Sagar Sadashiv Kore vs The State Of Maharashtra
2021 Latest Caselaw 2091 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

         ANTICIPATORY BAIL APPLICATION NO.313 OF 2021

Sagar Sadashiv Kore                                 .... Applicant
          Versus
The State of Maharashtra                            .... Respondent
                            ______
Mr. Umesh R. Mankapure, Advocate for the Applicant.
Mrs. J.A. Lohokare, APP for the Respondent-State.
                            ______

                                 CORAM : SARANG V. KOTWAL, J.

DATE : 08th FEBRUARY, 2021 P.C. :

1. The Applicant is seeking anticipatory bail in

connection with C.R.No.9/2021 registered at Mangalwedha

Police Station, District - Solapur on 7.1.2021 under Sections

328, 188, 272, 273 read with 34 of the Indian Penal Code and

under Section 59 of the Food Safety and Standards Act, 2006

(for short, 'said Act').

2. Heard Shri Umesh Mankapure, learned Counsel for

the Applicant and Smt. J.A. Lohokare, learned APP for the

State.

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     Deshmane (PS)





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3. The FIR is lodged by Food Safety Officer Shri

Mangesh Lavate. He has stated that on 15.7.2020, a notification

was issued by the State Government under the said Act

prohibiting sell, distribution etc. of Gutka, Panmasala, Scented

Taboco, Sented Supari etc.. On 7.1.2021, at about 3:30 p.m.,

the informant went to Mangalwedha police station on

requisition of the police officers. He was informed by the police

officers that on that day at about 10:30 a.m. the villagers of

Hunoor village had apprehended one person. He was carrying

Gutka on his motorcycle. The police officers had gone there.

They found, that, the said person was carrying gunny bags. His

name was Arjun Sabale. He did not have documents or bills for

those goods. On search of those bags, it was found that he was

carrying 36 packets of Panmasala of one company, 17 packets of

Panmasala of another company and 17 packets of tobacco.

Thus, he was carrying the banned articles worth Rs.7,020/-.

The samples were drawn. On enquiry, the police officers were

told that these goods were supplied by the present Applicant.

On this basis, the FIR is lodged.

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4. Shri Mankapure submitted that the offence under

Sections 188, 272 and 273 of IPC are bailable. So is the offence

under Section 59 of the said Act. His main thrust of argument

was that Section 328 of IPC is not attracted in this case. He

relied on various judgments in that behalf.

5. Learned A.P.P. opposed this application. She

submitted that recently a Single Judge Bench of this Court has

taken into consideration the history behind such judgments and

has held in the case of Vinod Ramnath Gupta Vs. State of

Maharashtra decided on 6.11.2020 in ABA (St.) No.2451/2020

that in such a case Section 328 of IPC is attracted and,

therefore, it is a non-bailable offence.

6. Shri Mankapure relied on various judgments in

support of his case, which are discussed in the following

paragraphs.

7. I have considered these submissions. The controversy

basically is in respect of interpretation of Section 328 of IPC.

There are different judgments of different Benches of this Court

regarding interpretation of Section 328 of IPC.

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8. The main plank of arguments of Shri Mankapure is

the judgment of a Division Bench of this Court in the case of Anand Ramdhani Chaurasia and another Vs. State of Maharashtra

and others passed in Criminal Writ Petition No.3607/2019

pronounced on 13.9.2019. In this judgment, it was held that

Section 328 of IPC, in such cases, is not attracted because it

could not be said that the accused in such cases caused any

person to consume these banned articles.

9. The judgment in Anand Chaurasia (supra) was

followed by another Division Bench of this Court (Aurangabad

Bench) in the case of Ganesh Pandurang Jadhao and another Vs.

State of Maharashtra and others in Criminal Writ Petition

No.1027/2015 pronounced on 15.10.2020.

. Shri Mankapure relied on interpretation of Section

328 of IPC mentioned in these two judgments.

10. In respect of these two judgments, there is further

development. Anand Chaurasia's judgment (supra) was carried

before the Hon'ble Supreme Court and following order was

passed on 31.8.2020 as follows :

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" Delay condoned.

Issue notice.

Until further orders, there shall be a stay of operation of the impugned judgment and order passed by the High Court of Judicature at Bombay."

11. When the judgment was pronounced in Ganesh

Jadhao's (supra), learned APP for the State prayed for stay of

said judgment by pointing out this particular order dated

31.8.2020 of the Hon'ble Supreme Court. Even the judgment in

Ganesh Jadhao's (supra) was challenged in the Hon'ble Supreme

Court by the State of Maharashtra and on 7.1.2021 following

order was passed :

" Issue notice.

Until further orders, there shall be a stay of operation of the impugned judgment(s) and order(s) passed by the High Court.

