High Court

Cri.APL1069.25.odt 1/12 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPURCRIMINAL APPLICATION (APL)NO. 1069/20251. Runal S/o Raju Zore,Aged about 30 years, Occ – Driver,R/o. C/o Raju Zore, Grampanchyat Jayal Ward No. 1, Alapalli Tq. Aheri, Distt. Gadchiroli ... APPLICANT...VERSUS…1. The State Of Maharashtra,Through Police Station Officer,Aheri Police Station,Tq. Aheri &, Distt. Gadchiroli.2. Food Safety Officer, Food and DrugAdministration (M.S), Gadchiroli ...NON-APPLICANTS---------------------------------------------------------------------------------------------Mr. Ajay S. Mohata, Advocate for applicantMr. Nikhil Joshi, APP for non-applicant/State--------------------------------------------------------------------------------------------- CORAM :URMILA JOSHI-PHALKE AND NANDESH S. DESHPANDE, JJ.RESERVED ON : 17 th DECEMBER, 2025. PRONOUNCED ON : 14 th JANUARY, 2026. Cri.APL1069.25.odt 2/12 JUDGMENT (PER : NANDESH S. DESHPANDE, J.) Heard. Admit. Heard finally with the consent of the LearnedCounsel for the applicants.2.The applicant has invoked the inherent jurisdiction of thisCourt by filing the present application under Section 528 of theBharatiya Nagarik Suraksha Sanhita, 2023, seeking quashing ofFinal Report/Chargesheet No. 100/2022 dated 15.12.2022 arisingout of First Information Report, registered as crime no. 314/2021dated 11.08.021, lodged with Police Station Officer Aheri, DistrictGadchiroli, for the offences punishable under Sections 188, 273 and328 read with Section 34 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”), as also, for offences punishableunder Sections 26(2)(iv), 30(2)(a), 3(1)(zz)(iii) and 59 of theFood Safety and Standards Act, 2006 and Rule 2, 3, and 4 of theFood Safety and Standards Rules, 2011. The applicant has furtherprayed to stay the proceedings in Sessions Case No. 52/2024pending on the files of Additional Sessions Judge, Aheri, Dist.Gadchiroli. Cri.APL1069.25.odt 3/12 3.As per the First Information Report, on 05.02.2024, Non-applicant No. 2, who is a Food Safety Officer, was informed by thePolice Station Officer, Aheri, that one Vaibhav Nandkishor Bodkhe,has stored flavoured and scented tobacco worth Rs. 39,200/- in hisshop and the same was seized by the police after conducting a raid.Upon inquiry, Vaibhav Nandkishor Bodkhe, disclosed that the saidarticles were supplied to him by one Runal Zore (present applicant).4.Upon completion of the investigation, Non-applicant No.1/Police Station Officer, Aheri, filed a charge-sheet/final report inthe matter. Being aggrieved by the registration of the FirstInformation Report and the subsequent filing of thecharge-sheet/final report, the applicant has preferred the presentapplication challenging the averments made therein.5.We have heard Mr. Ajay S. Mohta, learned counsel appearingfor the applicant, and Mr. Nikhil Joshi, learned Additional PublicProsecutor appearing for Non-applicant No. 1/State. Cri.APL1069.25.odt 4/12 6. The Learned counsel for the applicant has opposed theaverments made in the First Information Report. He states that thepresent applicant is not involved in the alleged crime and that theaccused has disclosed the name of the present applicant duringpolice interrogation. It is also submitted that except the statement,no other incriminating material has been found against the presentaplicant.7.He further states that the Food Safety and Standards Act,2006 along with the Rules and Regulations, 2011 is a specialenactment and therefore, overrides the general law i.e., IPC. It iscontended that the complainant, in collusion with the policemachinery, has deliberately invoked offences under IPC.8.Learned counsel further submits that by no stretch ofimagination can mere possession of flavoured/scented tobaccoattract the offences punishable under Sections 273 and 328 of theIndian Penal Code. To invoke Section 328 of the IPC, theprosecution is required to establish that the substance in questionwas poison or any stupefying, intoxicating, or unwholesome drug, Cri.APL1069.25.odt 5/12 that the accused administered or caused the same to beadministered to a person, and that such act was committed with theintent or knowledge to cause hurt or to facilitate the commission ofan offence. In the present case, the