AI Overview...
- Section 328 IPC - Main points and insights:
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The applicability of Section 328 is contested on the grounds that no consumer ingested the prohibited substances, and mens rea (intent) is required for conviction. Courts have emphasized that mere possession or sale without proof of harmful intent may not suffice to establish offense under Section 328. Several judgments highlight that knowledge of the harmful effects of substances like gutkha or pan masala is crucial for prosecution. For example, in IND_HC_HCBM030376872021 and IND_HC_HCBM010393472021, courts noted that mens rea and awareness of harmfulness are essential ingredients PATHAN SHAFI KHAN RAHEMAT KHAN vs THE STATE OF MAHARASHTRA - Bombay, RAFIQ CHAND SHAIKH Vs THE STATE OF MAHARASHTRA - Bombay.
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Application in cases involving possession, sale, or distribution:
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Courts have applied Section 328 when there is involvement in selling or transporting contraband known to be harmful, especially when evidence shows awareness of the harmful nature of such substances. The courts have also considered the broader context of laws like the Food Safety and Standards Act, 2006, and the Indian Penal Code, to determine applicability DATTATRAY PANDURANG KHANDEKAR Vs THE STATE OF MAHARASHTRA - Bombay, SANTOSH LAXMAN GAIKWAD Vs THE STATE OF MAHARASHTRA - Bombay.
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Challenges in prosecution:
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Several sources indicate that mere possession or sale, without proof of knowledge or intent, may not attract Section 328. For instance, in Thangaraj @ Thangarasu VS State, Rep. by the Inspector of Police, Namakkal - Madras, the FIR's allegations did not meet the criteria for Section 7(1) of the Food Safety Act, and provisions of Section 273 of IPC were deemed not applicable. Similarly, in Kuru Vijay Kumar, S/o. Ramalingam VS State of Telangana - Telangana, the courts emphasized that jurisdiction under Section 482 Cr.P.C. could be exercised only if the facts justify it, and in some cases, proceedings are quashed due to lack of substantive evidence.
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Anticipatory bail and legal proceedings:
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Multiple judgments involve anticipatory bail applications concerning possession of gutkha, with courts granting relief conditioned on circumstances like contribution to charitable trusts or pending investigation into illegal manufacturing and sale MANISHRAJA @ NARENDRAN Vs STATE THROUGH - Madras, Nagesh Rajshekhar Mense VS State of Maharashtra - Crimes.
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Main conclusion:
- The courts consistently recognize that for Section 328 IPC to be applicable, there must be proof of knowledge of the harmful effects and intent to commit the offense. Mere possession, sale, or transportation of gutkha or pan masala, without such mens rea, may not suffice for prosecution under Section 328. The legal position emphasizes a need for concrete evidence of awareness of harm and intent, and proceedings are often quashed if such evidence is lacking. The focus remains on the necessity of establishing mens rea to uphold convictions under this section.
References: - IND_HC_HCBM030376872021 - 00500030749 - IND_HC_HCBM010440822021 - IND_HC_HCBM010250672022 - IND_HC_HCBM010393472021 - 02100133865 - 00400064060 - 04300050254 - INDMAD00000538402
Search Results for "Section 328 Not Made out Gutkha"
• India - Bombay High Court - Bench at Aurangabad
PRAKASH D. NAIK, J
Section 328, contending that it was not applicable as no consumer actually ingested the prohibited substances. ... that mens rea is required for Section 328 not being proved in these cases - Court held that essential ingredients to substantiate ... applications were filed by various applicants involved in cases related to the possession, distribution, or sale of pan masala and ....
• India - Crimes
PRAKASH D. NAIK
nature – Section 328 of IPC can be applied in all these cases – When Legislature feels that these substances are harmful to life, ... Criminal Procedure Code, 1973 – Section 438 – Anticipatory bail Applications – FIR registered for offences ... entitled for relief under Section 438 of Cr.P.C. – Custodial interrogation of applicants is necessary – Offences are of serious ... Section 328 o....
• India - Bombay High Court
Prakash D. Naik, J
(Paras 36, 56) ... ... (B) Applicability of Section 328 IPC - Court emphasized that the offence ... - Court held that Section 328 IPC is applicable due to involvement in selling and transporting contraband products known to be harmful ... (A) Code of Criminal Procedure, 1973 - Section 438 - Food Safety and Standards Act, 2006 - Sections 3, 26(2), 27, 30, 59 - Indian ... Secti....
• India - Bombay High Court
Prakash D. Naik, J
(A) Code of Criminal Procedure, 1973 - Section 438 - Food Safety and Standards Act, 2006 - Sections 3, 26(2)(i), 26(2)(iv), 27(3) ... (d), 27(3)(e), 30(2)(a), 59 - Indian Penal Code, 1860 - Sections 188, 272, 273, 328 - Anticipatory bail applications - Offences regarding ... , and possession of banned substances - Court finds sufficient evidence against applicants; custodial interrogation necessary - Section#HL_E....
2023 Supreme(Online)(Bom) 14563 • India - Bombay High Court
PRAKASH D. NAIK, J
(Paras 36, 56) ... ... (B) Applicability of Section 328 IPC - Court reiterated that Section 328 ... 328 of IPC - Reliance on prior judgments regarding applicability of Section 328, emphasizing that knowledge of harmful effects of ... (A) Code of Criminal Procedure, 1973 - Section 438 - Food Safety and Standards Act, 2006 - Sections ....
2019 0 Supreme(Mad) 1611 • India - Madras
N.ANAND VENKATESH
For the present, it is true that the allegations made in the FIR does not attract Section 7(1) of the Act. ... Code - Sections 273 & 328 – Criminal Procedure Code - Section 482 - quash the FIR - food products containing Tobacco - stored in ... the punishment provided under Section 20(1) of the Act - provisions of Section 273 of IPC, are not#H....
2021 0 Supreme(Bom) 152 • India - Bombay
SUNIL B.SHUKRE, AVINASH G.GHAROTE
Section 3 (j) of the FSSA, in the context of Gutkha and Pan Masala, it was held as under: Section 328/
2022 0 Supreme(Telangana) 742 • India - Telangana
CHILLAKUR SUMALATHA
is not projected - Thus, having regard to settled legal position on exercise of jurisdiction and power under Section 482 Cr.P.C. ... made against petitioners does not attract to facts of case and thereby, seeking to quash proceedings that are pending against petitioners ... 409 and 420 - Excise Act, 1968 - Section 34(a) - Food Safety and Standards Act, 2006 - Section 59(1) – Criminal Pro....
2023 Supreme(Online)(MAD) 42993 • India - Madras High Court
ANTCIPATORY BAIL - COTPA ACT - SECTION 24(1) - SECTION 328 IPC - Petitioner apprehends arrest for illegal possession of 135 kilograms ... of Gutkha - Petitioner willing to contribute to charitable trust - Anticipatory bail granted with conditions. ... r/w 328 of IPC. ... respondent submitted that the accused were in illegal possession of 135 kilograms of Gutkha ... and; [g] if the a....
2018 0 Supreme(Mad) 1192 • India - Madras
INDIRA BANERJEE, ABDUL QUDDHOSE
only imperative to stop the menace of the surreptitious sale of gutkha and chewable forms of tobacco which pose a health hazard ... direct the CBI to investigate into all aspects of the offence of illegal manufacture, import, supply, distribution and sale of gutkha ... believed to cause life threatening and/or fatal ailments such as cancer, inter alia, in the State of Tamil Nadu. – Held, Underground gutkha ... (2) of section#HL_EN....
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