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Bombay High Court

THE STATE OF MAHARASHTRAversusMR ANURAG AWASTHI

Decided
Disposal
Disposed Off

Holding

The Court held that the State’s ban on Gutkha within Maharashtra is enforceable and the seizure of the goods was lawful, quashing the orders directing their handover to the accused.

Summary

The State of Maharashtra filed a writ petition challenging an order that directed the police to hand over interim custody of seized Gutkha (Vimal Pan Masala and Vimal Tobacco) to the accused after he executed a bond. The State argued that the goods were sold in Pune, violating the state’s ban on Gutkha under the Food Safety and Standards Act and the Cigarettes Act, while the accused contended that the goods were merely in transit from Karnataka to Rajasthan and that inter‑state transport is not prohibited. Relying on the Division Bench decision in Mohammad Yasmin Naeem Mohammad v. State of Maharashtra, the Court held that the state’s power to prohibit the sale and distribution of Gutkha within its territory extends to preventing goods from being dumped under the guise of inter‑state transport. The Court found that the seizure was lawful, quashed the orders directing the goods to be handed over to the accused, dismissed the criminal revision, and directed the destruction of the seized goods. The writ petition was allowed.

Issues considered

  • Whether the transport of Gutkha from Karnataka to Rajasthan, passing through Maharashtra, is prohibited under Maharashtra law.
  • Whether the State of Maharashtra can lawfully seize Gutkha under the Food Safety and Standards Act and the Cigarettes and Other Tobacco Products Act despite the constitutional competence of the Union over inter‑state trade.
  • Whether the Commissioner’s order creates a ban on inter‑state transport of Gutkha or merely empowers enforcement against illegal dumping within the State.
  • Whether the orders directing interim custody of the seized goods to the accused are valid.

Legislation cited

Subjects

  • Gutkha
  • inter‑state transport
  • Food Safety and Standards Act
  • Cigarettes Act
  • public health
  • constitutional law
  • Maharashtra ban
  • seizure
  • tobacco

Judgment

                                                                          4 WP-3748-2026-J.DOC
                      skt



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION
                                CRIMINAL WRIT PETITION NO. 3748 OF 2026
                      The State of Maharashtra                           …Petitioner
                      (Through Raigad Police Station, Pune)              (Orig. Complainant)

                               Vs.
                      Mr. Anurag Awasthi                                 …Respondent
                      Proprietor of Shiv Traders                         (Orig. Accused)
         Digitally
         signed by
         ARJUN
ARJUN    VITTHAL
VITTHAL  KUDHEKAR
KUDHEKAR Date:
         2026.09.11
         21:17:31
                      Mr. S.V. Walve, APP for the Applicant-State.
         +0530
                      Mr. Satyavrat Joshi (through VC) a/w. Mr. Priyesh More and Navaz
                      Durdi, for the Respondent.


                                           CORAM:      MADHAV J. JAMDAR, J.
                                           DATE :      9th SEPTEMBER, 2026
                      JUDGMENT :
                      1.    Heard Mr. Walve, learned counsel appearing for the

                      Petitioner-State and Mr. Joshi, learned counsel appearing for the

                      Respondent.


                      2.    By this Writ Petition, the State of Maharashtra has

                      challenged order dated 6th June 2026 passed by learned JMFC,

                      Court No.1, Pune in Criminal M.A. No.3069 of 2029 by which, the

                      Police Station Officer, Rajgad Police Station has been directed to

                      handover the interim custody of the Vimal Pan Masala (total 115

                      bags/Goni) and Vimal Tobacco (total 25 bags/Goni) (“Gutkha”)

                      seized in Crime No. 166 of 2026 by Police Station, Rajgad, Pune



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for the offences punishable under Sections 123, 223, 274, 275 of

Bharatiya Nyaya Sanhita, 2023 and Sections 7(2), 20(2) and 59 of

the Cigarettes and Other Tobacco Products (Prohibition of

Advertisement    and   Regulation     of   Trade    and    Commerce,

Production, Supply and Distribution) Act, 2003 and Sections 26(2)

(i), 26(2)(iv) and 59 of the the Food Safety and Standards Act,

2006 to the Respondent, after executing indemnity bond of

Rs.80,32,800/-. The said impugned order dated 6th June 2026 has

been challenged by the State of Maharashtra by filing Criminal

Revision Application No. 219 of 2026 in the Court of learned

Additional Sessions Judge, Pune at Pune and learned Additional

Sessions Judge, by impugned order dated 30 th June 2026, rejected

said Criminal Revision Application.

