Law Web: Can a person selling Gutka or Pan masala prosecuted for an offence U/S 328 of IPC be released on anticipatory bail?

Section 328 of

IPC is attracted where the substance in question is poison or

any stupefying, intoxicating or unwholesome drug or other thing

is administered or caused to be taken by any person with an

intent to cause hurt or with an intent to commit or to facilitate

the commission of an offence or intent it to be likely that he will

thereby cause hurt, becomes punishable under the provision.

The first part of Section 328 contemplates a direct involvement

of person and second part suggest any indirect method for

causing one of the substances to be taken by any person.

Expression “causing” involves some action. “Causation” means

the action of causing something. “Intervening causation” means

an event that comes between the initial event in sequence and

the end result. Manufacturing “unsafe food” is initial event.

Causing its movement by transporting or storing it with an

intent to reach to end user are the events in sequence caused

by active participation of intermediate agencies or persons.

Thus, all such events involving active participation of persons

at each stage, is relevant. A person at end is a ‘consumer’ to

whom “unsafe food” is sold, knowing well that its consummation

would cause hurt to him. Persons involved in manufacturing

“unsafe food”, causing its movement to market or storing it with

intent to sell it, either himself or through other persons, while

prohibitory ‘order’ promulgated under Section 30 of the Food

and Safety Act is in force and such all persons, under express

or implied authority either individually or otherwise, “causes

person to take” unsafe food with intent to cause hurt. It is

indirect causation. It was further observed that the

manufacturing unsafe food articles, moving these goods from

manufacturing unit to market for its sale is an event and that

any action in chain of circumstances which foreseeably leads to

and facilitates the sale of food articles is further event may be

said to be a cause of that event to bring the action within the

expression’ “causes to be taken by a person”, any poison with

intent to cause hurt to such person, in Section 328 of the IPC.

The offence under Section 328 of IPC, essentially is not causing

someone else to do prohibited act but ‘causing’ a person to

consume food articles knowing well that its consumption would

hurt such person. Even otherwise, where the investigation is at

initial stage, and the relevant material is yet to be collected; it

may not be appropriate to hold that FIR does not make out an

offence under Section 328 of IPC. The said application was

rejected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO.483 OF 2021

Mohammed Ali Raheman @ MohammedAli Abdul Raheman Shaikh Vs. The State Of Maharashtra

CORAM : PRAKASH D. NAIK, J.

DATE : 24th MARCH, 2021

1. This is an application for pre-arrest bail under Section

438 of Code of Criminal Procedure (for short “Cr.P.C.”) in

connection with C.R. No.I-26 of 2021 registered with Narpoli

Police Station for the offences punishable under Sections 188,

272, 273 and 328 of Indian Penal Code (for short “IPC”) and

Section 26(2) (iv), Section 30(2), (a) of Food Safety and Standards

Act, 2006.

2. The case of the prosecution is that on 15.01.2021

prohibited goods were unloaded from the vehicle in Gala No.2 at

Bhiwandi District Thane. The complainant/Food Safety Officer

visited the said place. Assistant Commissioner of Food was

present. Inquiry was made with the driver of the vehicle. Search

of vehicle and Gala was conducted. Prohibited food items such

as H2 premium tobacco 200 packets valued Rs.1,96,000/- and

hot premium pan masala 200 packets valued Rs.3,92,000/-

were found in the vehicle. Prohibited food items were also found

in the Gala No.2 viz. Dilbag plus pan masala/300 packets

valued Rs.39,74,400/-, Raj Niwas pan masala/200 packets

valued Rs.11,26,400/-, A plus chewing Tobacco/1000 packets

valued Rs.21,60,000/-, Raj Niwas pan masala/200 packets

valued Rs.08,71,200/-, Goa 1000 (red)/324 packets valued

Rs.09,72,000/-, Goa Gutkha (green)/324 packets valued

Rs.19,44,000/- , Premium NP No.01 Jafrani Jarda/800 packets

valued Rs.4,48,000/- and Manikchand Gutkha/200 boxes

valued Rs.54,00,000/-. The total value of all the items worth Rs.

1,74,84,000/-. Articles were transported and stored in the

Gala. Samples were obtained. Goods were seized. On further

inquiry with the driver it was revealed that the vehicle belonged

to Jagmohan Malhotra. He also disclosed that the goods were

transported by transporter Hemkund Roadlines, New Delhi to

Mr.Munna Ali. First Information Report (for short “FIR”) was

registered on 16.01.2021.

