public health, has issued orders
from time to time in exercise of said power and has identified
tobacco as one of such article of food listed at Sr.No.40 in table
under sub-regulation 2.3.1 and has made tobacco, whether
flavoured, scented or mixed with other ingredients such as
nicotine, menthol, etc. and in terms of the Food Safety &
Standards (Prohibition & Restriction on Sales) Regulations 2011
has imposed a complete prohibition for a period of one year, on
the manufacture, storage, distribution, transport or sale of tobacco
in whatsoever form and name being available in the market. The
regime in which the present writ petition emanated had the
existence of order issued by the Commissioner of Food Safety on
20/07/2018 and here we deem it appropriate to note that such
notifications have been issued in the past prior to the present
notification.
4. The Petitioners, who are arraigned as accused in FIR
bearing No.87 of 2019 registered with Samta Nagar Police
Station on 02/03/2019 for the 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 FSS Act, 2006 have approached this
Court for quashing and setting aside the said FIR.
The FIR is registered on the basis of complaint received
from the Food Safety Officer i.e. Respondent No.4 recording that
when the residents and godown of the Petitioners was raided,
Gutka and Pan Masala pouches were found to be stored and this
storage contravened to the Notification dated 20/07/2018 issued
by the Food Safety Commissioner, State of Maharashtra.
Pursuant to the registration of the FIR, the Petitioners came to be
arrested on 02/03/2019 and were released on bail on 05/03/2019.
It is in the backdrop of this limited facts, the petition poses a
challenge to the action initiated against them by registering the
FIR and invoking and applying Section 328 and Section 188 of
the IPC.
5. The arguments advanced by Mr. Ponda, the learned counsel
appearing for the Petitioners is enlaced around the Food Safety &
Standards Act, 2006 which according to him is a complete Code
in itself empowering the Food Safety Officer to take necessary
steps and regulate the manufacture, storage, distribution and sale
and import of food products to ensure that safe and wholesome
food is available for human consumption. Mr. Ponda has invited
our attention to the gamut of the litigation revolving around the
FSS Act and the provisions of the IPC, in specific, Section 328
and Section 188 of the IPC and would submit that in the State of
Maharashtra, several complaints came to be lodged by the Food
Safety Officers resulting into registration of FIRs for the offences
punishable under the provisions of Sections 26 and 30 of the FSS
Act and under the provisions viz. 188, 272, 273 and 328 of the
IPC. He has invited our attention to the judgment of the
Division Bench of this Court in the case of Ganesh Pandurang
Jadhao v. State of Maharashtra reported in 2016 Cri. L.J. 2401
and the judgment of the Apex Court in the case of State of
Maharashtra & Anr. v. Sayyed Hassan Sayyed Subhan & Ors .
reported in 2018 AIR (SC) 5348 where the Apex Court after
recording that there is no bar to a trial or conviction of offender
under the two different enactment but limiting the bar to the
punishment to be imposed on the offender, 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.
Mr. Ponda has thus invited our attention to the Division Bench
judgment delivered at Aurangabad dealing with the issue as
regards the applicability and invocation of Sections 272, 273 and
328 of the IPC in case of Vasim s/o. Jamil Shaikh v. State of
Maharashtra & Anr. (Order dated 29/11/2018 in Criminal
Application No.4353 of 2016) and several other orders passed by
the Division Benches and Single Benches.
6. The leanred counsel at the outset submits that none of the
aforesaid judgments take into account the observations of the
Apex Court in the case of Joseph Kurian Philip Jose v. State of
Kerala reported in (1994) 6 SCC 535 in which the Apex Court
had an occasion to deal with Section 328 of the IPC in the
backdrop of the Kerala Abkari Act. Mr. Ponda would submit that
the invocation and applicability of the provisions of IPC along
with the provisions of FSS Act is a possibility but he would
canvass before us that the ingredients of the two sections must be
made out in order to invoke and apply Section 328 and Section
188 of the IPC to the Petitioners, who have been arraigned as
accused. As far as Section 328 of the IPC is concerned, Mr. Ponda
would submit that the said Section can be bifurcated to cover two
acts, one by a direct method and another by an indirect method.
He would submit that for the direct method to be attracted, there
must be administration to another of one of the substance
mentioned and an indirect method would involve a person
causing one of the substance to be taken by any other person. He
would further submit that in both these methods, the substance
enumerated in the section must be consumed and, in the first
case, it is taken without the intervention of the third person and it
presupposes involvement of the accused and the victim whereas
in the second case, where the substance must be “caused to be
taken”, which necessarily involves a third person who is also
involved in the act of the victim taking the said substance. Mr.
