Sunday, 22 May 2022

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

Having been found with the contraband articles, such as, Jarda, Pan Masala, Flavoured Supari, Scented Tobacco and Mava in contravention of the notification No. FSSA/Notification/901/7 dated 19.7.1919 and Notification No. FSSA/Notification/901/7 dated 15.7.2020 issued under Section 30(2)(a) of the Food Safety Standard Act, 2006 (hereinafter referred to as "FSS Act" for sake of brevity) by the Commissioner of Food Safety Maharashtra State, various FIRs under Sections 188, 269, 271, 272, 273, 307, 328, 353 of IPC and Section 59 of the FSS Act, came to be registered.

 In the matter of State of Maharashtra vs. Syed Hasan Syed Subhan MANU/SC/1021/2018 : 2018 AIR (SC) 5348 the Honourable Apex Court has clearly held that the non-compliance of the prohibitory order which prohibits transportation and sale of Ghutka and Pan Masala, would entail a prosecution under Section 55 of the FSS Act, but it has been held that the provisions of the Indian Penal Code 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 under Section 55 of FSS Act and no complaint under the Indian Penal Code could have been preferred by the Food Security Officer for violation of the prohibitory order. While 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 or under Section 68 of the FSS Act, for adjudication.

21. This brings me back to the requisites of Section 328 of IPC. On closer scrutiny of Section 328, it is obvious 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. Simply stating, the accused may achieve and complete the act by himself or by means of another. It is nowhere alleged that the applicants were primarily responsible for administering poison. It is also not the case that applicants had helped by aid of third person or by involving third person, who had authority to do so, caused it (poisonous substance) to be used by others. It would be premature to say that act of storage or transporting, as is alleged against the applicants, should be construed as fulfilling the requisites of Section 328 of IPC. There is need to guard against this hard-headed view, which is canvassed by the learned APP, on a sheer contemplation that the act of applicants would tantamount to an act of "administering" or "causing to be taken". The ratio laid down in the case of Joseph Kurian (supra) is all pervasive qua the cases in hand and applies with full rigour.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Anticipatory Bail Application Nos. 944, 1168, 1183,  of 2021

Decided On: 30.09.2021

 Munjabhau Manchakrao Rokde and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.G. Bisht, J.

Citation: MANU/MH/4640/2021

1. The present set of anticipatory bail applications involve common questions of fact and raise a common question of law i.e. applicability of Section 328 of the IPC. Hence, these applications have been heard together by the consent of the parties and are being disposed of by this common order.

2. Having been found with the contraband articles, such as, Jarda, Pan Masala, Flavoured Supari, Scented Tobacco and Mava in contravention of the notification No. FSSA/Notification/901/7 dated 19.7.1919 and Notification No. FSSA/Notification/901/7 dated 15.7.2020 issued under Section 30(2)(a) of the Food Safety Standard Act, 2006 (hereinafter referred to as "FSS Act" for sake of brevity) by the Commissioner of Food Safety Maharashtra State, various FIRs under Sections 188, 269, 271, 272, 273, 307, 328, 353 of IPC and Section 59 of the FSS Act, came to be registered.


3. Mr. Chapalgaonkar, learned counsel for the applicants has filed written notes of submissions alongwith judgments in support thereof. Similarly, Mr. Narwade, learned APP has also filed the written notes of submission alongwith judgments in support of his submission.


4. At the very outset, it may be noted that the learned counsel for other applicants have adopted in toto the submissions filed by learned Advocate Mr. Chapalgaonkar,


5. The main submissions of learned counsel for the applicants are two fold. The first submission is that, the concerned Police Officer could not have directly registered offence punishable under Section 328 of IPC against all the applicants inasmuch as a procedure is already in existence under the various provisions of the FSS Act and the police ought to have taken recourse to the procedure laid down under those provisions. Secondly, keeping in mind the ingredients of Section 328 of the IPC, there is no allegation that applicants are directly responsible for administering poisonous substance or causing it to be taken by any person through another and this being so, the question of applicability of Section 328 does not arise. For these reasons the applications deserve to be allowed, argued learned counsel for applicants.


6. The learned counsel for applicants have placed their reliance on number of decisions of this Court, which I would be discussing at an appropriate stage.


