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Anand Ramdhani Chaurasia and Ors. Vs. The State of Maharashtra and Ors. - (High Court of Bombay) (13 Sep 2019)

Mere storage cannot be construed as an attempt to commit an offence under Section 328 of IPC

MANU/MH/2572/2019

Criminal

The Petitioners, who are arraigned as accused in FIR registered for the offences punishable under Sections 179, 188, 273 and 328 of the Indian Penal Code, 1860 (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 And Standards Act, 2006 (FSS Act, 2006) have approached present Court for quashing and setting aside the said FIR.

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 to the Notification dated 20th July, 2018 issued by the Food Safety Commissioner, State of Maharashtra. Pursuant to the registration of the FIR, the Petitioners came to be arrested and were released on bail. The petition poses a challenge to the action initiated against them by registering the FIR and invoking and applying Section 328 and Section 188 of the IPC.

Whether the violation of order issued by the Food Safety Commissioner in exercise of powers conferred under Section 30(2)(a) of the FSS Act which prohibits the manufacture, storage, distribution, transport or sale of tobacco either flavoured, scented or mixed with any of the said additives and whether known by any name whatsoever, Gutka, Pan Masala, manufactured chewing tobacco with additives, kharra or otherwise, whether packaged or unpackaged and/or sold as one product for its consumption would attract the provisions of Section 328 and Section 188 of the IPC.

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.

In the case of Malkiat Singh, the Apex Court has held that the preparation, according to the Apex Court would consists in devising or arranging the means or measures necessary for the commission of the offence whereas an attempt is a direct movement towards the commission after the preparation was made. The storage of the prohibited substance could not therefore be brought within the purview of an attempt to commit an offence under Section 328 and nevertheless it do not attract Section 328 of the IPC.

A close analysis of the Section 188 of IPC would reveal that, whoever disobeys an order promulgated by a public servant directing to abstain from certain acts, or to take certain orders with certain property in his possession, disobeys such direction, would attract Section 188, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of it, to any person lawfully employed and if such disobedience causes or tends to cause danger to human life, health or safety shall be punished under the said section.

The FIR lodged against the Petitioners alleges only storage. Undisputedly, there is a disobedience of an order which prohibits storage of tobacco, Pan Masala and Gutka. 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.

The Apex Court in Joseph Kurian Philip Jose, has succinctly drawn a distinction in the two terminologies applied by Section 328 of the IPC in the form of direct and indirect methods and the said judgment continues to be an authoritative and binding precedent till date. Resultantly, the FIR registered against the Petitioners only to the extent it registered offence against the Petitioners under Sections 328 and 188 of the IPC is quashed.

Relevant : Joseph Kurian Philip Jose vs. State of Kerala MANU/SC/0869/1994; Malkiat Singh and Anr. vs. The State of Punjab MANU/SC/0056/1968

Tags : FIR   PROCEEDINGS   QUASHING OF  

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