2019 (9) TMI 1756 - HC - Indian Laws

Storing banned gutka/pan masala under FSS Act s 30(2)(a) order: IPC 188/328 charges quashed, food safety case continues

Prosecution for storing prohibited gutka/pan masala under an order issued u/s 30(2)(a) of the FSS Act raised whether IPC ss 328 and 188 could be invoked ... Storage of prohibited Gutka/pan masala - breach of prohibition order - whether the violation of order issued by the Food Safety Commissioner in exercise of powers conferred u/s 30(2)(a) of the FSS Act which prohibits the manufacture, storage, distribution, transport or sale of tobacco either flavoured, scented or mixed with any of the said additives, and whether known by any name whatsoever, Gutka, Pan Masala, manufactured chewing tobacco with additives, kharra or otherwise, whether packaged or unpackaged and/or sold as one product for its consumption would attract the provisions of Section 328 and Section 188 of the IPC? HELD THAT:- A Designated Officer is competent to decide as to whether contravention, if any, is to be punished by imprisonment or with fine and this, he would decide on scrutiny of the report of the Food Analyst. If he is satisfied that the contravention is liable to be punished with imprisonment, he is bound to send his recommendation to the Commissioner within fourteen days seeking his sanction for prosecution. However, when he arrives at a conclusion that the contravention should be punishable with fine only, he himself would decide the same. Thus what is to be noted is that the contravention contemplated under the enactment would be dealt with by two distinct methodology and needless to say that those contraventions which entail with imprisonment are necessarily of serious nature and, therefore send for adjudication to the court of law. Section 49 of the FSS Act then deals with the quantum of penalty for committing an offence of rendering food injurious to health. The cases can be made over to the police station in case where the Designated Officer arrives at a conclusion that the prosecution has to be launched. In the present case, the FIR registered against the Petitioners invoke the provisions of the FSS Act and the Petitioners are charged with Section 59 which prescribes punishment for indulging in unsafe food either by manufacturing it for sale, storage or selling or distributing or importing any such articles with knowledge that it is unsafe. Mr. Ponda has not argued to the effect that the Petitioners cannot be charged under the relevant provisions of the FSS Act. His objection is only to the invocation and application of Sections 328 and 188 of the IPC. On perusal of the decision of the Apex Court in the case of Sayyed Hassan Sayyed Subhan [2018 (9) TMI 1803 - SUPREME COURT], the Apex Court has clearly held that non-compliance of the prohibitory order which prohibited transportation and sale of Gutka and Pan Masala would entail a prosecution under Section 55 of the FSS Act but it has been held that the provisions of IPC 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 submucous of the notification issued by the Food Safety Commissioner can be penalized only by imposing fine mentioned in Section 55 and no complaint under the IPC 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 of the FSS Act or under Section 68 of FSS Act for adjudication. The FIR lodged against the Petitioners alleges only storage. Undisputedly, there is a disobedience of an order which prohibits storage of tobacco, Pan Masala and Gutka. Far away Nothing in the FIR attribute any other act to the Petitioners viz. manufacture, distribution or sale. Disobedience of the promulgated order under Section 188 of the IPC is punishable if it causes or tends to cause danger to human life. The section do not use the term ‘likely to cause’, conveying that there has to be a positive evidence of causing or tends to cause danger to human life and in absence, Section 188 is not attracted. It is not in doubt that the tobacco and its products are dangerous to human life and safety. However, mere possession or storage cannot fall within the purview of ‘Danger’ contemplated under the said section. The goods, as long as they remain stored, do not pose any danger. The goods will have to be moved beyond the store to be sold - ‘to be purchased for consumption’ and mere storing a food item would not pose the intended danger to human life. The gap between the storage and the consumption by a consumer will have to be bridged before the danger or the hurt contemplated under Sections 328 and Section 188 of the IPC get attracted and it is only when the prosecution proves that it is the Petitioners who are the one who did it, their prosecution would be a success. The FIR registered against the Petitioners set aside only to the extent it registered offence against the Petitioners under Section 328 and 188 of the IPC and the Respondents are restrained from initiating any action against the aforesaid provisions under the IPC. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether allegations confined to storage of prohibited Gutka/Pan Masala, in breach of a prohibition order issued under Section 30(2)(a) of the Food Safety and Standards Act, 2006, satisfy the essential ingredients of Section 328 IPC ('administers to' / 'causes to be taken'). (ii) Whether the same allegations of mere storage, though amounting to disobedience of a promulgated prohibition order, satisfy the further requirement under Section 188 IPC that such disobedience causes or tends to cause danger to human life, health or safety. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Applicability of Section 328 IPC to mere storage of prohibited Gutka/Pan Masala Legal framework (as discussed by the Court): The Court examined Section 328 IPC, identifying its two operative modes: (a) 'whoever administers to' and (b) 'or causes to be taken by any person' any poison/stupefying/intoxicating/unwholesome drug or other thing, with requisite intent/knowledge of likely hurt. The Court also considered the statutory scheme of the Food Safety and Standards Act, 2006 as a self-contained regulatory and penal framework addressing unsafe food, including storage and sale, and noted that prosecution under the Act was already invoked and not challenged. Interpretation and reasoning: The Court held that Section 328 IPC requires a direct nexus between the accused and the act of administration or causation of ingestion by another person. 'Administers to' denotes direct involvement in making another receive the substance. 'Causes to be taken' denotes an indirect method involving active operation, dominance/control, or a positive mandate resulting in the substance being taken by another. The Court applied the binding principle that the prosecution must show the accused was directly responsible for administering or causing the substance to be taken, and that such linkage cannot be presumed from mere possession or storage. Conclusions: On the FIR allegations being limited to storage of prohibited products, the Court found the conduct falls short of Section 328 IPC. Storage, even if suggestive of possible future sale, is too remote to constitute 'administering' or 'causing to be taken' and does not amount to an attempt under Section 328. Accordingly, continuation of prosecution under Section 328 IPC was held to be an abuse of process and was quashed. Issue (ii): Applicability of Section 188 IPC to mere storage in breach of the prohibition order Legal framework (as discussed by the Court): The Court analysed Section 188 IPC, emphasising that punishment is attracted not by disobedience alone, but where disobedience causes or tends to cause specified consequences, including danger to human life, health or safety. The Court also accepted that disobedience of such an order may entail consequences under the Food Safety and Standards Act, 2006, but examined whether the FIR allegations met the distinct threshold under Section 188 IPC. Interpretation and reasoning: The Court held that Section 188 IPC requires a showing that the disobedience itself causes or tends to cause danger; the provision does not proceed on a mere 'likely to cause' standard without a positive nexus. While acknowledging the harmful nature of tobacco products, the Court reasoned that mere storage/possession does not, by itself, create the 'danger' contemplated by Section 188 IPC. The danger to human life/health arises only when goods move beyond storage into distribution/sale and are purchased and consumed; the FIR alleged no such further acts. Conclusions: Since the FIR attributed only storage and did not allege manufacture, distribution, or sale, the essential element of Section 188 IPC-disobedience that causes or tends to cause danger-was not made out. Prosecution under Section 188 IPC was therefore quashed, while leaving prosecution under the Food Safety and Standards Act, 2006 undisturbed.