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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 hand, is a combination of betel leaf and areca nut and may contain tobacco. Both the aforesaid products are highly addictive in nature.

WP3607.19(J).doc Court for quashing and setting aside the said FIR.

The FIR is registered on the basis of complaint received from the Food Safety Officer i.e. Respondent No.4 recording that when the residents and godown of the Petitioners was raided, Gutka and Pan Masala pouches were found to be stored and this storage contravened to the Notification dated 20/07/2018 issued by the Food Safety Commissioner, 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.

WP3607.19(J).doc "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 Section 328 of the IPC as it would contempalte something more, over and above simple storage. He would place reliance on the judgment of the Apex Court in case of Malkiat Singh & Anr. v. The State of Punjab reported in 1969 (1) SCC 157 through which the Apex Court brings out the distinction between the preparation and an attempt in the backdrop of the provisions of Essential Commodities Act, 1965. He would also place reliance on the judgment of the Apex Court in case of Aman Kumar & Anr. v. State of Haryana reported in (2004) 4 SCC 379 where a proposition of law came to be pronounced to the effect that mere intention to commit an offence, not followed by any act, cannot constitute an offence and the mere intention is not to be taken for the deed unless there is some external act to show that progress has been made in the AJN 9/37 903 Cri.

WP3607.19(J).doc also the Report of the Government Dental College stressing that the consumption of Gutka or Pan Masala, etc. causes oral submucous fibrosis. Mr. Thakare, learned Public Prosecutor would vehemently submit that it is the duty of the State to take necessary steps to improve public health and after going through various scientific opinion and research it was noted that these products containing tobacco by whatsoever name referred to it, cause immense damage to the health of consumers and their adverse impact could also lead to alterations of the genetic make- up of future generations. He would further submit that Gutka and Pan Masala have been construed to be "food" as defined in Section 3(j) of the FSS Act, and he would place reliance on the judgment of the Bombay High Court in the case of Dhariwal Industrial Limited & Anr. v. State of Maharashtra & Ors. (Judgment dated 15/09/2012 in Writ Petition No.1631 of 2012) to submit that the said products can be subjected to the regime of FSS Act. Mr. Thakare would also contradict the submission of Mr. Ponda by advancing a submission that Section 328 of the IPC intends to cover an act where a person consume a thing like poison or any stupefying, intoxicating or unwholesome drug, which causes a hurt to such person and any person who administers or causes to be taken such a substance by any person knowing that it is likely to cause hurt would be brought within the ambit and scope of Section 328 of the IPC and liable for punishment under the said section, which is cognizable and non-