Mere storage of gutka for a contemplated sale doesn't amount to an offence under Section 328 of Indian Penal Code (IPC) of hurting a person by administering or causing a person to take poison or an intoxicating substance, said the Bombay HC while partly quashing a first information report (FIR) against 2 Mumbai men.

In March, Samata Nagar police station had booked two Kandivli residents, Anand Chaurasia & Vijay Chaurasia, for illegally storing gutka, a flavoured mix of tobacco, areca nut other ingredients. The first information report (FIR) was for offences dealing with storage of unsafe foods under the Food Safety & Standards Act as well as Indian Penal Code (IPC) offences under sections 328 as well as 188 for disobeying orders of public servants.

A person found guilty under Section 328 can expect a 10-year jail term. Punishment under Section 188 is up to 6 months in jail.

Under the Food Safety & Standards (FSS) Act, storage that doesn't result in injury attracts a prison term of up to 6 months & a maximum fine of Rs 1 lakh.

Police had raided Chaurasia’s godown & found gutka & pan masala pouches stored in violation of a notification dated July 20, 2018, passed by the food safety commissioner, banning the manufacture, storage, distribution, transport or sale of tobacco in the state.

The duo approached the HC to have the first information report (FIR) quashed. Their legal team of advocates Aabad Ponda, Abhinav Chandrachud & Subhash Jadhav argued that offences under Indian Penal Code (IPC) sections don't apply. The duo was arrested on March 2 & released on bail 3 days later. Public prosecutor Deepak Thakare opposed the quashing plea.

A bench of Justices Ranjit More & Bharati Dangre on Sept 13 held it wouldn't allow the prosecution to continue for the 2 Indian Penal Code (IPC) offences of poisoning & disobeying since mere storage with a contemplated sale in the market & consequent consumption which may hurt the person was a “far-fetched’’ linkage to the section which speaks of a person who “administers” a poison or “causes it to be taken.” HC did not quash the entire first information report (FIR) though, & allowed prosecution under FSS Act. It noted “the tobacco epidemic is one of the biggest public health threat the world ever faced, killing 8 million.’’

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