TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1756
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....volve best policies to deal with this menace. The steps taken throughout the world in the form of bans imposed on tobacco advertisement and promotion, pictorial health warning and the high rate of taxes dealing with illicit trade of tobacco, has yielded some positive results. 2. The scale of human and economic tragedy that tobacco imposed is shocking. In 2003, the World Health Organization member states universally adopted the WHO Framework Convention on Tobacco Control ("WHO FCTC"), which came into force in 2005. It has currently 185 parties covering more than 90% of the world population. There is a fundamental and irreconcilable conflict between the tobacco industries' interest on the one hand and public health industries' interest on the other hand. The present writ petition is an illustration depicting such a conflict in the form of transportation and sale of Gutka and Pan Masala, the former being a chewing tobacco, preparation made of crushed areca nut, tobacco, catechu, paraffin wax, slaked lime and sweet or savory flavourings. It contains carcinogens, which is identified to be a cause for oral cancer and other severe negative health effects. Pan Masala on the other han....
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....State of Maharashtra. Pursuant to the registration of the FIR, the Petitioners came to be arrested on 02/03/2019 and were released on bail on 05/03/2019. It is in the backdrop of this limited facts, the petition poses a challenge to the action initiated against them by registering the FIR and invoking and applying Section 328 and Section 188 of the IPC. 5. The arguments advanced by Mr. Ponda, the learned counsel appearing for the Petitioners is enlaced around the Food Safety & Standards Act, 2006 which according to him is a complete Code in itself empowering the Food Safety Officer to take necessary steps and regulate the manufacture, storage, distribution and sale and import of food products to ensure that safe and wholesome food is available for human consumption. Mr. Ponda has invited our attention to the gamut of the litigation revolving around the FSS Act and the provisions of the IPC, in specific, Section 328 and Section 188 of the IPC and would submit that in the State of Maharashtra, several complaints came to be lodged by the Food Safety Officers resulting into registration of FIRs for the offences punishable under the provisions of Sections 26 and 30 of the FSS Act and....
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....ted in the section must be consumed and, in the first case, it is taken without the intervention of the third person and it presupposes involvement of the accused and the victim whereas in the second case, where the substance must be "caused to be taken", which necessarily involves a third person who is also involved in the act of the victim taking the said substance. Mr. Ponda would attribute the distinct connotation of the term "caused to be taken" and according to him, it clearly relates to the past tense/present perfect tense and by no stretch of imagination would entail an act in future tense. According to him, the use of the words "caused to be taken" is indicative of legislative intent that a precondition for the section to apply is that the substance must be taken in the first place or else the section will not apply and thus, according to him, unless the act of consumption/taking is not complete, Section 328 of the IPC is not attracted. Applying the said corollary, according to him, simple storage of the substance without anything mentioned in Section 328 and in the case of the Petitioners, storage of Gutka and Pan Masala ipso facto would not attract the offence under Sect....
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....e disobedience is liable for culpability. He has placed reliance on the judgment of the Apex Court in the case of Ramlila Maidan Incident reported in (2012) 5 SCC 1. Mr. Ponda has also placed reliance on the two judgments reported in 1954 (2) All ER 280 (Queen's Bench Division) in the case of Shave v. Rosner and 1975 (1) WLR 988 in the case of Price v. Cromack to explain the terminology used in Section 328 as well as Section 188 of the IPC viz. the word "causes". The submission of learned counsel for the Petitioners can thus be summarized in nutshell to convey that the Petitioners cannot be made liable for the offence punishable under Section 328 of the IPC and Section 188 of the IPC and he is ready and willing to face the contravention as contemplated under the FSS Act. 7. We have also heard Mr. Deeapk Thakare, learned Public Prosecutor representing the State of Maharashtra and he would painstakingly invite our attention to the ill-effect of consumption of tobacco and any other products containing tobacco viz. Gutka and Pan Masala and he would submit that all over the world scientific evidence demonstrate that food products containing tobacco have extremely deleterious effec....
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.... health has prohibited manufacture, storage, distribution, transport or sale of any such article or food which is either tobacco or known by whatsoever name or whatsoever form, is sold in the market, then according to Mr. Thakare, the Petitioners are covered by the provisions of the penal code contained in Sections 328 and 188 of the IPC and he would pray that the petition be dismissed. 9. We have heard learned counsel for the parties and we can perceive that the moot question which is placed before us for adjudication in the present writ petition being whether the violation of 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, 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. 10. Before proceeding to deal with the said issue, we would like ....
