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6. The leanred counsel at the outset submits that none of the AJN 7/37 903 Cri.

WP3607.19(J).doc aforesaid judgments take into account the observations of the Apex Court in the case of Joseph Kurian Philip Jose v. State of Kerala reported in (1994) 6 SCC 535 in which the Apex Court had an occasion to deal with Section 328 of the IPC in the backdrop of the Kerala Abkari Act. Mr. Ponda would submit that the invocation and applicability of the provisions of IPC along with the provisions of FSS Act is a possibility but he would canvass before us that the ingredients of the two sections must be made out in order to invoke and apply Section 328 and Section 188 of the IPC to the Petitioners, who have been arraigned as accused. As far as Section 328 of the IPC is concerned, Mr. Ponda would submit that the said Section can be bifurcated to cover two acts, one by a direct method and another by an indirect method. He would submit that for the direct method to be attracted, there must be administration to another of one of the substance mentioned and an indirect method would involve a person causing one of the substance to be taken by any other person. He would further submit that in both these methods, the substance enumerated in the section must be consumed and, in the first case, it is taken without the intervention of the third person and it presupposes involvement of the accused and the victim whereas in the second case, where the substance must be "caused to be taken", which necessarily involves a third person who is also involved in the act of the victim taking the said substance. Mr. Ponda would attribute the distinct connotation of the term AJN 8/37 903 Cri. 


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compoundable. He has placed reliance on a series of judgments of this Court taking a view that in the present set of facts, Section 328 of the IPC is attracted.

8. Mr. Thakare, learned Public Prosecutor has invited our attention to the definition of the term 'hurt' under Section 319 of the IPC to mean any hurt bodily pain, disease or infirmity caused to any person and he would assert that when the entire scientific data has been analyzed and contained in the Notification issued by the Food Safety Commissioner, which is demonstrative of the ill-effect of use of such food substance and the Commissioner of Food Safety in the interest of public health has prohibited manufacture, storage, distribution, transport or sale of any such article or food which is either tobacco or known by whatsoever name or whatsoever form, is sold in the market, then according to Mr. Thakare, the Petitioners are covered by the provisions of the penal code contained in Sections 328 and 188 of the IPC and he would pray that the petition be dismissed.

21. Section 328 of the IPC finds place in Chapter XVI under caption "Causing hurt by means of poison, etc". The offence under Section 328 IPC is cognizable, non-bailable and non- compoundable. We can analyse the said section by dissecting it into two parts, first part viz. "whoever administers to" and second part "or causes to be taken by any person". The first part uses the terminology 'Administers to'. The Cambridge Dictionary defines the term 'Administer' to mean to control the operation or arrangement of something and its colloquial meaning is to cause someone to receive something. The Collins Dictionary defines it to mean 'to direct or control or to put into execution; dispense'.

WP3607.19(J).doc knowledge."

The term 'causes' thus demand some action - some involvement and when we refer this term in Section 328, the upshot is that Section 328 of the IPC gets attracted in two possibilities one of direct administration of anything with an intent to cause hurt or indirect causation of a thing to be taken by any person with an intent to cause hurt. It is only in the presence of two aforesaid ingredients, the section gets attracted and in the absence of any 'administration' to another or the accused 'causing' any person to take the substance, person cannot be made liable for an offence under Section 328 of the IPC. The act of storage which is alleged against the Petitioners fall short of the ingredients of Section 328 of the IPC. Mere storage without any further action and on a contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetched consequence of an act of 'administering' or 'causing to be taken'.