2020 (12) TMI 1421 - HC - Indian Laws

Seizure of prohibited scented tobacco and pan masala allegedly stored for sale; s. 438 CrPC anticipatory bail denied

The dominant issue was whether anticipatory bail under s. 438 CrPC should be granted in an offence involving seizure of prohibited tobacco products and ... Seeking pre-arrest protection under section 438 of the Code of Criminal Procedure - seizure of prohibited goods (tobacco) or not - applicability of section 328 of IPC - HELD THAT:- The Division Bench in Anand Ramdhani Chaurasia & Anr..vs.. State of Maharashtra & Ors [2019 (9) TMI 1756 - BOMBAY HIGH COURT] has indeed taken a view that the act of storage of the contraband per se will not attract section 328 IPC. However, the said decision is stayed by the Apex Court, as is noted supra. That apart, while mere storage of the contraband may or may not attract section 328 IPC, the storage in the present case is very clearly with an intention to sell the contraband. It would be relevant to note that another Division Bench at Aurangabad in Zahir Ibrahim Panja & Ors..vs.. The State of Maharashtra and Anr [2018 (10) TMI 2065 - BOMBAY HIGH COURT] has negated the submission that the provisions of section 328 IPC are not attracted to storage of prohibited articles or scented tobacco and pan masala. Perusal of the material made available for my perusal would reveal that custodial interrogation is necessary in the interest of just and effective investigation. The Investigating Officer claims to have reasons to believe that there is a large scale racket operating, and considering the huge quantity of contraband seized, the possibility that the applicant has a manufacturing facility, cannot be ruled out. Custodial interrogation is necessary to elicit the source of acquisition and the names and identity of the purchasers of the contraband. While rejecting the pre-arrest protection, the learned Sessions Judge has noted that in his statement, the applicant has admitted to have purchased the contraband from one Vishal, without disclosing the details of the said Vishal as would assist the Investigating Officer to identify the said person. The submission that there cannot be prosecution unless the contraband is declared unsafe in food analysis, deserves rejection since scented tobacco and pan masala are declared to be unsafe food under the provisions of the FSS Act. Discretion cannot be exercised in favour of the applicant since pre-arrest protection shall hamper fair and effective investigation - application dismissed. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether, on the material available, an offence under section 328 IPC was prima facie made out in relation to storage of prohibited scented tobacco/pan masala intended for sale. (ii) Whether prosecution for the alleged contraband required a prior declaration in food analysis that the seized goods were 'unsafe', or whether they stood treated as unsafe under the governing regime. (iii) Whether the applicant satisfied the requirements for discretionary pre-arrest protection, particularly in light of (a) allegedly false assertions made on oath and (b) the Court's assessment that custodial interrogation was necessary for effective investigation. 2. ISSUE-WISE DETAILED ANALYSIS (i) Applicability of section 328 IPC to storage/intended sale of prohibited tobacco/pan masala Legal framework: The Court examined the ingredients of section 328 IPC as argued-administering or causing to be taken any poison or stupefying/intoxicating/unwholesome thing with the requisite intent/knowledge. The Court also considered that the seized items were gutka/pan masala products acknowledged as seriously detrimental to health, and noted the State's exercise of statutory power under the food safety regime to prohibit such products. Interpretation and reasoning: The Court declined to accept the contention that section 328 IPC was 'clearly not attracted.' While a previously relied-on view that mere storage per se may not attract section 328 IPC was noted to have been stayed, the Court independently reasoned that the present case involved storage with intention to sell. Further, the Court treated as determinative the pronouncement of another Division Bench that section 328 IPC could apply to persons indulging in illegal activity of possessing and selling substances likely to cause hurt, without requiring identification of a specific end-user or a specific incident of administration. Conclusion: The Court held it was not possible to agree that section 328 IPC was not made out; a prima facie case under section 328 IPC was found sustainable on the facts and the applied pronouncement. (ii) Whether prosecution depended on food analysis declaring the contraband 'unsafe' Legal framework: The Court considered the offences under the food safety regime and the contention that section 328 IPC could be invoked only after food analysis declared the goods unsafe. Interpretation and reasoning: The Court rejected the premise that prosecution must await such analysis, reasoning that scented tobacco and pan masala are declared to be unsafe food under the relevant provisions. The Court also noted the undisputed harmful nature of gutka/pan masala and the State's prohibition orders issued under statutory powers. Conclusion: The Court conclusively rejected the argument that absence of a food analysis declaration barred prosecution; the goods were treated as unsafe under the applicable provisions. (iii) Entitlement to pre-arrest protection: effect of false assertions and necessity of custodial interrogation Legal framework: The Court applied the discretionary standard for pre-arrest protection, assessing credibility of the applicant's assertions and the investigative need for custody. Interpretation and reasoning: The Court found that the applicant's categorical assertions on oath (that nothing was seized from his establishment and that the premises/goods were not his) appeared false, especially given the applicant's own reliance on the fact that he was present during the raid but not arrested. The Court further relied on the investigative material indicating necessity of custodial interrogation: the investigating agency asserted a suspected large-scale racket, the quantity seized was huge, the possibility of a manufacturing facility could not be ruled out, and custody was required to elicit the source of acquisition and identify purchasers. The Court also considered that the applicant had allegedly admitted purchasing contraband from an identified individual while withholding details necessary for identification. Conclusion: The Court held that discretion could not be exercised in favour of the applicant because pre-arrest protection would hamper fair and effective investigation, and custodial interrogation was necessary; the application for pre-arrest protection was therefore dismissed.