3.    It is the submission of Mr. Walve, learned APP that although

contention is raised that the said Vimal Pan Masala and Vimal

Tobacco were transported from Karnataka to Rajasthan, in fact, the

said Gutkha was sold at Pune and therefore offence is registered.

To substantiate, his case, learned APP pointed out that in fact 100

bags of Vimal Pan Masala and 100 bags of scented chewing

tobacco were purchased by the Respondent from Karnataka,




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however, after lodging of the F.I.R., as per the Panchnama dated

28th April 2026 only 150 bags were seized.              He, therefore,

submitted that it is obvious that the Gutkha has been sold in Pune.

He submits that sale of Gutkha is prohibited by the State of

Maharashtra. He has relied on an order passed by Commissioner of

Food Safety, Food and Drugs Administration, Government of

Maharashtra, dated 16th July 2025 (“Order dated 16th July 2025”),

by which Gutkha has been declared as having extremely harmful

effects, and therefore, the same is banned in the State of

Maharashtra.


4.    On the other hand, Mr. Joshi learned Counsel appearing for

the Respondent submitted that the said subject goods, i.e., Vimal

Pan Masala and Vimal Tobacco were being transported from

Karnata to Rajasthan and the route is through Pune, therefore, the

said goods were seized by the police officials of Rajgad police

station.   He submits that however the subject goods were not

intended to be sold in the State of Maharashtra. He submits that

the transportation of Gutkha in Maharashtra is not banned. To

substantiate said contention, he has relied on a decision of Division

Bench of this Court (Nagpur Bench) in the case of Mohammad




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Yasmin Naeem Mohammad & 3 Ors. Vs. The State of Maharashtra

& Anr. 1. He, therefore submits that the Writ Petition be dismissed.


5.     Perusal of the record shows that there is some substance in

the contention raised by learned counsel appearing for the

Respondent that the transportation of Gutkha is not banned in the

State of Maharashtra. The relevant paragraphs of judgment in the

case of Mohammad Yasmin Naeem Mohammad (supra) are

paragraphs 20 to 23, which read as under :


      “20. Article 246 (2) & (3) of the Constitution empowers

      the legislature of any State to make laws for the State or

      any part thereof, subject to clause (1) and (2) of Article

      246. Entry-42 in List I - Union List of the seventh

      Schedule [Article 246(1)] relates to Inter - State trade

      and commerce. Entry-26 in List II - State List of the

      seventh Schedule [Article 246(2)] relates to trade and

      commerce Cri. WP 543 of 2020.odt within the State,

      subject to the provision of Entry-33 of List III. Entry-

      33(b) of List III - concurrent list of the seventh Schedule




1      Criminal Writ Petition No. 543 of 2020 dt. 9th January 2021


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      [Article 246(3)] relates to trade and commerce in, and

      the production, supply and distribution of foodstuffs.

      21. The contention of Mr. Bhangde, learned Senior

      Counsel for the petitioners that by virtue of the

      impugned order, dated 15/7/2020, the State has usurped

      the power of the Union by making a law prohibiting

      inter-State trade and commerce, which is solely within

      the domain of the Union, is not correct. This is so for the

      reason, that the FSSA is a Central Statute enacted by the

      Parliament and by virtue of Section 30(1) of the FSSA,

      certain powers have been delegated to the State and it is

      under these powers, that the Commissioner for Food

      Safety has been appointed to perform functions as listed

      in Section 30(2) (a) to (f) of the FSSA. Thus, any

      Notification issued by the Commissioner of Food Safety,

      is directly relatable to the exercise of the powers under

      the FSSA and is not an independent power exercised by

      the State by enacting / passing any law/legislation in

      respect of the subjects in Entry-26 List II or Entry- 33 List

      III of the seventh schedule to the constitution.




