Bombay High Court holds that mere storage of Gutka/Pan Masala will not attract provisions of Section 188 IPC.

The Petitioners had approached the High Court of Bombay for quashing and setting aside the said FIR No.87 of 2019 registered with Samta Nagar Police Station on 02/03/2019 for the offences punishable under Sections 179, 188, 273 and 328 of the IPC read with Section 26(2)(p) read with Section 3(1)(zz)(A) read with Section 59 along with Section 26(2)(4) read with Section 27(3)(d) and Section 27(3)(E) of the Food Safety & Standards Act, 2006.
 
The FIR was registered in the backdrop of the Food Safety Commissioner of Food & Drug Administration, Government of Maharashtra, in exercise of his  power under Section 30(2)(a) of the Food Safety & Standards Act, 2006 in order to prohibit in the interest of public health, had issued orders from time to time in exercise of said power and had identified tobacco as one of such article of food listed at Sr.No.40 in table under sub-regulation 2.3.1 and had made tobacco, whether flavoured, scented or mixed with other ingredients such as nicotine, menthol, etc. and in terms of the Food Safety & Standards (Prohibition & Restriction on Sales) Regulations 2011 and had imposed a complete prohibition for a period of one year, on the manufacture, storage, distribution, transport or sale of tobacco in whatsoever form and name being available in the market.  The regime in which the present writ petition emanated had the existence of order issued by the Commissioner of Food Safety on 20/07/2018.
 
The FIR is registered on the basis of complaint received from the Food Safety Officer i.e. Respondent No.4 recording that when the residents and godown of the Petitioners was raided, Gutka and Pan Masala pouches were found to be stored and this storage contravened the Notification dated 20/07/2018 issued by the Food Safety Commissioner, State of Maharashtra. Pursuant to the registration of the FIR, the Petitioners came to be arrested on 02/03/2019 and were released on bail on 05/03/2019. 
The counsel for the Petitioners argued that the Petitioners could be made liable for the offence punishable under Section 328 of the IPC and Section 188 of the IPC and that he was ready and willing to face the contravention as contemplated under the Food Safety & Standards Act, 2006.
The High Court observed thus:
 
“The act of storage which is alleged against the Petitioners fall short of the ingredients of Section 328 of the IPC.  Mere storage without any further action and on a contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetched consequence of an act of ‘administering’ or ‘causing to be taken’. Mere storage cannot even be construed as an attempt to commit an offence under Section 328 of the IPC since an act would become an attempt only on a positive act being committed by a person which would have resulted in commission of offence. However, the unforeseen act beyond the control of the accused, can only be an attempt.”
 
“Far away Nothing in the FIR attribute any other act to the Petitioners viz. manufacture, distribution or sale.  Disobedience of the promulgated order under Section 188 of the IPC is punishable if it causes or tends to cause danger to human life.  The section do not use the term ‘likely to cause’, conveying that there has to be a positive evidence of causing or tends to cause danger to human life and in absence, Section 188 is not attracted.  It is not in doubt that the tobacco and its products are dangerous to human life and safety. However, mere possession or storage cannot fall within the purview of ‘Danger’ contemplated under the said section.  The goods, as long as they remain stored, do not pose any danger.  The goods will have to be moved beyond the store to be sold - ‘to be purchased for consumption’ and mere storing a food item would not pose the intended danger to human life.  The gap between the storage and the consumption by a consumer will have to be bridged before the danger or the hurt contemplated under Sections 328 and Section 188 of the IPC get attracted and it is only when the prosecution proves that it is the Petitioners who are the one who did it, their prosecution would be a success.”
 
  “In the light of the aforesaid position emerging from the submissions advanced before us, we do not intend to continue the prosecution against the Petitioners as it would merely amount to an abuse of process of law and the prosecution of the Petitioners under Sections 328 and 188 of the IPC, therefore, cannot continue.  We do not make any comment on the prosecution of the Petitioners under the FSS Act and we are not inclined to show any indulgence to the Petitioners on that count. The Respondent-Authorities are permitted to prosecute the Petitioners under the provisions of the said enactment.”

Anand Ramdhani Chaurasia & Anr Vs. The State of Maharashtra & Ors