Madras High Court
Krishnakumar Thupay vs The Inspector Of Police on 21 June, 2022
Crl.O.P.(MD)No.12686 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/06/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.12686 of 2018
and
Crl.MP(MD)No.5764 of 2018
Krishnakumar Thupay : Petitioner/Accused/Accused
Vs.
The Inspector of Police,
Thilagar Thidal Police Station,
Madurai City,
(Crime No.751 of 2017) : Respondent/Complainant/
De-facto Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in PRC No.16
of 2018 on the file of the Judicial Magistrate No.2,
Madurai, in Crime No.751 of 2017 on the file of the
Inspector of Police, Thilagar Thidal Police Station,
Madurai and quash the same as illegal.
For Petitioner : Mr.K.R.Laxman
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
O R D E R
This criminal original petition is filed seeking
quashment of the case in PRC No.16 of 2018 on the file of
the Judicial Magistrate No.2, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
2.The case of the prosecution in brief:-
On 29/07/2017 at about 11.00 am, when the police party
made a search in the shop located within the jurisdiction
of the Thilagar Thidal police limit, they found the accused
in possession of 16 tins of BABA 120 Power Tobacco, 12 tins
of BABA 54 Power tobacco, BABA 160 power tobacco 4 tins,
and 2 tins and tobacco pocket ½ kgs were seized and sent to
the forensic science laboratory for examination and it was
found that it contains nicotine and arecoline. Tobacco
substances are dangerous to the human life and consumption.
Based upon which, a case was suo motu registered in Crime
No.751 of 2017. After completing the formalities of the
investigation, final report has been filed stating that the
accused has committed the offences under section 328 IPC
and section 24(1) of Cigarette and other Tobacco Products
Act, 2003, in PRC No.16 of 2018 and it was taken on file by
the Judicial Magistrate No.2, Madurai.
3.Seeking quashment of the same, this petition has
been filed mainly on the ground that the allegations
mentioned in the final report does not attract the penal
provision under section 328 IPC and section 24(1) of the
Cigarette and Other Tobacco Products Act, 2003.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
4.Heard both sides.
5.Even though, an elaborate argument has been advanced
by the learned counsel appearing for the petitioner on the
basis of several judgments rendered by the various High
Courts as well as the Hon'ble Supreme Court, I am of the
considered view that after going through the records,
hearing the arguments and the latest position of the issue,
the matter can be disposed of, on a short premise.
6.For the purpose of better understanding the issue,
let us start the discussion on the basis of the judgment
rendered by the High Court of Telangana in the case of
Kamadhenu Traders Vs. State of Telangana and others
[2022(1)ALT 112]. The ill effects of tobacco and tobacco
products were felt from time immemorial and various
legislations were enacted to control the manufacturing,
storying of the tobacco and tobacco products. Originally,
during the era of Godawat Pan Masala Products I.P Vs. Union
of India and others (Appeal civil) 4674 of 2004, regarding
the definition of food under the provisions of Prevention
of Food Adulteration Act, 1954 was under consideration.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
7.The Hon'ble Supreme Court, on the basis of the
definition under the provision of the Prohibition of Food
Adulteration Act, found that the tobacco and tobacco
products did not fit into the definition. But later, new
Act has been brought in 2006 namely the Food Safety and
Standard Act, 2006, wherein entirely new dimensions have
been given to the definition of food and now, whether the
tobacco and tobacco products will fit into the definition
is under consideration by the Hon'ble Supreme Court, which
is admitted by both sides during the course of arguments.