3. The applicant preferred an application for anticipatory bail

before the Sessions Court at Thane. The said application was

rejected vide order dated 05.02.2021. While rejecting the said

application, it was observed that huge quantity of prohibited

items was seized. Arrested accused Amin Khan disclosed the

name of the applicant and informed that as per the directions

and orders given by the applicant he carried the goods from

Hariyana to Bhiwandi. From the CDR of applicant and the

arrested accused Amin Khan, it appear that, throughout the

journey Amin Khan was in contact with the applicant through

mobile phone. To collect further information as to who procured

such contraband articles and how they carried contraband

articles to Bhiwandi, custodial interrogation of the applicant is

necessary.

4. Learned counsel for the applicant submitted that there is

no evidence showing involvement of the applicant in the offence.

The main submission of learned counsel for the applicant is that

all the offences, except the offence under Section 328 of IPC, are

bailable. Section 328 of IPC is not attracted. The case of the

prosecution is that there was storage of prohibited items with

huge quantity to sell them. There is no allegations of

consumption of prohibited items. To constitute the offence

under Section 328 of IPC, the prosecution required to establish

that the substance in question is 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.

5. Reliance is placed on the decision of the Supreme Court in

the case of Joseph Kurian Philip Jose Vs. State of Kerala,

AIR 1995 SC 4, judgments of this Court in the case of Anand

Ramdhani Chaurasia & Anr. Vs. State of Maharashtra & Ors.

delivered in Criminal Writ Petition No.3607 of 2019, judgment

in the case of Ganesh Pandurang Jadhao & Ors. Vs. State of

Maharashtra & Ors. delivered in Criminal Writ Petition No.1027

of 2015, and order passed in the case of Rajesh Vijay Mishra

Vs. State of Maharashtra delivered in Anticipatory Bail

Application No. 464 of 2020.

6. It is submitted that the ratio and interpretation laid down

by the Apex Court in the decision of Joseph Kurian Philip Jose

(supra) is the law of the land, which is binding. Article 141 of

the Constitution of India lays down that any judgment/

interpretation of the Supreme Court becomes law of the land

and is binding on all the Courts. Reliance is placed on the

decision of the Supreme Court in the case of South-Central

Railway Employees Co-Op. Credit Society Employees Union

Vs. B. Yashodabai (2015) 2 SCC 727. It is submitted that the

law laid down in the case of Joseph Kurian Philip Jose (supra)

has not been overruled by any subsequent judgment. The Apex

Court in the case of C.N. Rudramurthy Vs. K. Barkathullu

Khan (JT 1998 7 SC 110) has held that it is not open to the High

Court to take any other view once Supreme Court has taken a

view. In the same context learned counsel for the applicant also

relied upon the decision of the Supreme Court in the case of

Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia (2017)

10 SCC 706.

7. It is submitted that the ratio and interpretation laid down

in the judgment of Anand Ramdhani Chaurasia (supra) and

Ganesh Jadhao (supra) is good law and is binding precedent.

Both the judgments were delivered by the Division Bench of this

Court and it was not open to this Court to decide the correctness

or express a view otherwise. Reliance is placed on the decision

of the Supreme Court in the case of Union of India Vs.

Raghubir Singh (1989) 2 SCC 754.

8. Although, the decision in the case of Anand Ramdhani

Chaurasia (supra) is stayed by the Apex Court, the decision still

holds the field and required to be followed as a binding

precedent. It is submitted that Apex Court in the case of Shree

Chamundi Mopeds Ltd. Vs. Church or South India Trust

Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1,

has observed that the order which has been stayed only cease

to operate from the passing of stay order and would not wipe

out its existence which continues to exist in law. The aforesaid

decision has been clarified by this Court in the case of Chhaya

and others Vs. The Committee for Scrutiny and Verification

of Tribe Claims & Ors. (2018) 6 Bom CR 492, in which it was

observed that the stay by the Supreme Court does not mean

that such a law laid down in the judgment ceases to apply. The

effect of order of stay in pending appeal before the Apex Court

does not amount to any declaration of law but is only upon the

parties to the said proceedings and such interim order does not

destroy the binding effects of the judgment of the High Court as

a precedent because while granting interim order the Apex

Court had no occasion to lay down any proposition of law

consistence with the one declared by High Court.