prosecution has failed to provethat the said articles were poison or the same was administered orcaused to be administered with the intention or knowledge of hurt,thus reflecting that the said section should not have been invoked.9.He further states that offence under Section 188 of the IndianPenal Code, 1860 could not have been registered against thepresent applicant as there is a specific bar for taking cognizance ofmatters except on a complaint made in writing by the public servantconcerned or of some other public servant to whom he isadministratively subordinate. However, no such complaint has beenlodged by the concerned public servant, therefore invocation ofSection 188 of the IPC is not tenable in the eyes of law.Furthermore, it is submitted that there exists an independentprocedure for search, seizure and sampling in the Food safety andStandards Act, 2006, as also, there is a requirement of obtainingpermission of the Food Commissioner before lodging of complaint Cri.APL1069.25.odt 6/12 by the subordinate Food Safety Officers. Despite having completeknowledge of the statutory procedure and the applicable provisionsof law, the police authorities proceeded to register offences againstthe present applicant, thereby abusing the process of law. He,therefore, prays for quashing of the concerned First InformationReport and the consequent chargesheet.10.Per contra, the learned Additional Public Prosecutor, hasvehemently opposed the submissions of the Learned Counsel for theapplicant. He states that the investigation Officer has carried outpanchanamas and seized the aforementioned banned articles andthe same has been sent to the Food and Drugs Department andaccordingly the Food Analysis Report was received by the agency.The analysis report shows the test for nicotine is positive.11.The Learned Additional Public Prosecutor further states thatduring investigation, the accused, namely Vaibhav NandkishorBodkhe, has disclosed the name of the present applicant as thesupplier of the aforesaid products even after having full knowledgethat the said tobacco products are banned in the State of Cri.APL1069.25.odt 7/12 Maharashtra.12. Lastly, The Learned Additional Public Prosecutor submits thatthe Hon’ble Apex Court has observed that if mensrea is proved bythe material collected by the Investigation Officer, Section 328 ofIPC is squarely applicable. Additionally, the present applicant hasfailed to make out any case under the seven exceptions carved outby the Hon’ble Apex Court in the judgment of State of Haryana Vs.Bhajanlal, reported in AIR 1992 SC 604, and thus the application isliable to be rejected.13.In the background of these facts, we have perused thematerial placed on record. Section 188 of IPC speaks aboutdisobedience of order duly promulgated by public servant; Section273 of IPC speaks about sale of noxious food/drink, Section 328 ofIPC speaks about causing hurt by means of poison, etc., with intentto commit an offence. Similarly, Section 3(1)(zz)(iii) of The FoodSafety And Standards Act, 2006, defines the categorization of‘unsafe food’, Section 26(2)(iv) speaks about Responsibilities of theFood business operator, Section 30(2)(a) speaks about the functions Cri.APL1069.25.odt 8/12 of the food commissioner of the State, and, Section 59 speaks aboutthe Punishment for unsafe food.14. As far as offence under Section 188 of the IPC is concerned,Section 195 of the Code of Criminal Procedure (hereinafter referredto as ‘Cr.P.C’) restrains the Court from taking cognizance of anyoffence punishable under that Section except on a complaint inwriting by the public servant concerned or of some other publicservant to whom he is administratively subordinate. Admittedly, thecomplaint in the present case is made by Suresh Torem, Food SafetyOfficer, who without acquiring the requisite permission of the FoodCommissioner of the State registered the said offence with thePolice Station. Thus, the statutory requirement under Section 195 ofthe Cr.P.C. is not satisfied. We are, therefore, of the consideredopinion that offence under Section 188 of IPC is not made out.15. As far as sections 273 and 328 of the IPC are concerned, thespecific sections are overridden by section 89 of the Food Safety andStandards Authority Act, 2006. A