Ponda would attribute the distinct connotation of the term
“caused to be taken” and according to him, it clearly relates to the
past tense/present perfect tense and by no stretch of imagination
would entail an act in future tense. According to him, the use of
the words “caused to be taken” is indicative of legislative intent
that a precondition for the section to apply is that the substance
must be taken in the first place or else the section will not apply
and thus, according to him, unless the act of consumption/taking
is not complete, Section 328 of the IPC is not attracted. Applying
the said corollary, according to him, simple storage of the
substance without anything mentioned in Section 328 and in the
case of the Petitioners, storage of Gutka and Pan Masala ipso
facto would not attract the offence under Section 328 of the IPC
as it would contempalte something more, over and above simple
storage. He would place reliance on the judgment of the Apex
Court in case of Malkiat Singh & Anr. v. The State of Punjab
reported in 1969 (1) SCC 157 through which the Apex Court
brings out the distinction between the preparation and an attempt
in the backdrop of the provisions of Essential Commodities Act,
1965. He would also place reliance on the judgment of the Apex
Court in case of Aman Kumar & Anr. v. State of Haryana
reported in (2004) 4 SCC 379 where a proposition of law came to
be pronounced to the effect that mere intention to commit an
offence, not followed by any act, cannot constitute an offence and
the mere intention is not to be taken for the deed unless there is
some external act to show that progress has been made in the
direction of it or towards maturing or effecting it. With the
assistance of the said judgments, Mr. Ponda would asseverate that
preparation to commit an offence is punishable only under
Section 122 of the IPC (waging war against the Government of
India) and Section 399 of the IPC (preparation to commit
dacoity) and with the assistance of the aforesaid judgment, he
would submit that 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. As far as Section 188 of the IPC is
concerned, Mr. Ponda would submit that the allegations in the
FIR is only restricted to the storage of the prohibited food
product and by storing the said product, it may be alleged that
there is disobedience of the direction issued by the Commissioner
under Section 30 of the FSS Act for which a distinct course of
action in terms of Section 35 of the FSS Act would lie. The
disobedience qua the direction is only for the storage of the food
product and nothing more than that. According to him, Section
188 of the IPC deals with punishment for disobedience of the
order which is promulgated but such disobedience alone is not
punishable under Section 188 of the IPC but it is punishable only
when such disobedience causes or tends to cause obstruction,
annoyance or injury or risk of obstruction, annoyance or injury to
any person lawfully employed and it is only in this contingency
the disobedience is liable for culpability. He has placed reliance
on the judgment of the Apex Court in the case of Ramlila
Maidan Incident reported in (2012) 5 SCC 1.
Mr. Ponda has also placed reliance on the two judgments
reported in 1954 (2) All ER 280 (Queen’s Bench Division) in the
case of Shave v. Rosner and 1975 (1) WLR 988 in the case of
Price v. Cromack to explain the terminology used in Section 328
as well as Section 188 of the IPC viz. the word “causes”. The
submission of learned counsel for the Petitioners can thus be
summarized in nutshell to convey that the Petitioners cannot be
made liable for the offence punishable under Section 328 of the
IPC and Section 188 of the IPC and he is ready and willing to
face the contravention as contemplated under the FSS Act.
7. We have also heard Mr. Deeapk Thakare, learned Public
Prosecutor representing the State of Maharashtra and he would
painstakingly invite our attention to the ill-effect of consumption
of tobacco and any other products containing tobacco viz. Gutka
and Pan Masala and he would submit that all over the world
scientific evidence demonstrate that food products containing
tobacco have extremely deleterious effect on human health and
well being with consequential impact on society. He would
emphasize on the research done by Tata Institute of Fundamental
Research as well as the study conducted by Dr. James Hamner so
also the Report of the Government Dental College stressing that
the consumption of Gutka or Pan Masala, etc. causes oral
submucous fibrosis. Mr. Thakare, learned Public Prosecutor
would vehemently submit that it is the duty of the State to take
necessary steps to improve public health and after going through
various scientific opinion and research it was noted that these
products containing tobacco by whatsoever name referred to it,
cause immense damage to the health of consumers and their
adverse impact could also lead to alterations of the genetic makeup
of future generations. He would further submit that Gutka
and Pan Masala have been construed to be “food” as defined in
Section 3(j) of the FSS Act, and he would place reliance on the
judgment of the Bombay High Court in the case of Dhariwal
Industrial Limited & Anr. v. State of Maharashtra & Ors.
(Judgment dated 15/09/2012 in Writ Petition No.1631 of 2012)
to submit that the said products can be subjected to the regime of
FSS Act. Mr. Thakare would also contradict the submission of
Mr. Ponda by advancing a submission that Section 328 of the IPC
intends to cover an act where a person consume a thing like
poison or any stupefying, intoxicating or unwholesome drug,
which causes a 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 and liable for
punishment under the said section, which is cognizable and non-
compoundable. He has placed reliance on a series of judgments
of this Court taking a view that in the present set of facts, Section
328 of the IPC is attracted.