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....der Section 30(2)(a) of the FSS Act, the Commissioner of Food Safety appointed by the State Government is empowered to impose prohibition on the manufacture, storage, distribution or sale of any article of food for a period of one year either in the whole State or part thereof if it is in the interest of public health. 12. The Commissioner of Food Safety by invoking the said power has issued notification from time to time by which it has prohibited the manufacture, storage, distribution or sale of tobacco and its other forms viz. Gutka, Pan Masala, manufactured chewing tobacco, etc. for a period of one year. The issuance of such notification and the power of the Commissioner to issue the said Notification is not in dispute. According to Mr. Ponda, the FSS Act is a complete Code and Section 55 of the said Act sets out a penalty for failure to comply with the directions of the Food Safety Officer and it is his submission that if the order which is in the form of direction issued by Food Safety Officer under Section 30(2)(a) of FSS Act is not complied with then the consequences are provided in the FSS Act itself. The perusal of the provisions of the enactment discloses that there i....
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....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. The penalty can be imposed for failure to comply with the directions of the Food Safety Officer under Section 55 of the FSS Act and even Section 59 of FSS Act would get attracted if any person who, whether by himself or by any other pe....
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.... 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. 15. On perusal of the decision of the Apex Court in the case of Sayyed Hassan Sayyed Subhan (supra), 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. Whiel 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 6....
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....proceeded to deal with the said arguments on the applicability of the relevant provisions of the IPC in the case of Vasim Shaikh (supra). Before we go to the said judgment, it would be apposite for us 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." 17. The Apex Court had an occasion to deal with Section 328 of the IPC in case of Joseph Kurian Philip Jose (supra). 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.....
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....id 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 v....
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....harashtra, there is prohibition to manufacture, possess and on sale of aforesaid food articles and the possession or sale or manufacture is made punishable under the Act. The relevant provisions of this Enactment 26(2)(1), 3(1)(ZZ), 27(3)(E) R/w. 59 and 27(3)(d) are also mentioned by the Food Safety Officer. There was no question of licence of any kind with the applicants and from the huge quantity which is recovered, it can be said that they had the intention to sell these articles as food articles." The subsequent judgments follow the same path and are relied upon by the learned Public Prosecutor to submit that the issue as to the applicability of Section 328 of the IPC in case of the Petitioners is already put to rest by the aofresaid judgments. 20. We must candidly express that the Division Bench has not taken into consideration the judgment of the Apex Court in the case of Joseph Kurian Philip Jose (supra) and, therefore, we do not felt bound by the same as it is per incuriam. Apart from this, it did not go to the root of the issue as to whether offence under Section 328 of the IPC is made out. 21. Section 328 of the IPC finds place in Chapter XVI under caption "Causi....
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....rary to the Motor Vehicles (Construction and Use) Regulations, 1951. The Queens Bench in these facts held that the word 'causes' in the Regulations of 1951 involved some degree of dominance or control over the person who used the vehicle, or some express or positive mandate to him, by or from the person alleged to have caused the user after the respondent had delivered the vehicle back to the owner he ceased to have any control over it; and, therefore, he had not caused it to be used on a road within the meaning of Regulation 101. Lord Goddard, C.J., by referring to the Regulation penned his verdict in the following manner 'if any person uses or causes or permits to be used on any road a motor vehicle or trailer in contravention of or fails to comply with any of the preceding regulations contained in Part III of these regulations, he shall for each offence will be liable to a fine' held that the expressions 'causes or permits' in contrast or juxtaposition 'permit' means giving leave and licence to somebody to use the vehicle, and 'causes' involves a person, who has authority to do so, ordering or directing another person to use it". The distinction is succinctly brought out in the ....
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....ction 328 of the IPC. Mere storage without any further action and on a contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetched consequence of an act of 'administering' or 'causing to be taken'. Mere storage cannot even be construed as an attempt to commit an offence under Section 328 of the IPC since an act would become an attempt only on a positive act being committed by a person which would have resulted in commission of offence. However, the unforeseen act beyond the control of the accused, can only be an attempt. Mr. Ponda has rightly relied upon the judgment in the case of Malkiat Singh (supra) to drive succinct distinction between the preparation and attempt to commit a crime where the Apex Court has held that only preparation is not an attempt and the test for determining whether the act constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. The transportation of paddy in violation of Punjab Paddy (Export Control) Order, 1959 and when a tr....
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.... and thereby causes danger of riot. A has committed the offence defined in this section." 24. A close analysis of the said section would reveal that whoever disobeys an order promulgated by a public servant directing to abstain from certain acts, or to take certain orders with certain property in his possession, disobeys such direction, would attract Section 188 of the IPC if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of it, to any person lawfully employed and if such disobedience causes or tends to cause danger to human life, health or safety shall be punished under the said section. The keywords being 'causes or tends to cause danger to human life, health or safety'. The disobedience of the public order apart from attracting a penalty under Section 55 of the FSS Act would, in view of the decision of the Apex Court in Sayyed Hussain (supra), attract Section 188 of the IPC but it would have to be examined whether it falls within the mischief sought to be penalised by the said section. The FIR lodged against the Petitioners alleges only storage. Undisputedly, there is a disobedience of an order which prohibits storage of tobacco, Pan Masa....