ORDER

This criminal original petition has been filed to quash the proceedings in crime No.334 of 2021 pending investigation on the file of the respondent / police, registered for the offence under Section 328 of IPC and Sections 7(5) and 20(2) of Cigarette and other Tobacco Products Act, 2003 insofar as the petitioners.

2. The case of the prosecution is that when the respondent police was in Patrol, they found the shop of the 2nd accused. At that time, the 2nd accused attempted to close his shop on seeing the respondent police. On check, he had a stock of 3 ½ sack of Pasumark Tobacco worth Rs. 28,000/- and 925 pockets of Kamatchi Tobacco worth Rs. 2,000/-, totally amounting to a sum of Rs.30,000/-, wherein the 2nd accused voluntarily confessed that those Tobacco were stocked in his shop for the purpose of retail sale and the said product will endanger the life of the persons who consume it and also confessed that he can identify the 1st accused who actually supplied the said tobacco to the 2nd accused and as such, based on confession, the present petitioners have been implicated as accused.

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 other matters at Principal Seat of this Bench on 15.9.2012. This decision is not referred in the case of Ganesh cited supra. At Principal Seat, in this case not only the provisions of the Act ar