7. Mr. A.V. Deshmukh, learned APP, on the other hand, vehemently opposed the submissions by contending that the issue of applicability of Section 328 is adequately dealt with by the various judgments of this Court and it has been held that in the similar facts and circumstances, the ingredients of Section 328 are very much applicable. According to learned APP, these applicants are dealing with contraband articles in contravention of the notification duly issued by the Food Commissioner under Section 30(2)(a) of the FSS Act and were found in possession of huge quantity of contraband articles, thereby clearly attracting the applicability of Section 328 of IPC. According to learned APP, the custodial interrogation of the applicants is very much necessary and if custody of the present applicants is not granted, then investigation will be seriously hampered. The learned APP has also placed reliance on various decisions.


8. Keeping in mind the above submissions, following two ponderable questions emerge for consideration and adjudication:-


[I] The concerned police station could not have directly registered offence punishable under Section 328 etc. of IPC without invoking the procedure and provisions of the FSS Act and hence, whether said action is sustainable in law.


[II] Whether the violation of prohibitory 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 or mixed with any of the said additives and whether known by any name whatsoever viz. Ghutka, Pan Malasala, manufactured chewing tobacco with additives, Kharra or otherwise, whether packaged or un-packaged or sold as one product for its consumption, would attract the provisions of Section 328.


9. As far as the first objection of the learned counsel for the applicants is concerned, in the matter of State of Maharashtra vs. Syed Hasan Syed Subhan MANU/SC/1021/2018 : 2018 AIR (SC) 5348 the Honourable Apex Court has clearly held that the non-compliance of the prohibitory order which prohibits transportation and sale of Ghutka and Pan Masala, would entail a prosecution under Section 55 of the FSS Act, but it has been held that the provisions of the Indian Penal Code 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 under Section 55 of FSS Act and no complaint under the Indian Penal Code could have been preferred by the Food Security Officer for violation of the prohibitory order. While 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 or under Section 68 of the FSS Act, for adjudication.


10. The following observations of the Supreme Court need a note:-


"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 Penal Code, 1860 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 Penal Code, 1860, 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 Penal Code, 1860 merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point."


11. The above observations suitably reply the objection raised by the learned counsel for the applicants that the police could not have invoked Section 328 of IPC.


12. This brings me to the second question, i.e. the applicability or otherwise of Section 328 of IPC. It would be apt and apposite for me 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."


13. The Apex Court had an occasion to deal with Section 328 of the IPC in case of Joseph Kurian Philip Jose Vs. State of Kerala MANU/SC/0869/1994 : (1994) 6 SCC 535. 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 Penal Code, 1860."


"23. 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."


14. The above observations are quite relevant in the backdrop of the facts of the cases which I am dealing with. It is held that in order to prove an offence under Section 328 of IPC, it is essential for the prosecution to prove that the accused was directly responsible for administering poisonous substance 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 those 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 or causing to be taken the poisonous liquor by the deceased who had purchased and consumed liquor from a retail shop.


15. In the said case, the conviction of A-1 under Section 328 was set aside since the prosecution was not able to prove that it was he, who administered said liquor to the deceased or he caused it to be consumed by the deceased. In the said case, the prosecution case was that liquor was sold out from Punala Depot wherefrom 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.


16. What I would like to emphasize is that, the ratio laid down under the aforesaid judgment must be borne in mind in proper perspective while appreciating the cases in hand. There are judgments of this court, namely, in the matter of Anand Chaurasiya and another Vs. State of Maharashtra , Nilesh Narayan Sanghvi Vs. State of Maharashtra Criminal Application (APL) No. 442 of 2020 dated 9.9.2020, and Ganesh Pandurang Jadhav vs. State of Maharashtra (Criminal Writ Petition No. 1027 of 2015 decided on 15.10.2020) wherein the FIRs were sought to be quashed under Section 482 of the Cr.P.C. It may be noted here that this court in the case of Anand Chaurasiya (supra) followed the ratio laid down in the matter of Joseph Kurian Philip Jose Vs. State of Kerala MANU/SC/0869/1994 : (1994) 6 SCC 535. However, during the course of submissions, it is submitted by learned APP that both these judgments, namely, in the matter of Anand Chaurasiya and Ganesh Jadhav (supra) have been stayed by the Honourable Apex Court and are still pending there.