8. Mr. Thakare, learned Public Prosecutor has invited our
attention to the definition of the term ‘hurt’ under Section 319 of
the IPC to mean any hurt bodily pain, disease or infirmity caused
to any person and he would assert that when the entire scientific
data has been analyzed and contained in the Notification issued
by the Food Safety Commissioner, which is demonstrative of the
ill-effect of use of such food substance and the Commissioner of
Food Safety in the interest of public health has prohibited
manufacture, storage, distribution, transport or sale of any such
article or food which is either tobacco or known by whatsoever
name or whatsoever form, is sold in the market, then according to
Mr. Thakare, the Petitioners are covered by the provisions of the
penal code contained in Sections 328 and 188 of the IPC and he
would pray that the petition be dismissed.
9. We have heard learned counsel for the parties and we can
perceive that the moot question which is placed before us for
adjudication in the present writ petition being whether the
violation of order issued by the Food Safety Commissioner in
exercise of powers conferred under Section 30(2)(a) of the FSS
Act which prohibits the manufacture, storage, distribution,
transport or sale of tobacco either flavoured, scented or mixed
with any of the said additives, and whether known by any name
whatsoever, Gutka, Pan Masala, manufactured chewing tobacco
with additives, kharra or otherwise, whether packaged or
unpackaged and/or sold as one product for its consumption
would attract the provisions of Section 328 and Section 188 of
the IPC.
10. Before proceeding to deal with the said issue, we would like
to make a reference to the provisions of the FSS Act, 2006. The
FSS Act, 2006 which came into force in August, 2006
consolidates the laws relating to food and aims to establish the
Food Safety & Standards Authority of India for laying down
science based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import, to ensure
availability of safe and wholesome food for human consumption
and for matters connected therewith. The said enactment is
based on international legislations and envisages an overarching
policy framework and contains a single window to guide and
regulate persons engaged in manufacture, marketing, handling,
importing and sale of food. It contains provision for graded
penalty depending upon the gravity of offences and prescribe civil
penalty for minor offences and punishment for serious violations.
11. The Act defines the term ‘food’ in a very comprehensive
way so as to cover any substance intended for human
consumption and open the window to include any article declared
as food by notification in the Official Gazette the Central
Government may declare. The FSS Act defines the Food
Authority and provides for establishment of Food Safety
Authority of India, a body corporate, cast with the duty to
regulate and monitor the manufacture, processing, distribution,
sale and import of food so as to ensure safe and wholesome food.
The Authority is empowered by regulations to specify the
standards and guidelines in relation to articles of food can specify
the mechanisms and guidelines for accreditation of certification
bodies engaged in certification of food safety management
systems for food businesses. It also empowered to provide
scientific advice and technical support to the Central Government
and the State Governments in matters of framing the policy and
rules in areas which have a direct or indirect bearing on food
safety and nutrition. The said Authority is responsible for
enforcing of the FSS Act. The Commissioner of Food Safety and
the Designated Officer are empowered to exercise the powers
similar to the powers exercised by Food Safety Officer. It is
imperative on the State Government to appoint a Commissioner
for Food Safety for the State for efficient implementation of food
safety and standards and other requirements laid down under the
FSS Act and the rules and regulations made thereunder. Under
Section 30(2)(a) of the FSS Act, the Commissioner of Food Safety
appointed by the State Government is empowered to impose
prohibition on the manufacture, storage, distribution or sale of
any article of food for a period of one year either in the whole
State or part thereof if it is in the interest of public health.
12. The Commissioner of Food Safety by invoking the said
power has issued notification from time to time by which it has
prohibited the manufacture, storage, distribution or sale of
tobacco and its other forms viz. Gutka, Pan Masala, manufactured
chewing tobacco, etc. for a period of one year. The issuance of
such notification and the power of the Commissioner to issue the
said Notification is not in dispute. According to Mr. Ponda, the
FSS Act is a complete Code and Section 55 of the said Act sets
out a penalty for failure to comply with the directions of the Food
Safety Officer and it is his submission that if the order which is in
the form of direction issued by Food Safety Officer under Section
30(2)(a) of FSS Act is not complied with then the consequences
are provided in the FSS Act itself. The perusal of the provisions
of the enactment discloses that there is a special power conferred
on the Food Safety Officer under Section 41 of the FSS Act in the
form of power of search, seizure, investigation, prosecution and
procedure thereof. Section 42 of the FSS Act, 2006 is a very
peculiar section in the Act and it sets out the procedure for
launching prosecution. We deem it appropriate to reproduce
Section 42 of the FSS Act which reads thus:
“42. Procedure for launching prosecution. –
(1) The Food Safety Officer shall be responsible
for inspection of food business, drawing samples
and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving
the sample from the Food Safety Officer shall
analyse the sample and send the analysis report
mentioning method of sampling and analysis
within fourteen days to Designated Officer with a
copy to Commissioner of Food Safety.
