ORDER

This criminal original petition has been filed to quash the proceedings in crime No.1070 of 2017 pending investigation on the file of the first respondent police, registered for the offence under Sections 7 & 9(ii) of TN Prohibition of Smoking & Spitting Act, 2003 and Sections 353, 328, 506(i)

of IPC r/w 34 of IPC insofar as the petitioner.

2. The case of the prosecution is that on 19.05.2017 at about 07.00 p.m., when the defacto complainant, who is the Inspector of Police, received information that there was a smell coming out on account of grinding Maava in mixer and hence the defacto complainant and other police officials visited the premises at No.25, Karimedu Colony, Aanjineyar Nagar, Royapuram, Chennai, wherein they were threatened by the petitioner and another (A-2) by shouting that if the police officials catch them, they will be eliminated. They possessed Maava for sale and ingredient materials to produce Maava were also kept by them in their house. Therefore, the 2nd respondent seized those materials which were under the custody of the accused and registered FIR by arraying the petitioner as A1. Further investigation revealed that the petitioner and other accused used to sell Maava at a complex in Stanley Government Hospital and Corporation School to enrich money.

3. Though the learned counsel for the petitioner submitted that the offence under Section 328 of IPC is not at all attracted even as per the averments in the FIR, on perusal of FIR revealed that there are specific allegations in order to attract the offence under Section 328 of IPC. In this regard, this Court already dealt with Section 328 of IPC and passed detailed order in Crl.OP.No.17533 of 2019 dated 07.08.2019, wherein it is held as follows:

17.The judgment of the Bombay High Court (Aurangabad Branch) throws a lot of light in this regard. In Vasim and Others .Vs. The State of Maharashtra and Others reported in MANU/MH/3205/2018, the Bombay High Court has dealt with the very same issue, and the relevant portions are extracted hereunder:

?5. It is not disputed that in Maharashtra, there is prohibition to manufacture, possess and on sale of aforesaid food articles and the possession or sale or manufacture is made punishable under the Act. The relevant provisions of this Enactment 26 (2) (1), 3 (1) (ZZ), 27 (3) (E) r/w. 59 and 27 (3) (d) are also mentioned by the Food Safety Officer. There was no question of licence of any kind with the applicants and from the huge quantity which is recovered, it can be said that they had the intention to sell these articles as food articles.

6.In support of aforesaid submissions made by the learned counsel for applicants, he placed reliance on some observations made by the Division Bench of this Court at this seat in Criminal Writ Petition No. 1027/2015 (Ganesh Pandurang Jadhao and Anr. Vs. The State of Maharashtra and Ors.) decided with other matters on 4.3.2016. In these matters, Gutkha which is also called as Pan Masala was seized and it was seized for violation of provisions of Government notification dated 15.5.2014. The crime was registered for aforesaid offences of IPC and also for offences punishable under sections 26 and 30of the Act. In that case, the said Court observed that it cannot be said that Gutkha, Pan Masala were stupefying, intoxicating, unwholesome drug. It was also observed by that Court that intention mentioned in the aforesaid provisions of IPC to cause hurt cannot be inferred only due to possession of such articles and so the provisions of IPC are not applicable in such case. With due respect, this Court holds that those observations cannot be used in the present matters as there were some already decided cases on this point and they were not considered by the said Court and contrary observations were already made.

7.The learned APP placed reliance on the decision given in Writ Petition No. 1631/2012 (M/s. Dhariwal Industries Limited and Anr. Vs. The State of Maharashtra and Ors.) decided with othe