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14.Now the only point that got to be decided is whether section 328 IPC can be made applicable.

15.Section 328 IPC is extracted hereunder:-

“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 https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12686 of 2018 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.”

16.The learned counsel appearing for the petitioner would submit that at no stretch of imagination, storage of the tobacco product will attract the ingredients of the offence under section 328 IPC. For that purpose, he would rely upon several judgments.

17.In Criminal Writ Petition No.1027 of 2015, dated 04/03/2016 in the High Court of Judicature at Bombay Bench at Aurangabad in the case of Ganesh Pandurang Jadhao and another vs. The State of Maharashtra, through the Principal Secretary, Food & Drugs Department, Mantalaya, Mumbai-323 and others, wherein a similar question arose. The subject matter was Gutka and panmasala. The court held that cutka and panmasala are not intoxicating drugs. So, section 328 IPC cannot be made applicable.

https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12686 of 2018

21.On the basis of the allegations mentioned in the complaint, it was held that it does not attract the ingredients of section 328 IPC.

22.On the basis of these judgments, the learned counsel appearing for the petitioner wants this court also adopt the very same approach for quashing the proceedings. So the question, which arises for consideration is whether the ingredients of section 328 IPC are attracted now.

“The words “or other thing” must, in my opinion, be referred to the preceding words, and be taken to mean “ unwholesome or other thing,” and not other thing simply, as the Sessions Judge would construe it, for otherwise we should be involved in endless inconsistencies, and the offering of a loaf of wholesome bread might become the foundation of a criminal prosecution.” Tobacco and Tobacco related products have already been shown to be “unsafe food” under Section 2(zz) of the FSSAI Act as it falls within the net of the expression “deleterious substance” the ordinary, plain meaning of which was noticed as “unwholesome or physically harmful”. The Division Bench in J. Anbazhagan’s case, has taken judicial notice of the harmful and irreversible effects of tobacco products on the human body. Therefore, there is no difficulty in concluding that that tobacco will fall within the net of the expression unwholesome”“other thing” as construed by the Division bench in the Calcutta case. That takes us to the next requirement ie., the causing of hurt (as defined in Section 319 IPC) or intention to commit or https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12686 of 2018 facilitate the commission of an offence. It is important to note that the word “offence” as defined in Section 328 must take its meaning from its definition in Section 40 of the IPC. Section 40 of the IPC specifically provides that for the purposes of Section 328 IPC the word “offence” denotes a thing punishable under this Code, or under any special or local law ad hereinafter defined. In other words, the word “offence” occurring in Section 328 IPC is not confined to offences under the Code and may extend to offences under a special law as well. As already noticed, Section 59 of the FSSAI Act penalizes the manufacture, sale, storage, distribution and import of unsafe food.