beneficial reference can be drawnfrom the judgment of the Hon’ble Supreme Court in the case of Cri.APL1069.25.odt 9/12 Ram Nath Vs. State of Uttar Pradesh and Others, reported in(2024) 3 SCC 50, wherein it is held that –“27. ......The title of the Section indeed indicates that the intentionis to give an overriding effect to FSSA over all “food-related laws”.However, in the main section, there is no such restriction confinedto “food-related laws”, and it is provided that provisions of FSSAshall have effect notwithstanding anything inconsistent therewithcontained in any other law for the time being in force. So, thesection indicates that an overriding effect is given to theprovisions of FSSA over any other law.”In view thereof, the provisions of Sections 328 and 273 of theIPC stand eclipsed and cannot be invoked in respect of mattersgoverned by the special statute.16.As far as offence under Section 26 (2)(i) of the Food Safetyand Standards Act is concerned, it contemplates that no foodbusiness operator shall himself or by any person manufacture, store,sell or distribute any article of food which is unsafe. Furthermore,Section 27(2)(e) states that the wholesaler or distributor shall beliable under this Act for any article of food, which is stored orhandled or kept in violation of the provisions of this Act, the rules Cri.APL1069.25.odt 10/12 and regulations made thereunder. However, in the present case,admittedly, the applicant herein is only named by the accused andno material shows that the applicant is the supplier or thedistributor of the prohibited products. In such circumstances, we areof the view that an offence under Section 27(2)(e) is not made out.17.As far as Section 59 is concerned, it speaks about punishmentfor unsafe food and is general in nature. It provides that any personwho, whether by himself or by any other person on his behalf,manufactures for sale, or stores, or sells or distributes or importsany article of food for human consumption which is unsafe, shall bepunishable as provided under the said section. Here in the presentcase, no independent material, as far as the applicant is concerned,is placed on record, except for the statement of one VaibhavNandkishor Bodkhe, which cannot be solely relied upon forcontinuance of criminal proceedings as far as the applicant isconcerned. Furthermore, it is pertinent to note that the name of theapplicant is only orally disclosed by him, and this oral evidencecannot be solely relied upon to continue criminal proceedingsagainst the present applicant. Cri.APL1069.25.odt 11/12 18.In that view of the matter, we are of the considered opinionthat a situation at hand would squarely within the well laid downparameters of paragraph No. 102 of the judgment reported in Stateof Haryana and others Vs. Bhajanlal and others, 1992 Supp (1) SCC335, and more particularly Clause 1, 3 and 7 thereof :(1) Where the allegations made in the first information report orthe complaint, even if they are taken at their face value andaccepted in their entirety do not prima facie constitute anyoffence or make out a case against the accused.(2) ...(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same donot disclose the commission of any offence and make out a caseagainst the accused.”(4) ...(5) ...(6) ...(7) Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with a view to spite him due to private and personal grudge. Cri.APL1069.25.odt 12/12 19. In that view of the matter, we proceed to pass the followingorder:-ORDER(i)The application is allowed.(ii) The Final Report/Chargesheet no. 100/2022 dated15.12.2022 arising out of First Information Report, registered ascrime no. 314/2021 dated 11.08.021, lodged with Police StationOfficer Aheri, District Gadchiroli, for the offences punishable underSections 188, 273 and 328 read with section 34 of the Indian PenalCode, 1860 (hereinafter referred to as “IPC”), as also, for offencespunishable under Sections 26(2)(iv), 30(2)(a), 3(1)(zz)(iii) and 59of the Food Safety and Standards Act, 2006 and Rule 2, 3, and 4 ofthe Food Safety and Standard Rules, 2011, are quashed and setaside to the extent of the applicant – Raju s/o Raju Zore.(iii) The application is disposed of accordingly.(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)Shubham