Waqar Ahmed Abdul Sattar Qureshi ... vs State Of Mah. Thr. Ps Ner Parsopant ...
2022 Latest Caselaw 3635 Bom

                                                1                                9-apl-420-22.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

              CRIMINAL APPLICATION (APL) NO. 420 OF 2022

1. Waqar Ahmed Abdul Sattar Qureshi,
   Aged about 34 years, Occ. Business,
   R/o. Walgaon Road, Amravati.

2. Mohd Faizan Mohd Idris,
   Aged about 32 years, Occ. Business,
   R/o. Anjangaon Surji, Amravati.                                       . . . APPLICANTS

                     ...V E R S U S..

1. State of Maharashtra through
   Police Station Ner Parsopant,
   Yavatmal.

2. Gopal Vinayakrao Mahore,
   R/o. Food Safety Officer,
   Food and Drug Administration,
   Yavatmal.                                                     . . . NON-APPLICANTS

------------------------------------------------------------------------------------------------
Shri Mir Nagman Ali, Advocate for applicants.
Shri M. K. Pathan, APP for non-applicant/State.
-----------------------------------------------------------------------------------------------
                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 05.04.2022

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

2 9-apl-420-22.odt

3. By this application under Section 482 of the Code of

Criminal Procedure the applicants are challenging registration of First

Information Report (FIR) No. 17/2022 registered with the non-

applicant no. 1-Police Station for the offence punishable under Sections

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

26(2)(i), 27(3)(e), 30(2)(a) and 59 of the Food Safety and Standards

Act, 2006.

4. The FIR came to be registered against the applicants with

accusations that the non-applicant no. 2, who is Food Safety Officer,

on secret information conducted raid alongwith Police and seized

prohibited food articles like banned scented tobacco and other

substance worth ₹6,42,020/- allegedly transported through Eicher6,42,020/- allegedly transported through Eicher

Truck bearing Registration No. MH-28/AB-7092 and Bolero Pick-up

Jeep bearing Registration No. MH-30/AB-4782. The non-applicant no.

2 seized the entire articles and apprehended the applicants. The

applicants have therefore challenged registration of the FIR by filing

the present application.

5. We have heard Shri Mir Nagman Ali, learned Advocate for

the applicants and Shri M.K. Pathan, learned APP for the non-

applicant/State.

3 9-apl-420-22.odt

6. Learned Advocate for the applicants submitted that no

offence could be registered under the provisions of the Indian Penal

Code. It is submitted that the essential ingredients of the offences

alleged against the applicants are not made out even if the allegations

in the FIR are taken at their face value. It is alleged that there is no

allegation that the intoxicating substance had been administered to an

individual.

7. Learned APP submitted that since the articles found in the

applicants' possession are banned in the State of Maharashtra, the

offences were registered against the applicants. The applicants

thereafter challenged the registration of the FIR by filing these

application. It is stated that the Food Safety and Standards Act is a

special law, and the Indian Penal Code is a general law, but the

offences can be registered under both the Acts. Reliance is placed on

the judgment of the Hon'ble Apex Court in the case of State of

Maharashtra vs. Sayyad Hassan Sayyad Subhan and others in Criminal

Appeal No. 1195/2018 in support of the contention that there is no bar

to a trial or conviction of an offender under two different enactments.

Reliance is also placed on the un-reported judgment of the Co-ordinate

Bench of this Court at Aurangabad Bench dated 16/10/2018 in

Criminal Application No. 4968/2016, wherein the Co-ordinate Bench

of this Court repealed the challenge to the registration of the FIR on 4 9-apl-420-22.odt

the similar grounds. It is stated that the material collected by the

answering non-applicant is sufficient to bring home the guilt in the

present crime and therefore prayed for dismissal of the application.

Learned APP placed reliance on the judgments of the Co-ordinate

Bench of this Court in Criminal Application (APL) No. 444/2014 (Sunil

Gajawani vs. State of Maharashtra & Anr.) and other connected

matters wherein this Court refused to interfere with the registration of

the offences and permitted the Investigating Agency to file the charge-

sheet. Furthermore, he placed reliance on the judgment in the case of

Mohammad Yamin Naeem Mohammad & Ors. vs. State of Maharashtra

& Ors. [2021 Cr.L.J. 1811]. He, therefore, submitted that in view of

the judgment of the Hon'ble Apex Court in the case of Sayyad Hassan

(supra) and other judgments of the Co-ordinate Bench of this Court in

Criminal Application No. 4968/2016 & Criminal Application (APL) No.

444/2014 and the judgment in the case of Mohammad Yamin (supra),

no interference is called for.

8. We have carefully analyzed the allegations in the FIR. In

substance, the allegations against the applicants are that they were

found to be in possession of the material containing Pan Masala,

Scented Tobacco, a prohibited substance in the State of Maharashtra.

