Mere storage of prohibited tobacco does not by itself attract IPC offences under Sections 328 or 188.
Mere storage of prohibited tobacco, gutka and pan masala does not satisfy Section 328 IPC, which requires direct administration of a poisonous, stupefying, intoxicating or unwholesome substance, or causing it to be taken by another person; storage alone is only preparatory and insufficient. Section 188 IPC likewise requires disobedience of a duly promulgated order that causes or tends to cause obstruction, annoyance, injury, or danger to human life, health or safety, and storage by itself without further conduct such as manufacture, distribution, sale or movement into consumption did not meet that threshold. The FIR was quashed as to those penal provisions, while proceedings under the food safety law remained unaffected.
Issues: (i) Whether mere storage of prohibited tobacco, gutka and pan masala attracted Section 328 of the Indian Penal Code, 1860; (ii) Whether such storage and disobedience of the prohibitory notification attracted Section 188 of the Indian Penal Code, 1860.
Issue (i): Whether mere storage of prohibited tobacco, gutka and pan masala attracted Section 328 of the Indian Penal Code, 1860.
Analysis: Section 328 contemplates either direct administration of a poisonous, stupefying, intoxicating or unwholesome substance, or causing it to be taken by another person. The provision requires an active nexus between the accused and consumption, with direct, reliable and cogent material showing administration or causation. Mere possession or storage, without any further act showing that the accused administered the substance or caused it to be taken, does not satisfy the ingredients of the offence. Storage by itself is only preparation and does not amount to an attempt under this provision.
Conclusion: Section 328 of the Indian Penal Code, 1860 was not attracted on the facts and the prosecution could not continue on that count.
Issue (ii): Whether such storage and disobedience of the prohibitory notification attracted Section 188 of the Indian Penal Code, 1860.
Analysis: Section 188 applies only when disobedience of a duly promulgated order causes or tends to cause obstruction, annoyance, injury, or danger to human life, health or safety. The order in question prohibited storage and related activities in the interest of public health, but the FIR alleged only storage and did not attribute any further act such as manufacture, distribution, sale or actual movement of the goods into the stream of consumption. Mere storage, without a demonstrated tendency to cause the statutory danger contemplated by the section, was insufficient to constitute the offence.
Conclusion: Section 188 of the Indian Penal Code, 1860 was not made out on the facts and the prosecution could not continue on that count.
Final Conclusion: The FIR was quashed to the extent it invoked the two penal provisions of the Indian Penal Code, while leaving the proceedings under the food safety law unaffected.
Ratio Decidendi: Offences under Section 328 require either direct administration or causation of consumption of the prohibited substance, and Section 188 requires disobedience that causes or tends to cause the statutory harm contemplated by the provision; mere storage of prohibited goods, without more, is insufficient for either offence.
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