(3) The Designated Officer after
scrutiny of the report of Food Analyst shall decide
as to whether the contravention is punishable
with imprisonment or fine only and in the case of
contravention punishable with imprisonment, he
shall send his recommendations within fourteen
days to the Commissioner of Food Safety for
sanctioning prosecution.
(4) The Commissioner of Food Safety
shall, if he so deems fit decide, within the period
prescribed by the Central Government, as per the
gravity of offence, whether the matter be referred
to,–
(a) a court of ordinary
jurisdiction in case of offences punishable
with imprisonment for a term up to three
years; or
(b) a Special Court in case of
offences punishable with imprisonment for a
term exceeding three years where such
Special Court is established and in case no
Special Court is established, such cases shall
be tried by a Court of ordinary jurisdiction.
(5) The Commissioner of Food Safety
shall communicate his decision to the Designated
Officer and the concerned Food Safety Officer
who shall launch prosecution before courts of
ordinary jurisdiction or Special Court, as the case
may be; and such communication shall also be
sent to the purchaser if the sample was taken
under section 40.”
13. On perusal of the above provisions, the position that
emerges is to the effect that a Designated Officer is competent to
decide as to whether contravention, if any, is to be punished by
imprisonment or with fine and this, he would decide on scrutiny
of the report of the Food Analyst. If he is satisfied that the
contravention is liable to be punished with imprisonment, he is
bound to send his recommendation to the Commissioner within
fourteen days seeking his sanction for prosecution. However,
when he arrives at a conclusion that the contravention should be
punishable with fine only, he himself would decide the same.
Thus what is to be noted is that the contravention contemplated
under the enactment would be dealt with by two distinct
methodology and needless to say that those contraventions which
entail with imprisonment are necessarily of serious nature and,
therefore send for adjudication to the court of law. Section 49 of
the FSS Act then deals with the quantum of penalty for
committing an offence of rendering food injurious to health. The
cases can be made over to the police station in case where the
Designated Officer arrives at a conclusion that the prosecution
has to be launched. The penalty can be imposed for failure to
comply with the directions of the Food Safety Officer under
Section 55 of the FSS Act and even Section 59 of FSS Act would
get attracted if any person who, whether by himself or by any
other person on his behalf, manufactures for sale or stores or sells
or distributes or imports any article of food for human
consumption which is unsafe and the penalty is then prescribed
depending upon the nature of the injury. Section 59 of the FSS
Act which prescribed punishment for unsafe food reads thus:
“59. Punishment for unsafe food.– Any
person who, whether by himself or by any other
person on his behalf, manufactures for sale or
stores or sells or distributes or imports any article
of food for human consumption which is unsafe,
shall be punishable,–
(i) where such failure or
contravention does not result in injury, with
imprisonment for a term which may extend to six
months and also with fine which may extend to
one lakh rupees;
(ii) where such failure or
contravention results in a non-grievous injury,
with imprisonment for a term which may extend
to one year and also with fine which may extend
to three lakh rupees;
(iii) where such failure or
contravention results in a grievous injury, with
imprisonment for a term which may extend to six
years and also with fine which may extend to five
lakh rupees;
(iv) where such failure or
contravention results in death, with
imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life and also with fine which
shall not be less than ten lakh rupees.”
It can thus be seen that sale, storage of any food which is
unsafe for human consumption if it results in grievous injury is
punishable under clause (iii) of Section 59 of the FSS Act if it
results in death is punishable under clause (iv) of Section 59 of
the FSS Act and the punishment may extent under clause (iv) to
imprisonment for life and a heavy fine not less than ten lakhs of
rupees.
On perusal of the entire scheme of FSS Act, it would
emerge that it is a self contained enactment taking care of such
acts or conducts dealing with unsafe food articles and such acts
are liable for penalty in the form of fine or imprisonment as
prescribed.
14. In the present case, the FIR registered against the
Petitioners invoke the provisions of the FSS Act and the
Petitioners are charged with Section 59 which prescribes
punishment for indulging in unsafe food either by manufacturing
it for sale, storage or selling or distributing or importing any such
articles with knowledge that it is unsafe. Mr. Ponda has not
argued to the effect that the Petitioners cannot be charged under
the relevant provisions of the FSS Act. His objection is only to
the invocation and application of Sections 328 and 188 of the
IPC.
