Bombay High Court
Nipul Jayantilal Nagde vs The Sr. Police Inspector Narpoli Police ... on 6 November, 2020
Equivalent citations: AIRONLINE 2020 BOM 2712
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
1&2.ABA St.2451-2020with ABA St.2489-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Anticipatory Bail Application Stamp No. 2451 / 2020
Vinod Ramnath Gupta .. Applicant
Vs.
The State of Maharashtra .. Respondent
With
Anticipatory Bail Application Stamp No. 2489 / 2020
Nipul Nagde .. Applicant
Vs.
The State of Maharashtra .. Respondent
......
Mr. Tushar Sonawane, Advocate for the Applicant in ABA Stamp No.2451/2020.
Mr. Mateen Shaikh, Advocate for the Applicant in ABA Stamp No.2489/2020.
Mr. Raja Thakare, Senior Counsel for State.
......
CORAM : SANDEEP K. SHINDE J.
DATE : 6TH NOVEMBER, 2020.
(Through Video Conference) Najeeb 1/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt P.C. :-
1. Apprehending the arrest in connection with offences punishable under Sections 328, 188, 272, 273 r/w 34 of the Indian Penal Code, 1860 ('IPC' for short), both the applicants are seeking pre-arrest bail.
2. Facts in Anticipatory Bail Application No. 2489/2020 :
Acting on a tip off officer attached to Crime Branch on 03.08.2020, intercepted two vehicles driven by Manish Jha and Avinash Vichare. Upon taking search, prohibited unsafe food articles like Pan-Masala worth Rs. 12,10,000/- were seized from vehicles. Drivers were interrogated in Crime No. 397/2020. They divulged that contraband was being transported by them, at the behest of the applicant. Najeeb 2/16
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3. Facts in Anticipatory Bail Application No. 2451/2020 :
Acting on tip off, that one Rohit was likely to come in Kalyan City, to sell tobacco - unsafe food, a trap was laid and Rohit was apprehended. On his personal search, Vimal Pan Masala - unsafe food articles worth Rs. 23,400/- were seized. Rohit told police that food articles, were given to him by the applicant in Application No. 2451/2020.
4. Both the applications are taken up for hearing together since points canvassed by the respective Counsels are common. Their contention is that offences punishable under Sections 188, 272, 273 are bailable offences and so far as offence under Section 328 of the IPC is concerned, it is submitted that the Division Bench of this Court, in the Case of Anand Ramdhani Chourasiya, (Writ Petition No. 3607 / 2019) has held that "mere storage of prohibited food articles Najeeb 3/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt without any further action and on contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetch consequence of an act of administering or causing to be taken."
Thus contended, even otherwise mere 'storage' cannot even be construed as an attempt to commit an offence under Section 328 of IPC since and act would become an attempt only to positive act being committed by a person. Learned Counsels have also relied on Paragraph No.16 of judgment of the Division Bench of this Court, Aurangabad Bench in the case of Ganesh Pandurang Jadhao and others pronounced on 15.10.2020, which reads as under;
"16. We may state here that, we re in respectful agreement with the view expressed by the Division Bench at principal seat in so far as the applicability of Section of IP Code against the petitioners in the present matter. We further state that in so far as Section 188 of IP Code is concerned, the facts in the present matter are distinguishable from the facts of the Writ Petition No. Najeeb 4/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt 3607/2019. As stated above, in Writ Petition No. 3607/2019 the Division bench at principal seat was pleased to observe that the Writ Petition only refers to the storage of food article Gutka or Pan Masala but in the present matters the first information reports specifically refers to transportation of large quantity of the prohibited articles i.e. Gutka or Pan Masala."
Submission is that, in view these two judgments prosecution could not have applied provisions of Section 328 of the IPC, to the facts of the case and even otherwise, both the applicants were not found in possession of prohibited food articles.
