The entire gamut of this provision is quite peculiar. It says that the culprit
should administer to the victim. A substance which would be stupefied or
poisonous with an intention to cause hurt to him. Possessing Gutka or Pan Masala or transporting Gutka or Pan Masala does not amount to administering it to any victim. As said above, Gutka or Pan Masala were
not subjected to food analysis so far. On the other hand, the
Commissioner simply opined that it could be injurious to health. He
placed reliance on various reports which he received from time to time.
He did not placed reliance on report of food analysis appointed under the
provisions of FSS Act, 2006. It could therefore be said that Gutka or Pan
Masala could be poisonous. So, possessing or transporting Gutka or Pan
Masala did not amount to offence under Section 328 of the Indian Penal
code. In our view, this provision will not apply to the present cases.
The next question is, whether manufacturing, possession,
selling of Gutka and Pan Masala would amount to offence punishable under Section 328 of the Indian Penal Code. Section 328 of the Indian Penal Code reads as under :-
“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.”
By no stretch of imagination, manufacturing, possessing Gutka and Pan
Masala would amount to administering poison. As said above, Gutka or
Pan Masala are not subjected to food analysis. The commissioner opined
that in its sale etc. ia not in public interest. This opinion is based on
various reports but not report of Food Analyst appointed under the
provisions of the FSS Act. Therefore, it cannot be said that Gutka and Pan
Masala are stupefying, intoxicating or unwholesome drug. Besides offering
these items of Food would not amount to intention to cause hurt. The
provisions of Section 328 of the Indian Penal Code to the present cases is
therefore impermissible.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1027 OF 2015
Ganesh Pandurang Jadhao, Vs The State of Maharashtra,
CORAM : A.V. NIRGUDE &
INDIRA K. JAIN, JJ.
DATE : 4th March, 2016