15. On perusal of the decision of the Apex Court in the case of
Sayyed Hassan Sayyed Subhan (supra), the Apex Court has clearly
held that non compliance of the prohibitory order which
prohibited transportation and sale of Gutka and Pan Masala
would entail a prosecution under Section 55 of the FSS Act but it
has been held that the provisions of IPC can also be invoked and
applied. The Apex Court did not find favour with the findings of
the High Court which had held that the non compliance of the
notification issued by the Food Safety Commissioner can be
penalized only by imposing fine mentioned in Section 55 and no
complaint under the IPC could have been preferred by the Food
Security Officer for violation of the prohibitory order. Whiel
setting aside the said finding, Their Lordships of the Apex Court
held that the High Court was wrong in holding that the action
can be initiated against the defaulters only under Section 55 of
the FSS Act or under Section 68 of FSS Act for adjudication.
The following observations of the Apex Court need a noting.
“7. There is no bar to a trial or conviction of
an offender under two different enactments, but
the bar is only to the punishment of the offender
twice for the offence. Where an act or an omission
constitutes an offence under two enactments, the
offender may be prosecuted and punished under
either or both enactments but shall not be liable to
be punished twice for the same offence. The same
set of facts, in conceivable cases, can constitute
offences under two different laws. An act or an
omission can amount to and constitute an offence
under the Indian Penal Code and at the same
time, an offence under any other law. The High
Court ought to have taken note of Section 26 of
the General Clauses Act, 1897 which reads as
follows:
“Provisions as to offences punishable
under two or more enactments-Where
an act or omission constitutes an
offence under two or more enactments,
then the offender shall be liable to be
prosecuted and punished under either
or any of those enactments, but shall
not be liable to be punished twice for
the same offence.”
8. In Hat Singh's case this Court discussed the
doctrine of double jeopardy and Section 26 of the
General Clauses Act to observe that prosecution
under two different Acts is permissible if the
ingredients of the provisions are satisfied on the
same facts. While considering a dispute about the
prosecution of the Respondent therein for
offences under the Mines and Minerals
(Development and Regulation) Act 1957 and
Indian Penal Code, this Court in State (NCT of
Delhi) v. Sanjay held that there is no bar in
prosecuting persons under the Penal Code where
the offences committed by persons are penal and
cognizable offences. A perusal of the provisions of
the FSS Act would make it clear that there is no
bar for prosecution under the Indian Penal Code
merely because the provisions in the FSS Act
prescribe penalties. We, therefore, set aside the
finding of the High Court on the first point.”
16. After making the aforesaid observations, the point as to
whether the offences punishable under Sections 188, 272, 273
and 328 of the IPC have been made out or not, the matter was
remanded to the High Court to be decided afresh by permitting
both the sides to raise all their contentions. The Aurangabad
Bench of this Court proceeded to deal with the said arguments on
the applicability of the relevant provisions of the IPC in the case
of Vasim Shaikh (supra).
Before we go to the said judgment, it would be apposite for
us to reproduce Section 328 of the IPC which 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.”
17. The Apex Court had an occasion to deal with Section 328
of the IPC in case of Joseph Kurian Philip Jose (supra). The
criminal appeals placed before the Apex Court arose out of a
phase of sporadic incidents referred to as "Punalur Liquor
Tragedy" where certain persons died and others received injuries
due to consumption of poisonous adulterated arrack, ethyl
alcohol adulterated with methyl alcohol. Cases under Sections
272 and 328 of the IPC and Section 57(a) of the Kerala Abkari
Act were registered. On recording a finding of guilt against A-1
and A-4, the Sessions Court imposed sentence. The remaining
accused were found guilty of offences punishable under the
Abkari Act and were imposed nominal sentences of fine only.
The High Court confirmed the conviction and sentence of A-1
and conviction of A-4 came to be set aside and he was convicted
under Section 109 for abetting the offences punishable under
Sections 272 and 328 of the IPC. In the backdrop of these facts,
the Apex Court was called upon to decide the applicability of
Sections 272 and 328 of the IPC against the said Accused.
Adulteration of liquor is prohibited under Section 57 of the
Abkari Act to a licensed vendor or manufacturer. After making a
reference to the provisions of Section 328 of the IPC, the Apex
Court observed thus:
“In order to prove offence under Section 328 the
prosecution is required to prove that the substance
in question was a poison, or any stupefying,
intoxicating or unwholesome drug etc, that the
accused administered the substance to the
complainant or caused the complainant to take
such substance, that he did so with intent to cause
hurt or knowing it to be likely that he would
thereby cause hurt, or with the intention to
commit or facilitate the commission of an offence.