Tag with SLP (Crl.) Diary No.8224/2020"

12. In the meantime, a Single Bench of this Court had

an occasion to deal with this aspect again in the case of Vinod

Gupta (supra). The learned Single Judge heard this matter and

passed his order on 6.11.2020 holding that in such cases,

Section 328 of IPC is made out. In this case, extensive

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arguments were heard and even Anand Chaurasia's judgment

(supra) was cited and considered. The reasoning is given by the

learned Single Judge in paragraphs-10 to 12 of this judgment,

which are reproduced as follows :

"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 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,

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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'.

11. The facts of the case show, substantial quantity of unsafe food has been recovered by the State from the coaccused, 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 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

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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 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."

. The learned Single Judge has considered Anand

Chaurisia's case (supra) in his judgment.

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13.            Section 328 of IPC reads thus :

"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 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."

14. I am in complete agreement with the reasoning

given by the learned Single Judge in the case of Vinod Gupta

(supra).

15. A similar reasoning was given by another Division

Bench of this Court (Aurangabad Bench) in the case of Vasim

s/o. Jamil Shaikh Vs. State of Maharashtra and another passed in

Criminal Application No.4353/2016 decided on 29.11.2018.

This judgment, in turn, had relied on the order passed in Zahir

Ibrahim Panja and others Vs. State of Maharashtra and another as

decided in Criminal Application No.4986/2016. A reference was

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made in that judgment to the purpose for issuing such orders of

prohibition. It was noted that the State Government had

considered the research material of Tata Memorial, Tata

Institute of Fundamental Research, research work done by

James E. Harner and many other institutes from India and

abroad. It was observed that scientifically it was established

that areca nut chewing has been classified as carcinogenic to

humans. Tobacco and such food, substance like Pan Masala and

Gutkha which contain the substance cause cardiac arrest, oral

cancer, esophageal cancer, stomach cancer and other diseases.

They cause diseases of various internal organs and glands also.

The study revealed that in India in the year 2011, the amount

has been spent on treatment in respect of such diseases for

persons of age group 35 to 69 was Rs.1,04,500/- Crores. With

these observations, the Division Bench in Vasim Shaikh's case

(supra) had observed that even Section 328 of IPC is applicable

in such cases.

16. Consideration of these judgments assumes

importance because Vasim Shaikh's case (supra) was cited in

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Anand Chaurisiaya's case (supra). The Division Bench in Anand

Chaurisiaya's case (supra) had held that Vasim Shaikh's case

(supra) was per incuriam.

17. Now importantly the Hon'ble Supreme Court has

stayed the operation of the judgment and order in Anand

Chaurisia's case (supra). Thus, it means that the ratio laid down

in Vasim Shaikh's (supra) case stands revived.

18. Shri Mankapure submitted that stay of operation of

the judgment and order passed in both Anand Chaurasia's case

(supra) and Ganesh Jadhao's case (supra) does not mean that

those judgments do not exist and also does not meant that their

ratio is not applicable. In support of this submission, he relied

on a decision of Hon'ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India, Trust Association

CSI CINOD Secretariat, Madras, as reported in (1992) 3 SCC 1. He

relied on the observations of Hon'ble Supreme Court in

paragraph-10 of that judgment. Relevant portion of that

paragraph is thus :

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"......... The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. ........"

. This judgment in Shree Chamundi Mopeds Ltd (supra)

was followed in few other judgments on which Shri Mankapure

relied, but, his contention was mainly based on the observations

made by the Apex Court in paragraph-10 of Shree Chamundi

Mopeds Ltd.'s case (supra).

19. I am unable to agree with Shri Mankapure on this

submission. The judgment in Shree Chamundi Mopeds Ltd

(supra) itself clarifies that stay of operation of an order means

that the order which has been stayed would not be operative

from the date of passing of the stay order. This sufficiently

clarifies the position. The Hon'ble Supreme Court stayed

operation of judgment and order in Anand Chaurisia's case

(supra) on 31.8.2020. The incident in the present case is of

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7.1.2021. Therefore, obviously operation of Anand Chaurasia's

judgment was stayed on that particular date. The mandate of

the Hon'ble Supreme Court's order passed in Anand Chaurasia's

case (supra) is clear enough. It was specifically observed that

there shall be a stay of operation of the impugned judgment and

order passed in Anand Chaurisia's case (supra). In this view of

the matter, since Anand Chaurisia's case (supra) does not

operate at this point of time; and since I am in total agreement

with the ratio laid down in Vinod Gupta's case (supra) and Vasim

Shaikh's case (supra), in this case Section 328 of IPC is attracted.

The offence is serious. These offences need to be curbed for

social welfare and health of the society particularly in today's

era of COVID-19 pandemic. No leniency can be shown in these

matters. The supply of such products has to be stopped. The

Applicant is alleged to be one of the suppliers and, therefore, his

custodial interrogation is necessary. Hence, no case for

anticipatory bail is made out. The Application is rejected.

(SARANG V. KOTWAL, J.) Deshmane (PS)

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