5. In the case of Chourasiya (supra), F.I.R. was registered on the basis of complaint received from the Food Safety Officer recording that when residence and the warehouse of the petitioner was raided Gutka and Pan Masala was found to be stored and thus storage contravened the notification dated 28.07.2020 issued by the Food Safety Najeeb 5/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt Commissioner, State of Maharashtra. Pursuant to registration of FIR, petitioners were arrested on 02.03.2019 and were released on bail on 05.03.2019. Thus petitioners therein had challenged the action initiated against them by registering the FIR and invoking and applying Section 328 and 188 of IPC.
6. Before adverting to the facts of the case and submission of the Counsels for the applicants, it may be stated that judgment in the case of Chourasiya (supra), on challenge by the State, the Apex Court vide order dated 31.08.2020 has stayed it. In view of this order, the Division Bench of this Court at Aurangabad has also stayed its judgment, in Ganesh Pandurang Jadhao and Others for six weeks.
7. Learned Counsels submitted that applicants in both the applications were not found in possession of prohibited Najeeb 6/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt food articles but were implicated in the case on the revelations made by the co-accused. It is contended that the FIR does not even remotely suggest that the applicants either administered alleged unsafe prohibited food, allegedly containing intoxicating drug to a person with intent to cause hurt to such person; nor there is any material to suggest the applicant caused one of the substances to be taken by another person. Therefore, it is submitted that though the judgment of the Division Bench in Chourasiya (supra) has been stayed by the Apex Court, the allegations on the face of it does not make out an offence punishable under Section 328 of IPC.
Controverting arguments of the applicants, Mr. Raja Thakare, learned Senior Counsel for the State would contend, that in these proceedings (anticipatory bail) when the investigation is at initial stage, contention of the applicants Najeeb 7/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt that the allegations do not prima-facie make out an offence under Section 328 of IPC cannot be gone in to. Mr. Thakare, submitted in the State of Maharashtra, the Food Safety Commissioner in pursuant to provision of Section 30 of the Food Safety and Standards Act, 2006 ('F.S.S. Act' for short) has notified, 'order' in the official gazette and prohibited manufacture, storage distribution or sell of any article of food in the nature of Pan Parag and Supari in the interest of public health. He therefore submits, prohibitory order being notified in official gazette, it is an 'order' under Section 188 of IPC and thus it is to be presumed applicant had knowledge of it. Mr. Thakare further submitted that in both the cases, the co- accused who were found in possession of 'unsafe food articles' had revealed and disclosed that unsafe food articles were being transported at their / his behest.
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8. Next submission of Mr. Thakare is that in the case of Chourasiya (supra), the petitioners therein were found in possession of unsafe food i.e. Pan Parag, Areca Nut, Pan Masala, however, in this case, the co-accused were transporting/carrying the goods at a pre-decided destination, at the instance of the applicants. It is therefore, submitted that the applicants herein are either manufactures or engaged in the business of distribution or sale of unsafe food articles. Therefore he submitted, when substantial quantity was found and recovered, the presumption is it was not for personal consumption but definitely for sale. Contention is, whether the applicants administered unsafe food to a person with intent to cause hurt to him or whether applicants causes any person, one of the substances mentioned in Section 328 of IPC to another suggesting involvement of third person or otherwise is Najeeb 9/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt the matter of investigation and it cannot be ascertained or judge at this stage. Thus it is contended if the applicants are granted pre-arrest protection, State may not unearth and trace the whereabout of persons involved in manufacturing and distribution or sale of unsafe food articles, consumption of which is unhealthy. It is submitted, if pre-arrest protection is granted, it may adversely effect States' right to investigate, and would prove hindrance in combating the menace of Pan Parag
- Pan Masala. Mr. Thakare thus, sought rejection of the applications.
9. At the outset, it may be stated that the considerations for quashing F.I.R/ complaint under Article 226 of Constitution of India or under Section 482 of the Criminal Code Procedure, being different, obviously cannot be applied in pre-arrest bail proceeding.