It is, therefore, essential for the prosecution to
prove that the accused was directly responsible for
administering poison etc. or causing it to be taken
by any person, through another. In other words,
the accused may accomplish the act by himself or
by means of another. In either situation direct,
reliable and cogent evidence is necessary. Now on
that basis it has to be seen whether A-1 had any
role to play in directly administering to or causing
to be taken the poisonous liquor by Sreedharan
Pillai deceased, who had purchased and consumed
liquor from a retail shop, with intent to cause hurt
to him or knowing it to be likely that it would
cause hurt to him. This has to be solved remaining
cognizant that Sections 272 and 328 are separate
offences described in the Indian Penal Code.”
11. As it appears both the findings of the Trial
Judge as also by the High Court are somewhat
vague and confusing. The Trial Court observed, as
is evident from the emphasised portion, that it
cannot be said that the accused or any of them
knew that arrack mixed with small quantity of
methyl alcohol (2.64% as found by the chemical
analyst) was likely to cause death or serious bodily
injury that is likely to cause death. On this finding
applicability of Section 302 or even that of
Section 304 I.P.C. has been ruled out. This
finding on the fact situation is open to doubt. If
the finding be correct that the accused did not
have guilty knowledge of causing death or of
likelihood of causing death or of serious bodily
injury likely to cause death, how could the guilty
knowledge stop in that slide or grading not
coming down to take within its arms hurt also.
The act of the accused in adulterating liquor per
se, as the law then stood sans amendments, would
not attract the provision of Section 328 of I.P.C.
unless there is positive evidence that A-1
administered the poisoned liquor directly or by
Sreedharan, deceased indirectly caused it to be
taken by Sreedharan indirectly with the necessary
intent and mens rea. This view of the learned
Trial Judge as confirmed by the High Court does
not appear to us to be sound in the back drop of
the death actually occurring. But since it has taken
that view it cannot stop short of hurt and so must
slip down to a fall downright. Important links in
the prosecution case on this particular remain
otherwise missing. A-1 would thus have to be
acquitted of the charge under Section 328 IPC in
carrying out the findings of the High Court to
their logical end.”
18. The said observations are accordant in the backdrop of the
facts of the case which we are dealing. It is held that in order to
prove an offence under Section 328 of the IPC, it is essential for
the prosecution to prove that the accused was directly responsible
for administering poison etc. or causing it to be taken by any
person, through another and it is further clarified that the accused
may accomplish the act by himself or by means of another and in
either of these situations direct, reliable and cogent evidence is
necessary and in the backdrop of this proposition the Apex Court
examined whether A-1 had any role to play in directly
administering to or causing to be taken the poisonous liquor by
the deceased, who had purchased and consumed liquor from a
retail shop.
The conviction of A-1 under Section 328 of the IPC was set
aside since the prosecution was not been able to prove that it was
he who administered the said liquor to the deceased or he caused
it to be consumed by the deceased though the case of the
prosecution was that the liquor was sold out from the Punalur
Depot where from the adulterated sample was taken. The
adulterated liquor was sold out at the said Depot by A-1 and,
therefore, his conviction under the Abkari Act came to be
maintained.
19. This binding precedent has clearly missed the attention by
the Division Bench of this High Court while deciding the case on
remand from the Apex Court. In case of Vasim Shaikh in dealing
with an application under Section 482 of Cr.P.C. for quashing of
FIR which came to be registered when huge quantity of Pan
Masala and scented tobacco were seized on search of the house of
one Khurshida Hamid Shaikh, the Division Bench while taking
note of the case of prosecution that the accused did not produce
bills of purchase nor supply any information as to from where he
has brought these goods and after noting that the Pan Masala and
Gutka contained harmful contents which are possible for causing
of disease like cancer, recorded a finding to the following effect.
“5. It is not disputed that in Maharashtra,
there is prohibition to manufacture, possess and
on sale of aforesaid food articles and the
possession or sale or manufacture is made
punishable under the Act. The relevant
provisions of this Enactment 26(2)(1), 3(1)(ZZ),
27(3)(E) R/w. 59 and 27(3)(d) are also
mentioned by the Food Safety Officer. There
was no question of licence of any kind with the
applicants and from the huge quantity which is
recovered, it can be said that they had the
intention to sell these articles as food articles.”
The subsequent judgments follow the same path and are
relied upon by the learned Public Prosecutor to submit that the
issue as to the applicability of Section 328 of the IPC in case of
the Petitioners is already put to rest by the aofresaid judgments.
20. We must candidly express that the Division Bench has not
taken into consideration the judgment of the Apex Court in the
case of Joseph Kurian Philip Jose (supra) and, therefore, we do
not felt bound by the same as it is per incuriam. Apart from this,
it did not go to the root of the issue as to whether offence under
Section 328 of the IPC is made out.
21. Section 328 of the IPC finds place in Chapter XVI under
caption “Causing hurt by means of poison, etc”. The offence
under Section 328 IPC is cognizable, non-bailable and noncompoundable.
