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WP3607.19(J).doc direction of it or towards maturing or effecting it. With the assistance of the said judgments, Mr. Ponda would asseverate that preparation to commit an offence is punishable only under Section 122 of the IPC (waging war against the Government of India) and Section 399 of the IPC (preparation to commit dacoity) and with the assistance of the aforesaid judgment, he would submit that even assuming for a moment that if there is storage of prohibited food substance by the Petitioners, it does not straight away lead to they being instrumental in people at large consuming the same and thereby attracting the provisions of Section 328 of the IPC. As far as Section 188 of the IPC is concerned, Mr. Ponda would submit that the allegations in the FIR is only restricted to the storage of the prohibited food product and by storing the said product, it may be alleged that there is disobedience of the direction issued by the Commissioner under Section 30 of the FSS Act for which a distinct course of action in terms of Section 35 of the FSS Act would lie. The disobedience qua the direction is only for the storage of the food product and nothing more than that. According to him, Section 188 of the IPC deals with punishment for disobedience of the order which is promulgated but such disobedience alone is not punishable under Section 188 of the IPC but it is punishable only when such disobedience causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed and it is only in this contingency AJN 10/37 903 Cri.

WP3607.19(J).doc the 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.

23. The argument as regards Section 188 of the IPC advanced by Mr. Ponda is also required to be considered with reference to the use of the phraseology employed in the said section. Section 188 of the IPC reads thus:

AJN 34/37 903 Cri.
WP3607.19(J).doc "188. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.

WP3607.19(J).doc 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 Masala and Gutka. Far away Nothing in the FIR attribute any other act to the Petitioners viz. manufacture, distribution or sale. Disobedience of the promulgated order under Section 188 of the IPC is punishable if it causes or tends to cause danger to human life. The section do not use the term 'likely to cause', conveying that there has to be a positive evidence of causing or tends to cause danger to human life and in absence, Section 188 is not attracted. It is not in doubt that the tobacco and its products are dangerous to human life and safety. However, mere possession or storage cannot fall within the AJN 36/37 903 Cri.