9. Learned counsel for the applicant also relied upon the

decision in the case of Government of Andhra Pradesh & Ors.

Vs. P. Gautam Kumar & Ors. (2012) 6 ALD 458, decided by

High Court of Andhra Pradesh and decision in the case of

Palaniswamy & Ors. Vs. State of Andhra Pradesh & Ors.

(2018) 3 ALD 181. It is further submitted that this Court in the

case of Rajesh Vijay Mishra Vs. State of Maharashtra (supra)

had allowed the application for anticipatory bail for similar

offence vide order dated 17.08.2020 by relying upon the

decision of this Court in the case of Anand Ramdhani

Chaurasia Vs. State of Maharashtra (supra).

10. Learned counsel further submitted that the judgment of

this Court in the case of Vinod Ramnath Gupta Vs. State of

Maharashtra delivered in Anticipatory Bail Stamp No.2451 of

2020 is per incuriam. It is in contradiction to the judgment of

the Supreme Court in the case of Joseph Kurian Philip Jose

(supra). The judgment in the case of Vinod Ramnath Gupta

(supra) does not differentiate or lay down any reasons for not

dealing with the judgment in the case of Joseph Kurian Philip

Jose (supra), Ganesh Jadhao (supra) and Rajesh Mishra

(supra). The judgment in the case of Vinod Gupta (supra) is per

incuriam and does not follow mandate of Article 141 as well as

ratio laid down in Shree Chamundi Mopeds Ltd.(supra) and

other decisions referred to hereinabove. In the decision of this

Court in the case of Sagar Sadashiv Kore Vs. State of

Maharashtra delivered in Anticipatory Bail Application No. 313

of 2021, it is observed that judgment of this Court in the case of

Vasim Shaikh Vs. State of Maharashtra delivered in Criminal

Application No.4353 of 2016 stands revived. However, the Court

has not considered that the judgment of Vasim Shaikh (supra)

does not refer/rely upon the interpretation laid down by the

Apex Court in the case of Joseph Kurian Philip Jose (supra). The

decision in the case of Sagar Kore is per incuriam. It is contrary

to the law laid down in the case of Shree Chamundi Mopeds Ltd.

(supra) and Sandeep Bafna Vs. State of Maharashtra AIR

(2014) SC 1745. Reliance is also placed on the decision of this

Court in the case of Deepak Satyavan Kudalkar Vs. State of

Maharashtra delivered in Criminal Bail Application No. 197 of

2020.

11. Learned APP submitted that the offence is of serious

nature. Huge quantity of prohibited contraband was recovered.

The prohibited items were injurious to health. The involvement

of the applicant is disclosed during the investigation. Section

328 of IPC is attracted in this Case. He relied upon the decision

in the case of Vinod Ramnath Gupta (supra) and Sagar Kore

(supra). In the light of the observations of this Court in the said

decisions, this application may be rejected.

12. On perusal of the FIR, it is apparent that huge quantity for

prohibited items was seized. the FIR was registered for aforesaid

offences. The investigating agency has collected evidence which

discloses the complicity of the applicant in the crime.

13. The primary contention of the learned counsel for the

applicant is that Section 328 of IPC is not attracted. He has

relied upon the decisions referred to hereinabove. It is

contended that the law laid down by the Apex Court in the case

of Joseph Kurian Philip Jose (supra) is binding on all the High

Courts.

14. The Apex Court in the case of Joseph Kurian (supra) was

adjudicating criminal appeals arising out of judgment of the

High Court delivered in appeals against the conviction. The

accused therein were convicted for the offence under Sections

272 and 328 of IPC. They were convicted for the offences

punishable under Section 55 (a) and 55 (i) of the Abkari Act and

appellants were sentenced to imprisonment. Apparently, trial

was held and evidence was recorded. Trial Court appreciated the

evidence and convicted the accused. The judgment of the High

Court confirming the order of conviction was challenged before

the Apex Court. The factual matrix of the said decision relates

to the consumption of poisonous arrack, ethyl alcohol

adulterated with methyl alcohol. Some of the victims had

sustained injuries and certain persons died. The Apex Court

has observed that in order to prove offence under Section 328

of IPC, 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 there by 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. Direct, reliable and cogent

evidence is necessary. The Court considered the question

whether the appellant No.1 had any role to play in directly

administering poison or causing to be taken the poisonous

liquor by the deceased, who had purchased and consumed

liquor from retail shop, with intent to cause hurt to him or

knowing it to be likely that it would cause hurt to him. The Court

delivered the decision in the fact of the case and while

appreciating the evidence adduced before Trial Court.

