The Bombay High Court has held that mere possession or storage of gutka/pan masala cannot come under the definition of “danger” as contemplated under Section 188 of Indian Penal Code.
After examining the submissions and judgements relied upon by both parties, Court analysed offence contemplated under Section 328 of IPC-
“The first part of Section 328 of IPC therefore contemplates a direct involvement of a person to be brought within the purview of Section 328 of the IPC and it covers a situation of administration of one of the substance mentioned, to another. The second part of the section which uses the phraseology ’cause to be taken’ employs an indirect method where a person causes one of the substance to be taken by another person. This ‘causing’ is suggestive of involvement of a third person and, therefore, employs an indirect method.”
Further, the bench observed-
“The FIR lodged
against the Petitioners alleges only storage. Undisputedly, there is a
disobedience of an order which prohibits storage of tobacco, Pan Masala and
Gutka. Far away Nothing in the FIR attribute any other act to the Petitioners
viz. manufacture, distribution or sale. Disobedience of the promulgated order
under Section 188 of the IPC is punishable if it causes or tends to cause
danger to human life.
However, mere possession or storage cannot fall within the purview of ‘Danger’ contemplated under the said section.”
Thus, Court added :
“The goods, as long as they remain stored, do not pose any danger. The goods will have to be moved beyond the store to be sold – ‘to be purchased for consumption’ and mere storing a food item would not pose the intended danger to human life.
“The gap between the storage and the consumption by a consumer will have to be bridged before the danger or the hurt contemplated under Sections 328 and Section 188 of the IPC get attracted and it is only when the prosecution proves that it is the Petitioners who are the one who did it, their prosecution would be a success.” On this reasoning, the Court quashed the FIR to the extent it was registered for offences under Sections 328 and 188 of the IPC.