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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD27 CRIMINAL APPLICATION NO.743 OF 2024Shaikh Azimoddin Shaikh Khamroddin,Age 39 yrs., Occ. Business,R/o Dadarao Plot, Iqbalnagar,Parbhani, Tq. & Dist. Parbhani. … Applicant… Versus …1The State of Maharashtra2Santosh Vitthalrao Kanakwad,Age 53 yrs., Occ. Service,Food Safety Officer,Office of Assistant Commissioner,Food & Drugs Administration,Maharashtra State, Workshop Road,Shrinagar, Nanded,Tq. & Dist. Nanded. … Respondents...Mr. S.S. Jadhav, Advocate for applicantMr. V.K. Kotecha, APP for respondent Nos.1 and 2...WITHCRIMINAL WRIT PETITION NO.198 OF 2023Shaikh Alimoddin Shaikh Khamroddin,Age 33 yrs., Occ. Business,R/o Mali Galli, Near Stadium,Parbhani, Tq. & Dist. Parbhani. … Petitioner 227_Cri.Appln_743_2024+1… Versus …1The State of MaharashtraThrough Police Station Officer,Vazirabad Police Station,Nanded, Tq. & Dist. Nanded. 2Santosh Vitthalrao Kanakwad,Age 53 yrs., Occ. Service,Food Safety Officer,Office of Assistant Commissioner,Food & Drugs Administration,Maharashtra State, Workshop Road,Shrinagar, Nanded,Tq. & Dist. Nanded. … Respondents...Mr. R.J. Nirmal, Advocate h/f Mr. S.S. Gangakhedkar, Advocate for applicantMr. V.K. Kotecha, APP for respondent Nos.1 and 2...CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.DATE:11th AUGUST, 2025ORDER : (PER : SMT. VIBHA KANKANWADI, J.)1Present Criminal Application as well as Criminal Writ Petitionhave been filed under Section 482 of the Code of Criminal Procedure, 1973for quashing the proceedings in Regular Criminal Case No.330/2023 pendingbefore learned Chief Judicial Magistrate, Nanded, Tq. & Dist. Nanded arising 327_Cri.Appln_743_2024+1out of First Information Report vide Crime No.386/2022 dated 03.11.2022registered with Vazirabad Police Station, Nanded, for the offence punishableunder Sections 328, 188, 272, 273 read with Section 34 of the Indian PenalCode, 1860 and under Sections 26, 27, 30(2)(a), 59 of the Food Safety andStandards Act, 2006. 2Heard learned Advocate Mr. S.S. Jadhav for applicant inCriminal Application No.743 of 2024 as well as learned Advocate Mr. R.J.Nirmal holding for learned Advocate Mr. S.S. Gangakhedkar for petitioner inCriminal Writ Petition No.198 of 2023 and learned APP Mr. V.K. Kotecha forrespondent Nos.1 and 2 in both matters. 3The facts leading to First Information Report are that informant,who is a Food Safety Officer, had received secret information and then carriedout raid with the help of police. Thereupon many bags containing Gutkha ofdifferent brand were found. It has been submitted that facts will not attractSection 328 of the Indian Penal Code. Reliance has been placed on thedecision of Division Bench at Principal Seat in Anand Ramdhani Chaurasiaand another vs. State of Maharashtra and others [2019 SCC OnLine Bom1857], whereby it is held that when Gutkha is found, it will not attractprovisions of Section 328 of the Indian Penal Code. It is also submitted thatthe offence under Section 188, 272, 273 of the Indian Penal Code would also 427_Cri.Appln_743_2024+1not get attracted as there was no order that was promulgated and when theoffences under Food Safety and standards Act are invoked, offence underSection 272 and 273 of the Indian Penal Code cannot get attracted. It wasalso submitted that for offences under the Food Safety and Standards Actthere has to be complaint and not First Information Report by the concernedOfficer. 4Per contra, learned APP strongly opposed the application andwrit petition and submitted that since the charge sheet has been filed, all thepoints which have been now raised can be raised before the trial Court.When Gutkha is prohibited in Maharashtra, it is with a purpose and still hugequantity of Gutkha or Pan Masala is found or brought in Maharashtrafrequently, there has to be a deterrence. Even the statements of witnesseswould show that some of the witnesses had got addicted to Gutkha and it hasaffected their health. The offence is against the society at large and,therefore, no leniency be shown. 5First of all, as regards the legal issue on Section 328 of theIndian Penal Code is concerned, we would like to say that the decision inAnand Chaurasia (supra) has been challenged before Hon’ble Supreme Courtin SLP (Cri.) No.4101 of 2020 and in the said matter there is a stay. There isalso stay to the order passed on similar lines by Hon’ble Division Bench in 527_Cri.Appln_743_2024+1Ganesh Pandurang Jadhao and another vs. The State of Maharashtra andothers in Criminal Writ Petition No.1027 of 2015 with companion mattersdecided on 04.03.2016 which has been challenged before Hon’ble SupremeCourt in SLP (Cri.) No.5861 of 2020. However, there is no stay to thedecision in Vasim Jamil Shaikh vs. The State of Maharashtra and another[(2019) ALL MR (Cri.) 381] with companion matters (to which SMT.JUSTICE VIBHA KANKANWADI was party) and, therefore, as on today till thelegal position gets clear from Hon’ble Supreme Court Section 328 of theIndian Penal Code would be applicable in such cases. Offence, therefore,cannot be quashed and set aside in respect of said Section. However, in caseof Sections 272 and 273 of the Indian Penal Code we would like to rely onthe decision in Ram Nath vs. The State of Uttar Pradesh and others [(2024)AIR SC 1652], wherein the law has been clear and it is held that the specialenactment will prevail. Further, in the case in respect of offences under theFood Safety and Standards Act is concerned, there has to be a complaint bythe concerned officer. A complaint is defined under Section 2(d) of the Codeof Criminal Procedure, which cannot be equated to First Information Reportunder Section 154 of the Code of Criminal Procedure. Here, in this case,there is First Information Report and not complaint and, therefore, except forSection 328 of the Indian Penal Code in rest of the Sections the applicationand writ petition deserve to be allowed. Hence, following order. 627_Cri.Appln_743_2024+1ORDERi)Criminal Application and Criminal Writ Petition stand partlyallowed. ii)The proceedings in Regular Criminal Case No.330/2023 pendingbefore learned Chief Judicial Magistrate, Nanded, Tq. & Dist. Nanded arisingout of First Information Report vide Crime No.386/2022 dated 03.11.2022registered with Vazirabad Police Station, Nanded stands quashed and setaside to the extent of offence punishable under Sections 188, 272, 273 readwith Section 34 of the Indian Penal Code, 1860 and under Sections 26, 27,30(2)(a), 59 of the Food Safety and Standards Act, 2006 as against applicantShaikh Azimoddin Shaikh Khamroddin in Criminal Application No.743 of2024 and petitioner Shaikh Alimoddin Shaikh Khamroddin in Criminal WritPetition No.198 of 2023. iii)Matter to proceed for the offence punishable under Section 328of the Indian Penal Code and learned Magistrate to take note of aboveobservations. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd