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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ranjit More, Bharati Dangre, JJ.
Anand Ramdhani Chaurasia, R/o Ramadhar Chawl - Appellant
Vs.
State of Maharashtra, Through Public Prosecutor Office - Respondent
Criminal Writ Petition No. 3607 of 2019
Decided On : 13-09-2019
Food Safety & Standards Act,2006 - Section 30 – Indian Penal Code - Sections 328 and 188 - Certain property in his possession – Injury – First Information Report - Scale of human and economic tragedy that tobacco imposed is shocking - In 2003, the World Health Organization member states universally adopted the WHO Framework Convention on Tobacco Control ("WHO FCTC"), which came into force in 2005. It has currently 185 parties covering more than 90% of the world population. There is a fundamental and irreconcilable conflict between the tobacco industries interest on the one hand and public health industries interest on the other hand - Present writ petition is an illustration depicting such a conflict in the form of transportation and sale of Gutka and Pan Masala, the former being a chewing tobacco, preparation made of crushed areca nut, tobacco, catechu, paraffin wax, slaked lime and sweet or savory flavourings. It contains carcinogens, which is identified to be a cause for oral cancer and other severe negative health effects – Held, A close analysis of the said section 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 of the IPC 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 keywords being causes or tends to cause danger to human life, health or safety. The disobedience of the public order apart from attracting a penalty under Section 55 of the FSS Act would, in view of the decision of the Apex Court in Sayyed Hussain (supra), attract Section 188 of the IPC but it would have to be examined whether it falls within the mischief sought to be penalised by 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. 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 - Order accordingly
Key Points: - (!) The petition challenges actions under Sections 328 and 188 IPC in the context of prohibitions on tobacco products under FSS Act. - (!) The Court analyzes whether disobedience of a prohibitory order issued under Section 30(2)(a) of the FSS Act can attract IPC Sections 188 and 328. - (!) It discusses the definitions and elements of Section 328 (direct administering vs. causing to be taken) and cites Joseph Kurian Philip Jose for standard of proof. - (!) It references Sayyed Hassan Sayyed Subhan on permissible dual prosecutions under different enactments, but with no double punishment for the same offence. - (!) It concludes that mere storage or possession of tobacco products does not satisfy Section 328 or 188 unless there is direct or causative action leading to hurt or danger. - (!) The Division Bench’s approach to Section 328 was critiqued for missing binding precedent; the judgment ultimately exercises discretion to quash IPC charges while allowing FSS Act proceedings. - (!) The matter clarifies that the contravention under FSS Act can be pursued, but IPC charges relating to storage alone are not sustainment. - (!) The judgment cites the scheme of FSS Act sections (Sections 41, 42, 49, 59, 60, 55) and penalties for unsafe food. - (!) The final disposition includes quashing and setting aside the FIR to the extent it registered IPC offences but not prohibiting prosecution under FSS Act. - (!) The Court emphasizes that there is no bar to prosecution under IPC when FSS Act provides penalties, but not double punishment.
JUDGMENT :
Bharati Dangre, J.
The tobacco epidemic is one of the biggest public health threat the world ever faced, killing 8 million and the Report of the World Health Organization dated 26/07/2019 brings out that more than 7 million of those deaths, are the result of the direct use of tobacco. Good monitoring tracks the extent and character of this tobacco epidemic and indicates how to evolve best policies to deal with this menace. The steps taken throughout the world in the form of bans imposed on tobacco advertisement and promotion, pictorial health warning and the high rate of taxes dealing with illicit trade of tobacco, has yielded some positive results.
2. The scale of human and economic tragedy that tobacco imposed is shocking. In 2003, the World Health Organization member states universally adopted the WHO Framework Convention on Tobacco Control ("WHO FCTC"), which came into force in 2005. It has currently 185 parties covering more than 90% of the world population. There is a fundamental and irreconcilable conflict between the tobacco industries' interest on the one hand and public health industries' interest on the other hand.
3. The primary duty of every State in terms of the Directive Principles of the State Policy as enshrined in Article 47 of the Constitution being to improve public health which implicitly includes the concept of provision of measures to be taken for prevention of deterioration of citizen's health. The Food Safety Commissioner of Food & Drug Administration, Government of Maharashtra in exercise of his power to be discharged in the form of duty under Section 30(2)(a) of the Food Safety & Standards Act,2006 (hereinafter referred to as "the FSS Act,2006") in order to prohibit in the interest of public health, has issued orders from time to time in exercise of said power and has identified tobacco as one of such article of food listed at Sr.No.40 in table under sub-regulation 2.3.1 and has 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 has 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 and here we deem it appropriate to note that such notifications have been issued in the past prior to the present notification.
4. The Petitioners, who are arraigned as accused in FIR bearing 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 FSS Act,2006 have approached this Court for quashing and setting aside the said FIR.
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