1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3762/2010 ASHOK S/O GOPINATH GAIKWAD AND OTHERS. VERSUS THE STATE OF MAHARASHTRA AND OTHERS. WITH CRIMINAL APPLICATION NO.3754/2010 ANIL MUKINDA FULARE AND OTHERS VERSUS THE STATE OF MAHARASHTRA AND OTHERS. Mr. S.W. Mundhe, Advocate for applicant. Mr. V.D. Godbharle, A.P.P. for respondents. CORAM A.V. NIRGUDE, J. Date : 24th September, 2010 ORAL ORDER. 1 Heard. 2 Pursuant to the order dated 23rd September, 2010, the investigation officer Shri Balayya has come to the Court along with the investigation papers. The learned A.P.P. informed the Court that after the raid was conducted on 03/08/2010, the Police Head Constable reported the matter to the Station house officer and on his complaint the station house officer registered an offence punishable under Section 65 (e), (f) read with Section 83 of Bombay Prohibition Act against the present applicants. Soon thereafter, Shri Balayya took over the charge of the investigation. On the next day, Shri Balayya added to the charge Section 328 of Indian Penal Code against the applicants. The question is whether the facts warranted applying Section 328 of Indian Penal Code? I asked the learned A.P.P. as to whether any additional evidence was collected by Shri Balayya after the offence was registered so as to warrant add charge under Section 328 of Indian Penal Code. 2 He answered in negative. Section 328 of Indian Penal Code reads as under:- “Causing hurt by means of poison, etc., with intent to commit an 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.” 3 By no stretch of imagination, offence under Section 328 of Indian Penal Code can be levelled against the applicants / accused because there is admittedly no administration of any poisonous or stupefying or intoxicating or unwholesome drug or other thing to any one. I am assuming that the applicants were responsible for manufacturing stupifying intoxicating or even unwholesome drug / liquor. I am also assuming that they wanted to sell this liquor to their customers. I am also assuming that the applicants / accused have knowledge that the liquor which they had manufactured would likely to cause hurt to the consumers. But in this case, there is no allegation that the consumers of the applicants had taken or consumed the liquor manufactured by the applicants. In absence of this, the application of Section 328 of Indian Penal Code to the facts of the case is patently illegal. The learned A.P.P. tried to place reliance on the judgment of Delhi High Court in th case of Kailash chand Gupta versus State reported in 2005 Cri.L.J. 2846 but having regard to the facts of the case and the discussion in the judgment, I found that this judgment is not at all applicable to the discussion before this Court. I had asked the learned A.P.P. as to whether the facts would allow his client to apply provisions of Section 328 of Indian Penal Code ? In order to answer this, the learned A.P.P. tried to interpret the provisions of Section 328 of Indian Penal Code. I have discussed 3 above as to how and under what situation the offence under Section 328 of Indian Penal Code can be leveled against an accused. 4 In view of this discussion, the applications should succeed. ORDER The offence to the extent of Section 328 of Indian Penal Code stands quashed and set aside. [A.V. NIRGUDE, J.] ts k/ok