(Prayer: Criminal Original Petition is filed under Sec.482 of Cr.P.C. to call for the records pertaining to the impugned First Information Report in Crime No.203 of 2022, on the file of the Sub Inspector of Police, Melur Police Station, Madurai District and to quash the same in respect of the petitioner alone.)

1. The Criminal Original Petition has been filed to quash the FIR in Crime No.203 of 2022 for the offences punishable under sections 17(i) and 24(i) of the Cigarettes and Other Tobacco Products Act read with section 328 of IPC on the file of the 1st respondent Police in respect of the petitioner alone.

2. The 2nd respondent has suo moto registered the impugned FIR in Crime No.203 of 2022 against five accused. The case of the prosecution is that on 23.04.2022 when the Sub Inspector attached to Melur Police Station along with Constables were patrolling, they stopped the impugned vehicles. Two persons escaped but secured three accused persons namely Arunkumar, Murali and Velayutham. On searching the vehicle bearing Reg.No.TN-63-BL-7286 Bolero Pickup van it was found banned tobacco products numbering 100 bags each consisting of 15 small pockets weighing 20 grams each. The 1st respondent arrested all the three accused. On enquiry the arrested informed that the accused who escaped from the scene was one Mr.Ajithkumar and Vasanth (the petitioner herein). On the basis of the confession made by the arrested accused, the respondent has registered the case in impugned FIR against the petitioner.

3. The petitioner submitted that the petitioner along with the 5th accused had obtained anticipatory bail and was complying with the conditions. The case of the petitioner is that the petitioner is doing retail business of supplying biscuits and cool drinks to the petty shops and provisional stores throughout Sivagangai District. The petitioner is not doing any business relating to banned tobacco products and no way connected to the alleged occurrence. The petitioner is falsely implicated based on the confession of the co-accused. Though the case was registered on 23.04.2022 the respondent has not collected any material or evidence against the petitioner connecting with the crime even after lapse of more than one year and the same is under investigation till date. The petitioner had raised various grounds and prayed to quash the FIR.

4. The learned Government Advocate appearing for the 1st respondent vehemently opposed to quash the FIR and submitted that the seized materials are banned tobacco and the petitioner had committed the alleged crime.

5. The primary contention of the petitioner is that even if the allegation found in the impugned FIR is taken to be true, no offence much less the offence alleged under section 328 of IPC would be attracted. The relevant provision is extracted hereunder:

                     "Section 328. Causing hurt by means of poison, etc., with intent to commit and offence. —Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

6. The contention of the petitioner is that to attract the aforesaid penal provisions firstly there should be allegation of intention on the part of the accused to cause hurt to somebody since the section contemplates that whoever administers or causes to be taken any poison or any stupefying, intoxicating or wholesome drug. There is no such allegation that the petitioner had administered or causes poison to anybody. The petitioner had relied on the judgment rendered by the Bombay High Court in the case of Anand Ramdhani Chaurasia Vs. State of Maharashtra in Criminal Writ Petition No.3607 of 2019 dated 13.09.2019, wherein it is held that the mere storage would not attract the ingredients of section 328. The relevant portion is extracted hereunder:

