IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.10.2023 CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P.No.12649 of 2021 and Crl.MP.No.7015 of 2021

1.Alexpandiyan

2.Manikandan ... Petitioners Vs.

1.The State, represented by The Inspector of Police, Saravanapatti Police Station, Coimbatore

2.G.Gnanaprakash ... Respondents PRAYER: Criminal Original petition is filed under Section 482 of Criminal Procedure Code, to call for the records in FIR.No.2438 of 2020 dated 28.11.2020 pending on the file of the Inspector of Police, Saravanampatti Police Station, Coimbatore District and to quash the same.

For Petitioners : Mr.R.Krishna Kumar For Respondents For R1 : Mr.A.Gopinath, Government Advocate(crl.side)

ORDER

This criminal original petition has been filed to quash the proceedings in crime No. 2438 of 2020 pending investigation on the file of the first respondent / police, registered for the offence under Section 328 of IPC and Sections 7 of Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 insofar as the petitioner.

2. The case of the prosecution is that one, G.Gnanaprakash, Sub-

Inspector of Police, on suo-motu information lodged a complaint with the first respondent as if he has obtained information that obnoxious products are being transported by Ashok Leyland four wheeler bearing Reg.No.TN41-AQ-1119 and it was an information that the prohibited products such as Pan Masala, Hans were being transported at the time of search. Further it was stated that a driver named Alex Pandian had taken a rental premises and employed some people for doing such illegal business.

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