We can analyse the said section by dissecting it
into two parts, first part viz. “whoever administers to” and second
part “or causes to be taken by any person”. The first part uses the
terminology ‘Administers to’. The Cambridge Dictionary defines
the term ‘Administer’ to mean to control the operation or
arrangement of something and its colloquial meaning is to cause
someone to receive something. The Collins Dictionary defines it
to mean ‘to direct or control or to put into execution; dispense’.
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. The word ‘causes’
involves some degree of dominance or, control or some express
or positive mandate and necessarily induces an element of some
active operation aimed at a result. The word ‘cause’ which
denotes to make something happen is a verb whereas the word
‘causing’ is present participle of the word ‘cause’.
The judgment of the Queens Bench in the case of Shave
(supra) relied upon by Mr. Ponda aptly depicts an illustration of
‘causing’ in the backdrop of the provisions contained in the Motor
Vehicles (Construction and Use) Regulations, 1951. The
pronouncement came in the backdrop when an owner of a motor
vehicle left it at the respondent’s garage to have the brakes reshoed
and after the work was completed, the vehicle was
delivered to the owner, who drove the respondent back to garage
so as to test the brakes himself. Later on, the same day, while the
owner was driving the vehicle, one of the front wheels came off
and injured a passer-by and the accident occurred since the nuts
were not properly fastened by the respondent’s workmen while
carrying out the works of the brakes. The respondent was
charged with ‘unlawfully causing’ a vehicle to be used on a road in
such condition that danger was caused to a person on the road
contrary to the Motor Vehicles (Construction and Use)
Regulations, 1951. The Queens Bench in these facts held that
the word ‘causes’ in the Regulations of 1951 involved some degree
of dominance or control over the person who used the vehicle, or
some express or positive mandate to him, by or from the person
alleged to have caused the user after the respondent had delivered
the vehicle back to the owner he ceased to have any control over
it; and, therefore, he had not caused it to be used on a road within
the meaning of Regulation 101. Lord Goddard, C.J., by referring
to the Regulation penned his verdict in the following manner ‘if
any person uses or causes or permits to be used on any road a
motor vehicle or trailer in contravention of or fails to comply with
any of the preceding regulations contained in Part III of these
regulations, he shall for each offence will be liable to a fine’ held
that the expressions ‘causes or permits’ in contrast or juxtaposition
‘permit’ means giving leave and licence to somebody to use the
vehicle, and ‘causes’ involves a person, who has authority to do so,
ordering or directing another person to use it”. The distinction is
succinctly brought out in the following word of Lord Goddard,
C.J. - “If I allow a friend of mine to use my motor car, I am
permitting him to use it. If I tell my chauffeur to bring my car
round and drive me to the courts, I am causing the car to be used.
There may be a civil liability to indemnify the owner if he is made
liable, …. but if the owner is sued, the garage proprietor would
have an action brought against him and part of the damage for
not doing the work properly would be the damages the owner is
caused to pay to the person injured. But, from the point of view
of the criminal law, I do not think the regulation is wide enough
to catch this case.” The word ‘causes’ was therefore interpreted to
be something involving control or dominance or compulsion.
22. Reliance by Mr. Ponda on another Queens Bench judgment
in Price (supra) which also drive home the succinct distinction
between the words ‘permitting’ and ‘causing’ in the following
words of Lord Widgery C.J. “It is important to note that the
distinction between ‘causing’ and ‘knowingly permitting’ was very
much in their Lordship’s minds. It seems to me that the
overwhelming opinion of their Lordships in that case was, that
whatever else ‘causing’ might or might not involve, it did involve
some active operation as opposed to mere tacit standing by and
looking on. That is made good first of all by Lord Wilberforce,
who said “The subsection evidently contemplates to things –
causing, which must involve some active operation or chain of
operations involving as the result the pollution of the stream;
knowingly permitting, which involves a failure to prevent the
pollution, which failure, however, must be accompanied by
knowledge.”
The term ‘causes’ thus demand some action – some
involvement and when we refer this term in Section 328, the
upshot is that Section 328 of the IPC gets attracted in two
possibilities one of direct administration of anything with an
intent to cause hurt or indirect causation of a thing to be taken by
any person with an intent to cause hurt. It is only in the presence
of two aforesaid ingredients, the section gets attracted and in the
absence of any ‘administration’ to another or the accused ‘causing’
any person to take the substance, person cannot be made liable
for an offence under Section 328 of the IPC. The act of storage
which is alleged against the Petitioners fall short of the ingredients
of Section 328 of the IPC. Mere storage without any further
action and on a contemplation that it would be sold in the
market, brought by a person from the market and consumed by
him is too far fetched consequence of an act of ‘administering’ or
‘causing to be taken’.
