Wednesday 26 January 2022

Whether police can file chargesheet against accused under Penal Code if he is found in possession of Guthkha?

 There is no force in both the aforesaid submissions made for the applicant. This point was considered by the Apex Court in Criminal Application No. 1195 of 2018, ( The State of Maharashtra and others Vs. Sayyed Hasan and others) decided on 20.09.2018. The Apex Court has considered various provision of aforesaid special enactment and the  Apex Court has laid down that when offence punishable under Indian Penal Code is committed and it is cognizable in nature, crime can be registered. The provision of Section 188 of the Indian Penal Code was considered, and it is laid down by the Apex Court that when there is prohibitory order and there is breach of the provision, Section 188 of the Indian Penal Code can be used. The relevant provisions like Section 27 of the General Clauses Act are considered by the Apex Court and it is observed that there is no specific bar for registration of the crime in the scheme of the aforesaid special enactment. This point was considered by this Court also in Writ Petition No. 3398 of 2011 ( Sanket Food Products Private Limited Vs. Union of Indian and others) with connected matters. In that matter also Goa Gutkha was involved and this Court had considered the same challenges raised in the said matter. In that case manufacturer was also involved. In the present matter the vendor the person who was in found in possession of prohibited food articles is involved. Thus, the provision of Section 273 of the Indian Penal Code involving the Food substances which is dangerous to the life can be used in the present matter. The sample can be tested and ordinarily there is Magnesium Carbonate and there are also heavy metals in such substance. This Court has considered the provision of the previous Act, The Food Adulteration Act and Rules framed there under and there is not much different in between those provisions and the provisions of new enactment. It is laid down by this Court that Guthkha is food and if it is sold ( as eatable) and the provisions of the Indian Penal Code like section 272 and 328 of the Indian Penal Code are applicable, the crime can be registered. In the present matter also this Court hold that these provisions are squarely applicable and so the FIR cannot be quashed.  {Para 5}

Bombay High Court
Manik Dhondiba More vs The State Of Maharashtra And ... on 3 October, 2018

Bench: T.V. Nalawade
Read full Judgment here: Click here
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