                     “22. Reliance by Mr. Ponda on another Queens Bench judgment in Price (supra) which also drive home the succinct distinction between the words 'permitting' and 'causing' in the following words of Lord Widgery C.J. "It is important to note that the distinction between 'causing' and 'knowingly permitting' was very much in their Lordship's minds. It seems to me that the overwhelming opinion of their Lordships in that case was, that whatever else 'causing' might or might not involve, it did involve some active operation as opposed to mere tacit standing by and looking on. That is made good first of all by Lord Wilberforce, who said "The subsection evidently contemplates to things - causing, which must involve some active operation or chain of operations involving as the result the pollution of the stream; knowingly permitting, which involves a failure to prevent the pollution, which failure, however, must be accompanied by knowledge." The term 'causes' thus demand some action - some involvement and when we refer this term in Section 328, the upshot is that Section 328 of the IPC gets attracted in two possibilities one of direct administration of anything with an intent to cause hurt or indirect causation of a thing to be taken by any person with an intent to cause hurt. It is only in the presence of two aforesaid ingredients, the section gets attracted and in the absence of any 'administration' to another or the accused 'causing' any person to take the substance, person cannot be made liable for an offence under Section 328 of the IPC. The act of storage which is alleged against the Petitioners fall short of the ingredients of Section 328 of the IPC. Mere storage without any further action and on a contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetched consequence of an act of 'administering' or 'causing to be taken'. Mere storage cannot even be construed as an attempt to commit an offence under Section 328 of the IPC since an act would become an attempt only on a positive act being committed by a person which would have resulted in commission of offence. However, the unforeseen act beyond the control of the accused, can only be an attempt. Mr. Ponda has rightly relied upon the judgment in the case of Malkiat Singh (supra) to drive succinct distinction between the preparation and attempt to commit a crime where the Apex Court has held that only preparation is not an attempt and the test for determining whether the act constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. The transportation of paddy in violation of Punjab Paddy (Export Control) Order, 1959 and when a truck was seized in Samalkha, Punjab Boundary 32 miles away from Delhi, the Apex Court held that there was no attempt on the part of the Appellant to commit the offence of export. It was merely preparation and the preparation for committing an offence is distinct from attempt to commit it. The preparation, according to the Apex Court would consists in devising or arranging the means or measures necessary for the commission of the offence whereas an attempt is a direct movement towards the commission after the preparation was made. The storage of the prohibited substance could not therefore be brought within the purview of an attempt to commit an offence under Section 328 and nevertheless it do not attract Section 328 of the IPC.”

7. The Learned Government Advocate submitted that the narrow interpretation cannot be applied, when the petitioner was having the banned tobacco products then the section 328 is attracted and relied on the judgment rendered by Madras High Court in Crl.O.P.(MD)No.12686 of 2018 dated 21.06.2022 in the case of Krishnakumar Thupay Vs the Inspector of Police, Madurai, wherein the aforesaid judgment of Anand Ramdhani Chaurasia’s was referred and held narrow interpretation cannot be applied. The Court specifically held that in Krishnakumar Thupay’s case the accused was having license to sell the products and he had exhibited in his shop and when the shop was raided the banned products were seized, hence the Court had come to the conclusion that the product was sold by the accused and was exhibiting the products that hurt the body, hence the same would attract the ingredients of section 328. In the present case there is no allegation that the petitioner had license or exhibited the banned product. In fact, the product was inside the vehicle. As held in Anand Ramdhani Chaurasia’s case mere storage or keeping in vehicle will not come under the purview of section 328. Therefore, this Court is of the considered opinion that the said section 328 would not be attracted in the present case.

8. Further the petitioner was arrayed as accused based on the confession of the co-accused, it is settled law that mere based on confession the accused cannot be punished.

9. As far as the section 7(1) of Cigarettes and Other Tobacco Products Act the same would be attracted if the accused has not labelled the product with the warning. It is not the case of the prosecution that the petitioner has not labelled. Therefore, the same is not attracted.

10. As far as section 24(1) of the Cigarettes and Other Tobacco Products Act the same would be attracted if the accused contravened section 6 of the Act. The section 6 states if the product is sold to persons who are under 18 years and in an area within the radius of 100 yards of any educational institutions, then the said section is attracted. In the present case it is not the case of the prosecution that the petitioner sold to persons under 18 and sold in an area within the radius of 100 yards of educational institution. Therefore, the said section is also not attracted.

11. For the reasons stated supra, the impugned FIR is liable to be quashed. Accordingly, the impugned FIR is quashed and the criminal original petition is allowed. Consequently, connected miscellaneous petition is closed.