Mere storage cannot even be construed as an attempt to
commit an offence under Section 328 of the IPC since an act
would become an attempt only on a positive act being committed
by a person which would have resulted in commission of offence.
However, the unforeseen act beyond the control of the accused,
can only be an attempt. Mr. Ponda has rightly relied upon the
judgment in the case of Malkiat Singh (supra) to drive succinct
distinction between the preparation and attempt to commit a
crime where the Apex Court has held that only preparation is not
an attempt and the test for determining whether the act
constituted an attempt or preparation is whether the overt acts
already done are such that if the offender changes his mind and
does not proceed further in its progress, the acts already done
would be completely harmless. The transportation of paddy in
violation of Punjab Paddy (Export Control) Order, 1959 and
when a truck was seized in Samalkha, Punjab Boundary 32 miles
away from Delhi, the Apex Court held that there was no attempt
on the part of the Appellant to commit the offence of export. It
was merely preparation and the preparation for committing an
offence is distinct from attempt to commit it. The preparation,
according to the Apex Court would consists in devising or
arranging the means or measures necessary for the commission of
the offence whereas an attempt is a direct movement towards the
commission after the preparation was made. The storage of the
prohibited substance could not therefore be brought within the
purview of an attempt to commit an offence under Section 328
and nevertheless it do not attract Section 328 of the IPC.
23. The argument as regards Section 188 of the IPC advanced
by Mr. Ponda is also required to be considered with reference to
the use of the phraseology employed in the said section. Section
188 of the IPC reads thus:
“188. Disobedience to order duly promulgated
by public servant.—Whoever, knowing that, by
an order promulgated by a public servant lawfully
empowered to promulgate such order, he is
directed to abstain from a certain act, or to take
certain order with certain property in his
possession or under his management, disobeys
such direction, shall, if such disobedience causes
or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury,
to any person lawfully employed, be punished
with simple imprisonment for a term which may
extend to one month or with fine which may
extend to two hundred rupees, or with both; and
if such disobedience causes or trends to cause
danger to human life, health or safety, or causes or
tends to cause a riot or affray, 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. Explanation.—It is not necessary that
the offender should intend to produce harm, or
contemplate his disobedience as likely to produce
harm. It is sufficient that he knows of the order
which he disobeys, and that his disobedience
produces, or is likely to produce, harm.
Illustration An order is promulgated by a public
servant lawfully empowered to promulgate such
order, directing that a religious procession shall
not pass down a certain street. A knowingly
disobeys the order, and thereby causes danger of
riot. A has committed the offence defined in this
section.”
24. A close analysis of the said section would reveal that
whoever disobeys an order promulgated by a public servant
directing to abstain from certain acts, or to take certain orders
with certain property in his possession, disobeys such direction,
would attract Section 188 of the IPC if such disobedience causes
or tends to cause obstruction, annoyance or injury, or risk of it, to
any person lawfully employed and if such disobedience causes or
tends to cause danger to human life, health or safety shall be
punished under the said section. The keywords being ‘causes or
tends to cause danger to human life, health or safety ’. The
disobedience of the public order apart from attracting a penalty
under Section 55 of the FSS Act would, in view of the decision of
the Apex Court in Sayyed Hussain (supra), attract Section 188 of
the IPC but it would have to be examined whether it falls within
the mischief sought to be penalised by the said section. 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. The section do not use the term
‘likely to cause’, conveying that there has to be a positive evidence
of causing or tends to cause danger to human life and in absence,
Section 188 is not attracted. It is not in doubt that the tobacco
and its products are dangerous to human life and safety.
However, mere possession or storage cannot fall within the
purview of ‘Danger’ contemplated under the said section. 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. The
Apex Court in Joseph Kurian Philip Jose (supra), has succinctly
drawn a distinction in the two terminologies applied by Section
328 of the IPC in the form of direct and indirect methods and the
said judgment continues to be an authoritative and binding
precedent till date. In the light of the aforesaid position emerging
from the submissions advanced before us, we do not intend to
continue the prosecution against the Petitioners as it would
merely amount to an abuse of process of law and the prosecution
of the Petitioners under Sections 328 and 188 of the IPC,
therefore, cannot continue. We do not make any comment on the
prosecution of the Petitioners under the FSS Act and we are not
inclined to show any indulgence to the Petitioners on that count.
The Respondent-Authorities are permitted to prosecute the
Petitioners under the provisions of the said enactment.
Resultantly, we quash and set aside the FIR bearing No.87
of 2019 dated 2nd March 2019 registered against the Petitioners
only to the extent it registered offence against the Petitioners
under Section 328 and 188 of the IPC and we restrain the
Respondents from initiating any action against the aforesaid
provisions under the IPC.
(SMT. BHARATI DANGRE, J.) (RANJIT MORE, J.)
No comments:
Post a Comment