Bombay High Court
Mahesh S/O. Masaji Gavali vs The State Of Maharashtra And Others on 15 October, 2018
Author: Vibha Kankanwadi
Bench: T.V. Nalawade, Vibha Kankanwadi
1 30-Cri.Appln. No. 2439-2016.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL
APPLICATION
NO.
2439
OF 201
6
Shivanand S/o Nagnath Shinde,
Age : 38 Years, Occ. : Business,
R/o. Basvantwadi Tq. Tuljapur,
Dist. Osmanabad
Presently residing at
Gopalnagar, Tuljapur, Tq. Tuljapur,
Dist. Osmanabad. ..APPLICANTS
VERSUS
01. The State of Maharashtra
Through the Principal Secretary,
Home Department
Mantralya Mumbai
02. The State of Maharashtra
Through the Principal Secretary
Food and Drug Department,
Mantralaya Mumbai
03. Dayanand S/o Vitthalrao Patil,
Age : 45 Years, Occ. Government Service,
Food Safety Officer, Food & Drug
Administration State of Maharashtra
Osmanbad
R/o. Sadbhavana Nagar, Ausa road,
Latur. ..RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 2440 OF 2016
Mahesh S/o Masaji Gavali
Age : 36 Years, Occ. Business
R/o. S.T. Colony, Tuljapur
Tq. Tuljapur Dist. Osmanabad ... APPLICANTS
VERSUS
1. The State of Maharashtra
Through the Principal Secretary,
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2 30-Cri.Appln. No. 2439-2016.odt
Home Department
Mantralya Mumbai
2. The State of Maharashtra
3. Dayanand S/o Vitthalrao Patil,
Age : 45 Years, Occ. Government Service,
Food Safety Officer, Food & Drug
Administration State of Maharashtra
Osmanabad ..RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 2445 OF 2016
Aqlaq @ Ashpaq S/o Usman Shaikh
Age : 35 Years, Occ. Business
R/o. Vishwas Nagar, Hudco, Tuljapur
Tq. Tuljapur Dist. Osmanabad
VERSUS
1. The State of Maharashtra
Through the Principal Secretary,
Home Department
Mantralaya Mumbai
2. The State of Maharashtra
3. Dayanand S/o Vitthalrao Patil
Age : 45 Years, Occ. Gov.Service,
Food Safety Officer, Food & Drug
Administration State of Maharashtra
Osmanabad.
WITH
CRIMINAL APPLICATION NO. 2447 OF 2016
Nagesh S/o Shankar Devkar,
Age : 30 Years, Occ. Business
R/o. Vetalnagar, Tuljapur
Dist. Osmanbad ..APPLICANT
VERSUS
01. The State of Maharashtra
Through the Principal Secretary,
Home Department
Mantralya Mumbai
02. The State of Maharashtra
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3 30-Cri.Appln. No. 2439-2016.odt
Through the Principal Secretary
Food and Drug Department,
Mantralaya Mumbai
03. Dayanand S/o Vitthalrao Patil,
Age : 45 Years, Occ. Government Service,
Food Safety Officer, Food & Drug
Administration State of Maharashtra
Osmanbad
R/o. Sadbhavana Nagar, Ausa road,
Latur. ..RESPONDENTS
WITH
CRIMINAL APPLICATION NO. 2453 OF 2016
Ramchandra S/o Laxman Gate,
Age : 42 Years, Occ. Business
R/o. C/o Hanmant Wagh Gopalnagar,
Tuljapur..
VERSUS
01. The State of Maharashtra
Through the Principal Secretary,
Home Department
Mantralya Mumbai
02. The State of Maharashtra
Through the Principal Secretary
Food and Drug Department,
Mantralaya Mumbai
03. Dayanand S/o Vitthalrao Patil,
Age : 45 Years, Occ. Government Service,
Food Safety Officer, Food & Drug
Administration State of Maharashtra
Osmanbad
R/o. Sadbhavana Nagar, Ausa road,
Latur. ..RESPONDENTS
...
Advocate for the applicant : Mr. K. K. Kulkarni
A.P.P for respondent-State : Mr.R.V.Dasalkar
...
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4 30-Cri.Appln. No. 2439-2016.odt
CORAM :T.V. NALAWADE AND
SMT.VIBHA KANKANWADI,JJ.
DATE :15-10-2018
ORDER :
All the proceeding are filed under Section 482 of the Code of Criminal Procedure for relief of quashing of various first information reports registered for the offences punishable under Sections 272, 273,188, 328 of the Indian Penal Code and under Section 26(2)
(i),26(2)(iv), 30(2)(a), 3(1)(zz)(v), 27, 59(3) of Food Safety and Standards Act, 2006 and various rules framed thereunder. 2] The first proceeding is in respect of FIR No. 306/2015 registered with Tuljapur Police Station, District Osmanabad. Second proceeding is in respect of FIR No. 81/2016 registered with the same Police Station third proceeding is in respect of FIR No. 165/2015 registered with the same police station. Fourth proceeding is in respect of FIR No. 307 of 2015 registered with the same Police Station and the last proceeding is in respect of the FIR No. 165/2015 registered with the same Police Station.