17. The learned APP also placed reliance on the judgment of the Division Bench of this Court in Zahir Ibrahim Panza and others Vs. State of Maharashtra (Criminal Application No. 4968 of 2016 with Criminal Application No. 4214 of 2016) and Vasim Zamir Shaikh vs. State of Maharashtra (Coram : T.V. Nalawade and Vibha Kankanwadi JJ) and the judgment of the learned Single Judge of this court in Vinod Ramnath Gupta Vs. State of Maharashtra (Anticipatory Bail Application No. 2451 of 2020) and Sagar Sadashiv Kore Vs. State of Maharashtra (Anticipatory Bail Application No. 313 of 2021 dated 8.2.2021) In the last referred judgment, the learned Single Bench of this Court took a view that Section 328 of IPC is very much applicable and, therefore, refused to grant benefit of anticipatory bail, whereas, in earlier two judgments of the Division Bench, wherein, quashment of FIR under Section 328 was sought under Section 482 of Cr.P.C., the applications had been rejected on the similar premise that Section 328 is very much applicable.


18. There is no dispute that judgments in the case of Anand Chaurasiya and Ganesh Jadhav (supra) are stayed by the Honourable Apex Court. However, I may point out that the judgment delivered by the Division Bench of this court in the matter of Nilesh Sanghvi (supra) was not at all referred by the learned Single Judges of this Court.


19. All said and done, the fact remains that the ratio of judgment in the matter of Joseph Kurian vs. State of Kerala (supra) matters most and needs to be appreciated earnestly and in proper perspective.


20. As far as the decision given in M/s. Dhariwal Ltd. and others Vs. State of Maharashtra, on which reliance is placed by the learned APP is concerned, in that case, firstly, the interim relief was claimed on the ground of legality of the statutory order dated 19.7.2012 issued by the Food Safety Commissioner, Maharashtra State in public interest in exercise of powers under Section 30(2)(a) of the FSS Act. The Division Bench of this Court repelled both the contentions and refused to grant interim relief. It may not be out of place to mention here that the Division Bench was hearing the question of interim relief and as also the legality of the notification issued by the Food Safety Commissioner under the relevant provisions of FSS Act. Here, it is not so. Here, the very invocation of Section 328 is questioned and the applications are being heard finally and not at an interim stage.


21. This brings me back to the requisites of Section 328 of IPC. On closer scrutiny of Section 328, it is obvious 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. Simply stating, the accused may achieve and complete the act by himself or by means of another. It is nowhere alleged that the applicants were primarily responsible for administering poison. It is also not the case that applicants had helped by aid of third person or by involving third person, who had authority to do so, caused it (poisonous substance) to be used by others. It would be premature to say that act of storage or transporting, as is alleged against the applicants, should be construed as fulfilling the requisites of Section 328 of IPC. There is need to guard against this hard-headed view, which is canvassed by the learned APP, on a sheer contemplation that the act of applicants would tantamount to an act of "administering" or "causing to be taken". The ratio laid down in the case of Joseph Kurian (supra) is all pervasive qua the cases in hand and applies with full rigour.


22. So far as Anticipatory Bail Application No. 1002 of 2021 is concerned, wherein the applicant was charged with offence under Section 307 of IPC as well alongwith other offences, perusal of FIR therein would reveal that ingredients of Section 307 prima facie are not attracted.


23. Taking note of all the above aspects, in my considered opinion, the applicants have made out a case for consideration and, therefore, I am inclined to exercise discretion in their favour. Hence, the following order:-


-:ORDER:-


[I] The applications are allowed.


[II] In the event of arrest of the applicant/s in connection with respective Crime Numbers registered with respective Police Stations for the offences punishable under respective Sections of IPC and Food Safety Standards Act, 2006, as mentioned in the chart annexed at "Annexure A" to this order, the applicant/s be enlarged on bail on their furnishing PR Bond in the sum of Rs. 20,000/- each, with one or two sureties in the like amount.


[II] The applicant/s shall attend the concerned police station as and when called and shall cooperate with the police in the investigation.


[III] The applicant/s shall not tamper with the evidence.


The applications stand disposed of in aforesaid terms.









 

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