8.The learned counsel appearing for the petitioner
would submit if the court directs, he can wait till the
disposal of the matter by the Hon'ble Supreme Court. A
similar contention has been raised before the Telungana
High Court over the issue. But however, the matter is of
the year 2018 and the offence is of the year 2017. Five
years lapsed and there is no point in keeping the matter
pending, when the process of committal is underway. This
court directed the parties to get along with hearing. On
that ground, it was heard.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
9.Now the position as to whether the tobacco and the
tobacco products will fit under the definition of food,
even though under consideration of the Hon'ble Supreme
Court, it has been held that more than one occasions, it is
fit into the definition as defined under the above said
Act. Moreover, the contention on the side of the petitioner
that when a specific special Act has been enacted to deal
with the tobacco and tobacco products namely the Cigarette
and other tobacco products, prohibition of advertisement
regarding trade and commerce, the Cigarettes and Other
Tobacco Products Act 2003 has been brought into
inexistence, then the provisions of Food Safety and
Standard Act, 2006 does not apply and has also been
negatived by various courts, including by a Division Bench
of this court, which was subsequently referred by a single
Judge of this court in the case of Jeetmal Ramesh Kumar Vs.
The Commissioner, Food Safety and Drug Administration
Department, Chennai in WP(MD)No.778 of 2019, dated
14/02/2019.
10.So we need not go into the controversy now, since
the matter has been seized by the Hon'ble Supreme Court. As
on date, the judgment rendered by this court and several
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
other courts stands. So, we can proceed on that basis. Even
though the issue, that has been raised by the petitioner is
not directly connected with the crime, now alleged against
the petitioner, the learned counsel appearing for the
petitioner wanted to stress upon the fact to the effect
that since Act has been brought into force, the Food Safety
and Standard Act, 2006, as mentioned earlier, will not
apply, but we need not go to the controversy now,
especially in this matter.
11.Before we go into the main issue, the back ground
must also be taken into account again. The reason being
that the Hon'ble Supreme Court in the case of Ankur Gutka
Vs. Indian Asthma Care Society (SLP No.16308 of 2007, dated
07/12/2010) has directed the Government of India to make a
study with regard to the harmful effect or human life by
the use of the Gutka, tobacco, panmasala and similar
articles. In pursuance of the above said direction, a
detailed study was undertaken and a report was also filed
before the Hon'ble Supreme Court.
12.On going through the report, the Hon'ble Supreme
Court, by order, dated 03/04/2013 in the above said
recommendation, directed the Health Department of the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
States and Union Territories, to file affidavits with
regard to the compliance of the ban imposed on
manufacturing and sale of gutka and panmasala with tobacco
and/or nicotine. In pursuance of the above said direction,
several State Governments issued notifications, orders
under the provisions of the Food Safety and Standard Act,
2006. The notification, that was issued by the Government
of Telungana in compliance of the above said order was
under challenge in Kamathenu Traders case. Here, in Tamil
Nadu, in No.VI(1)155(a)/2017, a similar notification was
issued on 23/05/2017, banning and prohibiting the
manufacture, storage, transport, distribution or sale of
Gutkha, Panmasala, Chewing Tobacco, containing tobacco or
nicotine as ingredients for a period of one year with
effect from 23rd May 2017. This is the continuation of the
ban order. It is seen that on the date of the inspection
and seizure and registration of the case, the ban was in
force.
13.The learned counsel appearing for the petitioner
would submit that he was issued with the licence by the
competent authority under the provisions of Food Safety and
Standard Act, 2006 to run a pan centre namely Banarasi Pan
Centre originally. It started in 2012 and periodically
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
licence has been renewed. But on the date of the inspection
and seizure, the licence was not in force, because it ended
in March 2017 and in May 2017, the ban order came into
force and technically, the storage of tobacco become
illegal. So the offence under the provisions of the COTPA,
2003, will be attracted and there can be no second opinion
on that. What provision attracts to the facts and
circumstances is for the committal court or for the trial
court to frame proper charge, even though the charge
mentioned in the final report, is supported by documentary
evidence or statement of witnesses. So, on that ground, the
proceedings cannot be quashed.
14.Now the only point that got to be decided is
whether section 328 IPC can be made applicable.
15.Section 328 IPC is extracted hereunder:-
“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
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
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.”
16.The learned counsel appearing for the petitioner
would submit that at no stretch of imagination, storage of
the tobacco product will attract the ingredients of the
offence under section 328 IPC. For that purpose, he would
rely upon several judgments.