3] Both the sides are heard. 4] Papers of the investigations were made available. ::: Uploaded on - 20/10/2018 ::: Downloaded on - 21/10/2018 23:44:47 ::: 5 30-Cri.Appln. No. 2439-2016.odt 5] In the first proceeding packets of sweet betel nut ( Supari) under
various brands, sweet tobacco of various brands are seized from the shops of the applicant of the said proceeding. The applicant is not having the bills in respect of all the quantity of the different varieties showing that he has purchased it from the wholesaler or from the manufacturers. In the second proceedings the applicant was found in possession of the similar items under different names. 6] In the third proceeding similar items were found. In the first proceeding not only the packets, labels and names of the Company were found but the description of Gutka were also found and the quantity was worth more than Rs. 1.68 lakh. In that case also packets of scented Masla, tobacco were found. Packets of blended Gutka were also found worth more than Rs. 35,000/- and packets of Goa Gutka worth more than Rs. 41,000/- were found. In the last proceeding packets of Goa Gutka, Bab Gutka, R.M.B Gutka, R.C. Gutka, Ayarn Gutka and others packets of scented tobacco, Pan Masala and betel nut were found. The value of all these articles is more than Rs. 31,00,000/-. 7] The learned counsel for the applicant placed reliance on the decision given by this Court in Writ Petition No. 1027 of 2015, ( Ganesh Pandurang Jadhao and others Vs. The State of Maharashtra and others) decided with many other proceedings on 04.03.2016 and ::: Uploaded on - 20/10/2018 ::: Downloaded on - 21/10/2018 23:44:47 ::: 6 30-Cri.Appln. No. 2439-2016.odt submitted that registration of crime under the provision of the Indian Penal Code is not possible when food substance is involved. In that case, this Court had quashed the proceeding which were registered on the basis of report given by the Food Safety Officer. 8] The learned A.P.P drew the attention of this Court to the other decisions given by this Court. In that case this Court had occasion to consider the provision of old act, but the same substance and notification preventing the manufacturer sell, possession etc was considered by this Court and there was description as to how the provision of the Indian Penal Code including Section 328 of the Indian Penal Code is applicable in such cases. Recently this Court had occasion to consider the decision given by the Apex Court in Criminal Application No. 1195 of 2018, ( The State of Maharashtra and others Vs. Sayyed Hasan and others) decided on 20.09.2018. The Apex Court has considered various provision of aforesaid special enactment and the Apex Court has laid down that when offence punishable under Indian Penal Code is committed and it is cognizable in nature, crime can be registered. The provision of Section 188 of the Indian Penal Code was considered, and it is laid down by the Apex Court that when there is prohibitory order and when there is breach of the provision, Section 188 of the Indian Penal Code can be used. The relevant provision like Section 27 of the General Clauses Act is also considered by the Apex ::: Uploaded on - 20/10/2018 ::: Downloaded on - 21/10/2018 23:44:47 ::: 7 30-Cri.Appln. No. 2439-2016.odt Court and it is observed that under the Special Enactment there is no specific bar for registration of the crime when offence punishable under Indian Penal Code are also committed.
9] This point was considered by this Court also in Writ Petition No. 3398 of 2011 ( Sanket Food Products Private Limited Vs. Union of India and others) decided on 23.11.2011 with connected matters. This Court has considered the contains of the aforesaid substance like Magnesium Carbonate and heavy metals and it is observed that as Gutka and aforesaid articles are sold as food, the provision of Section 272, 273 and 328 of the Indian Penal Code can be used. How this Food substance is dangerous to the life is also discussed by this Court. 10] In view of the aforesaid position of law, and as the case decided by this Court in the year 2015 was not considered by this Court, in the case of Ganesh Pandurang Jadhao and Others Vs. The State of Maharashtra cited ( supra) and further due to the decision given by the Apex Court in the case of State of Maharashtra Vs. Sayyed Hassan cited ( supra) the observations made by this Court in the case of Ganesh Pandurang Jadhao and Others Vs. The State of Maharashtra are of no use to the applicant. In the cases in which scented tobacco, scented betel nut and Masla were found, it needs to be observed that mixture of this substances makes ''Kharra'' and it is just like a Gutka and so the sale ::: Uploaded on - 20/10/2018 ::: Downloaded on - 21/10/2018 23:44:47 ::: 8 30-Cri.Appln. No. 2439-2016.odt of such individual substance separately cannot be escape from the provision of the special enactment.
11] In view of the aforesaid discussion, this Court holds that no relief can be granted in all the proceedings to the applicants. In the result, all the proceedings are dismissed. Interim relief is vacated.
[SMT.VIBHA KANKANWADI] [T.V. NALAWADE]
JUDGE JUDGE
YSK/
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9 30-Cri.Appln. No. 2439-2016.odt
Advocate for the applicants : Mr. G. G. Kadam
A.P.P for respondent/ State : Mr. M.M. Nerlikar ...
CORAM :T.V. NALAWADE AND
SMT.VIBHA KANKANWADI,JJ.
DATE : 03-10-2018
ORDER :-
[SMT.VIBHA KANKANWADI] [T.V. NALAWADE]
JUDGE JUDGE
YSK/
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