The court affirmed that Section 328 of IPC applies to those involved in the illegal manufacturing and distribution of contraband substances, emphasizing the necessity of proving intent to cause harm.

COMMON ORDER :

1. These applications are preferred under Section 438 of the Code of Criminal Procedure (for short “Cr.P.C.”) seeking anticipatory bail in connection with the First Information Reports (for short “F.I.R.”) against them. In all these applications, the offences were registered under Sections 26 (2) (iv), 27 (3) (d), 27 (3) c), 30 (2) (a), Sections 3 , 59 of the Food Safety and Standards Act , 2006 (7) and under Sections 188 , 272, 273, 328 of the Indian Penal Code (for short “I.P.C.”).

2. Since common question is involved in all these applications, they were heard together and disposed of by common order.

3. The common grounds urged in these applications seeking anticipatory bail are as follows :

(I) The police officer could not have registered offences punishable under Sections 188 , 272, 273, 328 of the I.P.C. since the Food Safety Standards Act makes the provision for initiating action for such acts and recourse could have been taken under the said provisions only.

(ii) Except Section 328 of I.P.C. all the other offences are bailable in nature.

(iii) The offence under Section 328 of I.P.C. is not attracted applicable in the facts of these cases.

4. Learned Advocate for the applicant in ABA No. 1405/2021 submitted that mens rea is necessary to constitute offence under Section 328 of I.P.C. There is no consumption of prohibited substance. Basic ingredients of Section 328 of I.P.C. are absent. He relied on decision of Apex Court in the case of Joseph Kurion Philip Jose vs State of Kerala , AIR 1995 (SC) 4. Learned Advocate for applicant in ABA No. 1122/2021 submitted that the applicant is owner of vehicle. Other accused were arrested and (8) released on bail. He was granted interim relief and he has co- operated with investigation. Learned Advocate for applicant in ABA No. 1156/2021 submitted that Section 328 of I.P.C. is non-bailable. Other offences are bailable. Incident is of 17.08.2021. F.I.R. is lodged on 20.08.2021. Sale of Gutka is banned. Other substances are not prohibited. Section 328 of I.P.C. is not attracted. Except stating that he is owner of shop, there is no role attributed to him. Learned APP Submitted that Pan Masala is banned / prohibited substance. Learned Advocate for applicant in ABA No. 1160/2021 submitted that applicant has co-operated with investigation. Learned A.P.P. submitted that, applicant ran away from the spot. Statement of independent witness shop owner is recorded. Custody of accused is required. Learned Advocate for applicant in ABA No.1165/2021 submitted that, applicant is sought to be arrested on suspicion. Transportation does not amount to commission of offence. Custody not necessary. He relied on decision of this Court in ABA No. 944/2020 and group matters dated 30.09.2021 (Coram : V.G. Bisht, J.). Advocate for applicant in ABA No. 1169/2021 submitted that Gutka was found away from shop of accused, Section 328 of I.P.C. is not applicable. It requires administration / intoxication on somebody. The police have no authority to register F.I.R. Driver was granted bail. Learned A.P.P. submitted that applicant is the owner. Custody is necessary. Advocate for applicant in ABA No. 1170/2021 submitted that Gutka is not found in his shop. Section 328 of I.P.C. is not attracted. Learned A.P.P. submitted that applicant is named in F.I.R. He was involved in similar crime. Learned Advocate in ABA No. 1221/2021 submitted that there is no evidence against applicant. His name is allegedly disclosed by co-accused. There is delay in F.I.R. He is ailing. He has undergone kidney transplant. Section 328 of I.P.C. is not applicable. Intenti