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10. Be that as it may, section 328 of the IPC is attracted where the substance in question is poison or any stupefying, intoxicating or unwholesome drug or other thing is administered or caused to be taken by any person with an intent to cause hurt or with an intent to commit or to facilitate the commission of an offence or intent it to be likely that he will thereby cause hurt, becomes punishable under the provision. Therefore, first part of Section 328 contemplates a direct involvement of a person whereas, second part suggest any indirect method for causing one of the substances to be taken by any person. Expression "causing" involves some action. "Causation" means the action of causing something.
"Intervening causation" means an event that comes between the initial event in sequence and the end result. Manufacturing "unsafe food" is initial event. Causing its Najeeb 11/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt movement by transporting or storing it with an intent to reach to end user are the events in sequence caused by active participation (positive act) of intermediate agencies or persons. Thus, all such events involving active participation of persons at each stage, is relevant here. A person at end is a 'consumer' to whom "unsafe food" is sold, knowing well that its consummation would cause hurt to him. Therefore, persons involved in manufacturing "unsafe food"; causing its movement to market or storing it with intent to sell it, either himself or through other persons, while prohibitory 'order' promulgated under Section 30 of the F.S.S. Act is in force, in my opinion, such all persons, under express or implied authority either individually or otherwise, "causes person to take" unsafe food with intent to cause hurt. It is 'indirect causation'.
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11. The facts of the case show, substantial quantity of unsafe food has been recovered by the State from the co- accused, who were causing its movement at the instance of the applicants and therefore it cannot be said it was for personal use of the applicants. The common course of natural events, obviously suggest, a huge quantity of the "unsafe food articles"
seized was being transported or moved to market, with in intent to sell it, while prohibition 'order' was/is in force knowing well, it contains poisonous or unhealthy substance. Abundant research material that are available have established beyond any doubt that tobacco or nicotine have deleterious effect on the human body. That is the reason, why manufacturing and sale of Pan Parag, Areca Nut or Supari which causes oral cancer, throat cancer, liver cancer and diseases like hypertension, cardio-vascular diseases are Najeeb 13/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt prohibited in the State of Maharashtra. Infact, Commissioner of Food Safety has notified prohibitory order under Section 30 of the F.S.S. Act, 2006. Therefore while prohibitory order is promulgated is in force, a person who manufactures and/ or stores, substantial quantity of unsafe food and/ or causes its movement from manufacturing unit to market for sell, it is to be presumed that he caused the movement with intent to sell it, knowing fully well that its consumption is unhealthy and would cause the harmful effects on health like cancer, hypertension etc.
12. Thus the manufacturing unsafe food articles, moving these goods from the manufacturing unit to market for its sale is an event and that any action in chain of circumstances which foreseeably leads to and facilitates the sale of food articles is further event may be said to be a cause of that event to bring Najeeb 14/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt the action within the expression', "causes to be taken by a person", any poison with intent to cause hurt to such person, in terms Section 328 of the IPC. In my view, the offence under Section 328 of IPC, essentially is not causing someone (another person) else to do prohibited act but 'causing' a person to consume food articles knowing well that its consumption would hurt such person. Even otherwise in the proceeding like in hand where investigation is at initial stage, and the relevant material is yet to be collected; it may not be appropriate to hold that FIR does not make out an offence under Section 328 of IPC. In the consideration of facts of the case, I am not inclined to grant pre-arrest protection to the applicants. Applications are rejected. Interim pre-arrest protection granted, is vacated.
13. Mr. Sonawane, learned Counsel for the Applicant seeks Najeeb 15/16 1&2.ABA St.2451-2020with ABA St.2489-2020.odt continuation of interim pre-arrest protection granted by this Court on 30th September, 2020 for a period of four weeks to enable the applicants to challenge this order before the Hon'ble Apex Court. Having regard to the facts of the case, the interim pre-arrest protection granted by this Court shall continue to operate for the period of four weeks. However, it is clarified that the applicant shall report to the Investigating Officer and Cooperate in the investigation as and when called.
(SANDEEP K. SHINDE, J.) Digitally signed by Shambhavi Shambhavi N. Shivgan N. Shivgan Date:
2020.11.07 13:26:17 +0530 Najeeb 16/16