15. Criminal Writ Petition No.1027 of 2015 preferred by

Ganesh Pandurang Jadhao (supra) and other Writ Petitions and

Criminal Applications were disposed of by Division Bench of this

Court, (Aurangabad Bench) vide Judgment and order dated 4th

March 2016 (Coram:- A.V. Nirgude and I.K. Jain, JJ.). The

petitions/applications were allowed. The action initiated

against petitioners/applicants was declared illegal and

complaints/reports were quashed. The said Judgment and

order was challenged by State of Maharashtra before Apex

Court. By order dated 20.09.2018, Apex Court set aside the

finding of High Court and matters were remitted back to High

Court for considering contentions afresh which were not argued

before High Court.

16. The Division Bench of this Court (Aurangabad Bench) in

the case of Vasim Jamil Shaikh Vs. State of Maharashtra

(Coram:- T. V. Nalawade and Smt. Vibha Kankanwadi, JJ.)

(Criminal Application No.4353 of 2016 with Criminal

Application No.4354 of 2016) held that the contention that the

provision of Section 328 of IPC cannot be used in that case is

not acceptable. This provision shows that, whoever administers

to or causes to be taken by any person which is likely to cause

hurt then he can be punished under provision of Section 328 of

IPC. Specific person to whom the thing is administered or the

specific incident in which it was caused to be taken need not be

mentioned in the case like present one. The persons who are

indulging into illegal activity like possessing and selling the

substances which are likely to cause hurt are covered by the

provisions of Section 328 of IPC. The contention of applicants

in the said proceedings was that, even if it is presumed that the

applicants were found in possession of prohibited articles and

they were in huge quantity, the provisions of Section 272, 273

and 328 of IPC cannot be used. It cannot be inferred on the

basis of prohibition for manufacture, possession and sale of

articles, they are injurious to health as mentioned in the above

provisions of IPC. Reliance was placed on observations made in

Judgment dated 04.03.2016 delivered in Criminal Writ Petition

No.1027 of 2015 (Ganesh Pandurang Jadhao and Anr. Vs. State

of Maharashtra and Ors.) which was set aside subsequently by

Apex Court. The prosecution relied upon order dated

15.09.2012 passed by this Court in Writ Petition No.1631 of

2012 (M/s. Dhariwal Industries Ltd. Vs. State of

Maharashtra. The said decision was not referred in the case of

Ganesh Pandurang Jadhao (supra). The Court referred to

decision of this Court in the case of Sanket Foods Products

Pvt.Ltd. Vs. Union of India dated 23.11.2011 (Writ Petition

No.3398 of 2011). The Court had considered bad effects of the

components of Gutkha, Pan Masala on health. Reference is

made to decision of this Court in Writ Petition No.830 of 2016

(Umrao Singh Vs. State of Maharashtra and Ors.) decided on

10.01.2017. Applicability of Section 328 of IPC was considered.

It was held that, these substances contain nicotine and

magnesium carbonate and they can take life. The Court

considered ingredients of provisions of Section 328 of IPC i.e. (i)

causes to be taken by any person unwholesome drug (ii)

knowing it to be likely that, he will thereby cause hurt. Court

also referred to decision in the case of Zahir Ibrahim Panja and

Ors. Vs. State of Maharashtra (Criminal Application No.4968 of

2016), decided on 16.10.2018, wherein applicability of Sections

273 and 328 of IPC and also provisions of the Act when such

articles were found in possession in Maharashtra. The Court

also referred to decision in the case of State of Maharashtra

and Ors. Vs. Sayyed Hasan and Ors. (Criminal Application

No.1195 of 2018) decided on 20.09.2018. In that decision Court

had considered provisions of Special Enactment, IPC and

Section 26 of General Clauses Act and observed that there is no

Specific bar to register crime under IPC even if provisions of

Special Enactment are attracted. The Court held that ratio in

the case of Ganesh Jadhao (supra) cannot be used in favour of

applicants therein and no relief can be granted to them.