17.In Criminal Writ Petition No.1027 of 2015, dated
04/03/2016 in the High Court of Judicature at Bombay Bench
at Aurangabad in the case of Ganesh Pandurang Jadhao and
another vs. The State of Maharashtra, through the Principal
Secretary, Food & Drugs Department, Mantalaya, Mumbai-323
and others, wherein a similar question arose. The subject
matter was Gutka and panmasala. The court held that cutka
and panmasala are not intoxicating drugs. So, section 328
IPC cannot be made applicable.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
18.The next judgment, which has been cited in the
order in Criminal Writ Petition No.3607 of 2019, dated
13.09.2019 on the file of the High Court at Bombay (Anand
Ramdhani Chaurasi and two another Vs. The State of
Maharashtra and three others, wherein, it has been held on
a similar line that storage will not attract the
ingredients of section 328 IPC. It has been held that mere
storage without any further action will not fit into the
definition of the administering or causing to be taken. It
was on the line that it was only an attempt to sell, which
is not punishable under the provisions of the Act. There is
no sale also.
19.On a similar line, the Bombay High Court has also
held in Nilesh Vs. State of Maharashtra in Criminal
Application (APL) No.442 of 2020 is also on the very same
line.
20.Similarly, the High Court of Telangana, in Criminal
Petition No.152 of 2020, dated 15th July 2021 in the case of
Mr.Mohd. Jameel Ahamed Vs. The State of Telangana,
represented by Public Prosecutor, High Court of Telangana,
Hyderabad and another, was also dealing with the similar
issue.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
21.On the basis of the allegations mentioned in the
complaint, it was held that it does not attract the
ingredients of section 328 IPC.
22.On the basis of these judgments, the learned
counsel appearing for the petitioner wants this court also
adopt the very same approach for quashing the proceedings.
So the question, which arises for consideration is whether
the ingredients of section 328 IPC are attracted now.
23.As mentioned above, the petitioner was found in
possession of banned products, which was intended for sale,
because he obtained licence for running a panmalasa centre.
So the argument that it was only stored and no other
attempt was made cannot be accepted.
24.In this context, the observation of the Hon'ble
Supreme Court in Ankur Gutka Vs. Indian Asthma Care
Society (SLP No.16308 of 2007), was brought to the notice
for the purpose of cumulative regulations, the vendors
started selling the panmasala products separately and
tobacco products were started selling separately. So that
both can be mixed before use. On finding that this short
cut method to overcome the ban products, the above said
circular was issued.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
25.In obedience of the order passed by the Hon'ble
Supreme Court, it was also taken into account at this
stage.
26.I am unable to agree with the definition to the
effect that the word 'cause to be taken' must be given a
narrow interpretation. I am of the considered view that the
phrase 'cause to be taken' must be taken a proper meaning
keeping in mind the offence, which is sought to be
punished.
27.It is the another contention on the part of the
petitioner that absolutely, there is no intention on the
part of the petitioner to cause hurt to the purchaser. But
here, it may not be the proper approach to the issue. Here
absolutely, there is no intention on the part of the
petitioner to harm the purchaser. But in view of the ban
order imposed by the Government, he knew that because of
the harmful effect, it has been banned. So, if it is sold
in the open market, technically it will cause hurt. Such
sort of narrow interpretation should not be given in such
offences and matters. In short, exhibiting the ban products
in the panmasala shop is sufficient enough to attract the
definition of phrase 'cause to be taken'.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
28.A single judge of this court had an occasion to
consider a similar issue, in that case, a lorry was
intercepted, which was found in possession of banded
articles like tobacco and panmasala and cases were
registered for the offences under sections 273 and 328 of
IPC r/w 7 and 20(1) of COTPA Act, 2003. The petitioner
challenged the registration of the case on very many
grounds and sought quashment of the investigation. That was
negatived by this court, after elaborate discussion,
wherein the harmful effect of tobacco was also considered,
in the light of several judgments. It arrived at the
conclusion that the tobacco products are harmful, which fit
into the definition of unsafe foods.