5 9-apl-420-22.odt

9. In our opinion, the Co-ordinate Bench of this Court in

Mohammad Yamin (supra) was considering the challenge to the similar

FIRs containing similar allegations, and the Co-ordinate Bench of this

Court repelled the challenge by observing in Paragraphs 49 & 50 as

under:-

"49. Mr. Bhangde, learned Senior Counsel, also attacks the charging of the petitioners of offences under the Penal Code, 1860, namely, those under Sections 188, 272, 273 and 328 of the I.P.C. In respect of his contention that the petitioners could not have been charged with by an offence under Section 328 of I.P.C., he contends that the ingredients thereof as are required to be fulfilled by the requirements as spelt out from the language of Section 328 of I.P.C. have not been made out. To buttress his submission he has relied upon Anand Ramdhani Chaurasia (supra) and Nilesh Narayan Sanghvai (supra). Anand Ramdhani Chaurasia (supra) was a case for quashing the offence under Section 328 of I.P.C., wherein, on the facts of the case, it was held that since the FIR did not disclose the ingredients of Section 328 of I.P.C., the same was quashed. It is, however, worthwhile to note, though not disclosed by Mr. Bhangde, learned Senior Counsel appearing for the petitioners, but as contended by Shri Ashirgade, learned Additional Public Prosecutor, that the judgment in Anand Ramdhani Chaurasia (supra), was stayed by the Apex Court in S.L.P. (Cri) No. 004101/2020, which was filed on 28/2/2020 and registered on 1/9/2020, by an order dated 31/8/2020. In Nilesh Narayan Sanghvai (supra) the issue involved, was that, though the contraband articles such as Gutkha, Pan Masala, scented tobacco were found in the vehicle of the applicant, the offence under Section 328 of I.P.C. was not attracted, and the FIR registered for the said offence was sought to be quashed under Section 482 Cr.P.C. The Court relying upon the judgment in the case of Anand Ramdhani Chaurasia (supra), held that mere transportation, without any further action, on an apprehension that the contraband goods would be sold in the market and would be bought and consumed by a person, was too far fetched a consequence of an act of "administering", or "causing to be taken" and mere transportation could not be construed as an attempt to commit an offence under Section 328 of I.P.C.

and had quashed the FIR in respect of the offence under Section 328 of I.P.C. alone. The Court in Nilesh Narayan Sanghvai (supra), which was decided on 9/9/2020, it clearly appears, was not informed that the judgment in Anand Ramdhani Chaurasia (supra), which was being relied upon, stood stayed by an order dated 31/8/2020, by the Hon'ble Apex Court. It is needless to state here that when a Counsel places 6 9-apl-420-22.odt

reliance upon a judgment of the High Court, it is the solemn and obligatory duty of the Counsel, to the Court, to inform the position as to whether the judgment was carried to the Apex Court, and if so, the fate of the same, as on the date of deciding of the matter by the High Court. It is not permissible for a Counsel, to merely place reliance upon a judgment in support of his case and to leave it to the Court, to make efforts to ascertain whether any challenge was laid to it, before the Apex Court and to ascertain the fate of such a challenge. The Counsel would be failing in his duty both as a Counsel and as an officer of the Court, if he does so, as by citing the judgment, he is calling upon the Court, to not only to assume its correctness, but is also inviting the Court to place reliance upon what has been stated therein and render judgment in consonance thereof, that too on a premise that the same had attained finality, in absence of any further challenge.

50. That there is an order as contemplated by Section 188 of I.P.C. cannot be controverted in light of the impugned order dated 15/7/2020. The Chemical Analyser's report indicates the presence of magnesium carbonate and nicotine in the seized goods (Section 272 of I.P.C.), both of which are prohibited and are also indicative causes of cancer. The word 'noxious', means harmful (Webster), harmful to health, injurious, unwholesome, corruptive (Blacks law dictionary) or repugnant to human use. It cannot be disputed that both magnesium carbonate and nicotine are harmful to human health (see : hazardous properties and toxicity of both) (Section 273 of I.P.C.). The only question is whether the goods were sold, offered or exposed for sale, as food (Section 273 of I.P.C.) or were administered with an intent to cause hurt (Section 328 of I.P.C.). Obviously, due to the various studies made, the advertisements as issued by the Government, the films shown in Cinema halls, regarding the harmful effects of tobacco and tobacco products, it no longer can be said that any person, would now be oblivious as to the harmful effects of tobacco and tobacco products. In spite of knowing about the harmful effects, if a person transports such products, from one place to another, could it be said that such person was unaware that the same was not for sale? The word 'sale', would be applicable to a manufacturer, distributor, dealer, retailer or the shop-keeper, each of whom, performs the activity of sale, well knowing that such sale would be for human consumption. Instead of using the easier and shortest route from the point of origin to the point of destination, the use of a circuitous route, would entitle the authorities to draw an adverse inference, that the goods were intended for sale within the State, through which they were being transported and the case was not that of an inter-State transport. Too technical a meaning to the language of the relevant sections, may not be called for, considering the changing situation. The law is not static, but is a live concept, keeping in pace with the changes in the society as well as evolving technology. To fetter the law, to its literal sense or meaning, would not be apt, rather, such an 7 9-apl-420-22.odt

approach would sound its death knell. The Courts must also be alive to such changes and apply the law, accordingly."

10. We also agree with the learned APP that the Co-ordinate

Bench of this Court at Aurangabad Bench in Criminal Application No.

4968/2016 has repelled the similar challenge as regards the FIR

containing similar allegations. Therefore, in our view, whether the

substance seized by the Authorities comes within the purview of

Section 328 of the Indian Penal Code and whether the allegations

against the applicants are proved or not, the Investigating Agency

needs to be given an opportunity to prove their case in the trial.

11. Therefore, we are satisfied that prima-facie, the essential

ingredients of the offences alleged against the applicants, are fulfilled.

12. The Criminal Application is dismissed. Pending

application, if any, stands disposed of accordingly.

13. It is made clear that the learned Trial Court shall not be

influenced by the observations made in this order, and it shall be open

for the applicants to raise all contentions before the learned Trial Court

as permissible in law.

Digitally signed by JAISWAL JAISWAL RAJNESH RAMESH RAJNESH Date:

RAMESH    2022.04.07
          14:53:47
          +0530


                                   (AMIT B. BORKAR, J.)                      (V. M. DESHPANDE, J.)
  RR Jaiswal