Smoking Tobacco=Not ‘Food’: Discharge Upheld by Bombay HC.

⚖️Case Study: Raju Yemulwar & Kushal Patel v. State of Maharashtra
Bombay High Court, Nagpur Bench (2026)

📌 Background

  • Crime No.907/2020 registered at Wani Police Station.
  • Applicants charged under Sections 188, 269–273, 328 IPC and Sections 130 & 177 Motor Vehicles Act.
  • Allegation: possession of contraband “smoking tobacco” during COVID‑19 lockdown.

⚖️ Issues

  • Whether smoking tobacco falls under “food” prohibited by FSS Act, 2006 notification dated 15/07/2020.
  • Whether prosecution under Section 188 IPC can be initiated via FIR instead of complaint by a public servant.
  • Applicability of Section 328 IPC (administering poison/intoxicant).

🗣️ Contentions

  • Applicants: Smoking tobacco is not prohibited under FSS Act; Chemical Analyzer’s report confirms it is not “food.” FIR under Section 188 IPC is legally impermissible.
  • State: Offences also cover violation of lockdown orders under Disaster Management Act and Epidemic Diseases Act. Trial Court rightly rejected discharge.

📜 Court’s Observations

  • Chemical Analyzer’s report (03/11/2020) and Food Safety communication (03/05/2021) confirm seized material is smoking tobacco, not food.
  • FSSAI clarification (23/03/2026) states flavoured hookah tobacco is outside FSS Act.
  • Section 195 CrPC requires written complaint by public servant for Section 188 IPC; FIR not maintainable.
  • Section 328 IPC not attracted as smoking tobacco is neither poison nor stupefying drug.
  • Other IPC/MVA offences are non‑cognizable and require Magistrate’s permission.

🧾 Conclusion

  • High Court held Trial Court erred in mechanically rejecting discharge.
  • Applicants discharged from all offences.
  • Order dated 28/01/2026 quashed.

🔑 Key Takeaways

  • Smoking tobacco ≠ food under FSS Act.
  • Section 188 IPC requires complaint, not FIR.
  • Chemical Analyzer’s report is decisive in contraband cases.
  • Judicial scrutiny ensures mechanical trial court orders are corrected.

📣 Hashtags

#BombayHighCourt #CriminalLaw #FoodSafety #IPC #CaseStudy #LegalUpdates

📌 Official Copy of judgement 👇

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