29.With regard to section 328 IPC, para 29 is
relevant:-
“29. In order to bring home the
commission of an offence under Section
328 of the Indian Penal Code, the
prosecution must show a. that the substance
in question was a poison, or any
stupefying, intoxicating or unwholesome
drug or other thing b. that the accused
administered the substance to the
complainant or caused the complainant to
take such substance, c. that he did so with
intent to cause hurt or knowing it to be
likely that he would thereby cause hurt, or
with the intention to commit or facilitate
the commission of an offence.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
It is, therefore, essential for the
prosecution to prove that the accused was
directly responsible for administering
poison etc. or causing it to be taken by
any person, through another. In other
words, the accused may accomplish the act
by himself or by means of another. In
either situation direct, reliable and
cogent evidence is necessary. (vide Joseph
Kurian .Vs. State of Kerala reported in
(1994) 6 SCC 535). The import of the words
“other thing” occurring in Section 328 IPC
was considered by a Division Bench of the
Calcutta High Court way back in 1864 in the
case of R v Jotee Ghorae [1 Sutherland Cr,
7], wherein it was observed as under:
“The words “or other thing” must, in
my opinion, be referred to the preceding
words, and be taken to mean “ unwholesome
or other thing,” and not other thing
simply, as the Sessions Judge would
construe it, for otherwise we should be
involved in endless inconsistencies, and
the offering of a loaf of wholesome bread
might become the foundation of a criminal
prosecution.” Tobacco and Tobacco related
products have already been shown to be
“unsafe food” under Section 2(zz) of the
FSSAI Act as it falls within the net of the
expression “deleterious substance” the
ordinary, plain meaning of which was
noticed as “unwholesome or physically
harmful”. The Division Bench in J.
Anbazhagan’s case, has taken judicial
notice of the harmful and irreversible
effects of tobacco products on the human
body. Therefore, there is no difficulty in
concluding that that tobacco will fall
within the net of the expression
unwholesome”“other thing” as construed by
the Division bench in the Calcutta case.
That takes us to the next requirement ie.,
the causing of hurt (as defined in Section
319 IPC) or intention to commit or
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
facilitate the commission of an offence. It
is important to note that the word
“offence” as defined in Section 328 must
take its meaning from its definition
in Section 40 of the IPC. Section 40 of the
IPC specifically provides that for the
purposes of Section 328 IPC the word
“offence” denotes a thing punishable under
this Code, or under any special or local
law ad hereinafter defined. In other words,
the word “offence” occurring in Section
328 IPC is not confined to offences
under the Code and may extend to offences
under a special law as well. As already
noticed, Section 59 of the FSSAI Act
penalizes the manufacture, sale, storage,
distribution and import of unsafe food.
Thus an intention to commit or facilitate
the commission of an offence under Section
59 of the FSSAI Act will be covered
by Section 328 of the IPC if the other
requirements are satisfied ie., that the
accused had caused the complainant or any
other person to take the
unwholesome/deleterious substance.
30.So in the light of the above said, I am of the
considered view that this is not a fittest case to quash
the criminal proceedings.
31.In the result, this criminal original petition is
dismissed. But however the petitioner is at liberty to make
out the defences that are available factually before the
trial court at the time of framing of charge or trial. The
trial court may also frame proper charge on the basis of
the materials that have been collected by the Investigating
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
Agency. Consequently, connected Miscellaneous Petition is
closed.
32.After passing this order, the learned counsel
appearing for the petitioner would submit that he may be
permitted to re-argue the case. For that, this court has
expressed that such rehearing is not permissible. But he
was directed to go through the order and inform the court
about his choice or option.
33.After going through the orders, the learned counsel
appearing for the petitioner would submit that the
observation of this court may affect his defence during the
trial process, so he may be permitted to withdraw this
petition. Accordingly, permission is granted and this
criminal petition is dismissed as withdrawn.
21.06.2022
Internet:Yes/No
Index:Yes/No
er
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
To,
1.The Judicial Magistrate No.2,
Madurai.
2.The Inspector of Police,
Thilagar Thidal Police Station,
Madurai City,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12686 of 2018
G.ILANGOVAN,J.,
er
Crl.O.P.(MD)No.12686 of 2018
21/06/2022
https://www.mhc.tn.gov.in/judis