17. This Court in the case of Anand Ramdhani Chaurasia,

(supra) has dealt with the similar issue. The Division Bench of

this Court relied upon the decision of the Apex Court in the case

of Joseph Kurian (supra), it was held that Section 328 of IPC is

not attracted. It was also observed that the Division Bench of

this Court in the case of Vasim Shaikh (supra) has not

considered the judgment of the Apex Court in the case of Joseph

Kurian (supra) and it is per incuriam. The decision of this Court

in the case of Anand Chaurasia was challenged before the Apex

Court vide Special Leave Petition (Criminal) No.8224 of 2020.

On 31.08.2020, the Apex Court passed the following order:-

“Delay condoned.

Issued notice.

Until further orders, there shall be a stay of

operation of the impugned judgment and order

passed by the High Court of Judicature at

Bombay.”

18. Criminal Writ Petition No.1027 of 2015 preferred by

Ganesh Pandurang Jadhao and other connected matters.

Which were remitted for fresh hearing was heard by the Division

Bench (Aurangabad Bench). The said petition was decided vide

order dated 15.10.2020. Court referred to decision of this Court

in the case of Anand Ramdhani Chaurasia and concurred with

the view expressed in the said Judgment and order dated

13.09.2019, on the issue of applicability of Section 328 of IPC.

After pronouncement of judgment, it was pointed out to the

Court that the decision in the case of Anand Chaurasia (supra)

has been challenged before the Apex Court and interim order

has been passed by the Apex Court. Hence, the Division Bench

stayed the said order for a period of six weeks. The said decision

dated 15.10.2020 in the case of Ganesh Jadhao & Ors. (supra)

was challenged before the Apex Court by the State of

Maharashtra. The Apex Court passed the following order on

07.01.2021: -

“Issue Notice.

Until further orders, there shall be a stay of

operation of the impugned judgment(s) and order(s)

passed by the High Court. Tag with SLP (Cri.) Diary

No. 8224/2020”

19. LDVC ABA No.464 of 2020 preferred by Rajesh Vijay

Mishra was allowed vide order dated 17.08.2020. The issue was

Section 328 of IPC is not applicable. The learned Judge relied

on decision in the case of Anand Chaurasia (supra) it was

observed that Division Bench Judgment to which learned Judge

was a member has dealt with ingredients of Section 328 of IPC

and the terms administer and ‘causes’ mere transportation or

possession of the Substances would not attract Section 328 of

IPC unless there is something more than causing a person to

consume substance or directly administering. The decision in

Anand Chaurasia (Supra) was thereafter stayed by Supreme

Court on 31.08.2020.

20. Learned Single Judge of this Court dealt with the issue

about the applicability of Section 328 of IPC in the case of Vinod

Ramnath Gupta (supra). The contention of the applicants in the

said application was that offences punishable under Sections

188, 272 and 273 of IPC are bailable and so far as offence under

Section 328 of the IPC is concerned, the Division Bench of this

Court in the case of Anand Chaurasia (supra) has held that

mere storage of prohibited food articles without any further

action and on contemplation that it would be sold in the market,

brought by a person from the market and consumed by him is

too far fetch consequence of an act of administering or causing

to be taken. The applicants had also relied upon another

judgment of the Division Bench in the case of Ganesh Jadhao &

Ors. (supra). This Court in the aforesaid case of Vinod Gupta

vide order dated 06.11.2020 had taken into consideration the

decisions delivered in the case of Anand Chaurasia (supra) and

Ganesh Jadhao (supra). It was observed that in the case of

Anand Chaurasia, FIR was registered on the basis of complaint

received from Food Safety Officer recording that search of

residence and warehouse of the petitioner resulted in recovery

of Gutkha and Pan Masala and the storage contravened the

notification dated 28.07.2020 issued by the Food Safety

Commissioner. Accused were arrested and released on bail.

Petitioners therein had challenged the action initiated against

them by registering the FIR. The judgment in the case of Anand

Chaurasia (supra) has been stayed by the Apex Court. The

judgment in the case of Ganesh Jadhao (supra) was stayed by

same bench for a period of six weeks. Considerations for

quashing FIR/complaint under Article 226 of the Constitution

of India and under Section 482 of Cr.P.C., being different,

cannot be applied in pre-arrest bail proceeding. Section 328 of