Bombay High Court
Abdul Nisar Haji Abdul Kadir ... vs State Of Maharashtra Thr. P.S. ... on 12 April, 2022
Bench: V.M. Deshpande, Amit B. Borkar
1 19-apl-189-190-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 189 OF 2019
WITH
CRIMINAL APPLICATION (APL) NO. 190 OF 2019
CRIMINAL APPLICATION (APL) NO. 189 OF 2019
Abdul Nisar Haji Abdul Kadir Qureshi,
Aged about 48 years, Occ. Business,
R/o. Chikhli, Dist. Buldhana
Mob. 9028401027 . . . APPLICANT
...V E R S U S..
1. State of Maharashtra through
Police Station Buldhana City,
Buldhana.
2. Nitin Mahadevrao Navalkar,
R/o. Food Safety Officer,
Food and Drug Administration,
Buldhana. . . . NON-APPLICANTS
WITH
CRIMINAL APPLICATION (APL) NO. 190 OF 2019
Abdul Nisar Haji Abdul Kadir Qureshi,
Aged about 48 years, Occ. Business,
R/o. Chikhli, Dist. Buldhana . . . APPLICANT
...V E R S U S..
1. State of Maharashtra through
Police Station Buldhana City,
Buldhana.
2. Nitin Mahadevrao Navalkar,
R/o. Food Safety Officer,
Food and Drug Administration,
Buldhana. . . . NON-APPLICANTS
2 19-apl-189-190-19.odt
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Shri Mir Nagman Ali, Advocate for applicant.
Shri M. K. Pathan, APP for non-applicant/State.
---------------------------------------------------------------------------------------------------
CORAM :- V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATED :- 12.04.2022
JUDGMENT (PER : AMIT B. BORKAR, J.) :-
1. Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
3. Since both the applications arise out of the common
factual matrix and the First Information Reports challenged in both the
applications contain similar allegations, we are disposing them of by
common order.
4. By these applications, the applicants are challenging
registration of the First Information Reports for the offences punishable
under the provisions of the Indian Penal Code & the Food Safety and
Standards Act, 2006.
5. Since we are treating Criminal Application (APL) No.
189/2019 as a lead application, we are referring to the parties and
pleadings as stated in Criminal Application (APL) No. 189/2019. The
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First Information Report came to be registered against the applicant
on 05.02.2019 at about 01:57 hours on the information received to
Police Station Buldhana City that the applicant was found to be in
possession of the material containing flavoured tobacco, Pan Masala
etc. while going on Maruti Swift bearing registration No. MH-46/AL-
7839.
6. Since the articles found in the applicant's possession are
banned in the State of Maharashtra, the offences were registered
against the applicant. The applicant thereafter challenged the
registration of the First Information Report by filing this application.
This Court issued notice to the non-applicants, and the non-applicant-
Investigating Agency filed a reply stating that prima-facie, the
ingredients of the offences alleged against the applicant is made out. 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.
4 19-apl-189-190-19.odt
4968/2016, wherein the Co-ordinate Bench of this Court repealed the
challenge to the registration of the First Information Report on 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 applications.
7. We have heard Shri M. N. Ali, learned Advocate for the
applicant in respective applications and Shri M.K. Pathan, learned APP
for the non-applicant/State.
8. Learned Advocate for the applicant 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 applicant is not made out even if the allegations in
the First Information Reports are taken at their face value. It is alleged
that there is no allegation that the intoxicating substance had been
administered to an individual.
9. Per contra, 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
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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. reported in 2021 Criminal Law
Journal 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.
10. We have carefully analyzed the allegations in the First
Information Reports registered in both the applications. The parties to
the applications agreed that the facts and issues involved in both the
applications are similar. In substance, the allegation against the
applicants are that the applicants were found to be in possession of the
material containing Pan Masala Scented Tobacco, a prohibited
substance in the State of Maharashtra.
11. In our opinion, the Co-ordinate Bench of this Court in
Mohammad Yamin (supra) was considering the challenge to the similar
First Information Reports containing similar allegations, and the Co-
ordinate Bench of this Court repealed the challenge by observing in
Paragraphs 49 & 50 as under:-
6 19-apl-189-190-19.odt
"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 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
7 19-apl-189-190-19.odt
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 approach would
sound its death knell. The Courts must also be alive to such
changes and apply the law, accordingly."
12. 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 repealed the similar challenge as regards the First
Information Report containing similar allegations. Therefore, in our
8 19-apl-189-190-19.odt
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.
13. Therefore, we are satisfied that prima-facie, the essential
ingredients of the offences alleged against the applicants are fulfilled.
14. Both the Criminal Applications are dismissed. Rule is
discharged.
15. Pending Application(s), if any, stand(s) disposed of.
16. 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.
(AMIT B. BORKAR, J.) (V. M. DESHPANDE, J.)
RR Jaiswal
Digitally signed
by JAISWAL
JAISWAL RAJNESH
RAJNESH RAMESH
Date:
RAMESH 2022.04.13
12:33:19 +0530