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      22. We have already stated that the domain or

      jurisdiction of the Commissioner of Food Safety is within

      the State and thus the impugned order dated 15/7/2020

      will have to be read as not creating or imposing any ban

      on any inter-State transport of goods. This would

      however not mean that the Authorities, empowered to

      enforce the prohibition as contained in the Order dated

      15/7/2020, would in any way, be restrained from

      ensuring that the prohibition as imposed, is enforced. In

      this context, it would not be out of place to mention

      here, that the order dated 15/7/2020, records that since

      2012, the manufacturing, production and transportation

      of the prohibited food articles, in the State was literally

      nil, even then the prohibited food articles were found

      available   in   small   shops,    godowns,      distributors,

      suppliers, wholesalers, retailers across the market in the

      entire State. In spite of continuous action being taken,

      still such supply and distribution continues, which is

      under the guise of inter-State transport. In the last year

      the department had taken action on 1118 vehicles, who

      were transporting prohibited food articles under the


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      guise of inter-State transport. It is axiomatic that such

      vehicles under the guise of inter-State transport dump

      the goods in the State of Maharashtra, where they are

      prohibited, which are then sold in the black market. It is

      a further matter of common knowledge, that in spite of

      the prohibition imposed, tobacco, Gutkha and tobacco-

      laced Pan Masala are easily available in the market and

      one of the source for such availability, is obviously

      dumping of such goods/material under the guise of

      inter-State transport.

      23.    The case in hand is one such example. The place

      of origin of the goods, is Kakadkoper, Vapi-Dharampur

      Road, Valsad in the State of Gujarat. The destinations are

      (a) Joda and (b) Post Khalari, District Angul, both in

      Odisha (Orissa). The place where the truck was detained

      is village Jaulka, Tahsil Malegaon, District Washim. The

      straight and perhaps the easiest route from the place of

      origin to the place of destination, would be through

      National Highway No. 8, from Valsad to Surat and

      thereafter   through     National    Highway      No.   6,   via

      Maharashtra, Chhattisgarh to Bargarh, in Odisha and


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      then down to Angul via National Highway No. 42. The

      route could also be, considering the prohibition in

      Maharashtra, so planned as to totally avoid the State

      altogether, which would be to Madhya Pradesh and

      Chhattisgarh. However, the fact that the truck was found

      in Malegaon, District Washim, which is not even on the

      National Highway No. 6, would naturally raise a

      presumption that the goods may have been destined to

      be offloaded some place in Maharashtra, though the

      destination on paper be otherwise. Though inter-State

      transport would be permissible, the State Authorities

      would be within their rights, to seize the goods, which

      are prohibited within the State, so as to ensure that they

      are not offloaded in the State under the guise of inter-

      State transport, with a view to enforce the prohibition

      within the State and curb black marketing of such goods

      within the State. Nothing prevents the transporters to

      plan a route, which avoids the State where the goods are

      prohibited. An alternate route, at the most, may increase

      the cost of transportation, but would save them from the

      clutches of prohibition. Thus, we do not find any


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      illegality in the seizure of the vehicles, carrying the

      prohibited goods, which was way off the easiest route of

      transport.”

                                       (Emphasis supplied)


6.     However, it is significant to note that even the decision of

Division Bench on which the learned counsel of the Respondent

has heavily relied also records that it is axiomatic that such

vehicles under the guise of inter-State transport dump the goods in

the State of Maharashtra, where they are prohibited, which are

then sold in the black market. It is also observed that it is a matter

of common knowledge, that in spite of the prohibition imposed,

tobacco, Gutkha and tobacco-laced Pan Masala are easily available

in the market and one of the source for such availability, is

obviously dumping of such goods/material under the guise of

inter-State transport. The said observations are also applicable to

the present case.


7.     Thus, it is clear that as far as only transportation between

Karnataka and Rajasthan is concerned, the same is not banned,

and therefore, if it is the contention of learned counsel for the

Respondent that it is only to be transported from State of


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Maharashtra to Rajasthan, then there would not have been any

objection even by the Petitioner-State of Maharashtra. However,

what is relevant to note that even as per the contention of the

Respondent that they have purchased 100 bags of Vimal Pan

Masala and and 100 bags of Vimal scented chewing tobacco and at

the time of lodging of F.I.R. and seizure of goods only 150 bags

were found, it is obvious that under the guise of inter-State

transport, such goods/materials are dumped in Maharashtra.

Thus, above referred observations of the Division Bench in

Mohammad Yasmin Naeem Mohammad (supra) are squarely

applicable to the facts of the present case.


8.       Mr. Walve, learned APP relies on the list of documents

submitted by the Respondent, i.e., Applicant in the Trial Court

wherein, GST receipt shows that 100 bags of Vimal Pan Masala and

100 bags of Vimal scented chewing tobacco were purchased by the

Petitioner from Karnataka. In view of the above contention, it is

relevant to note that the Panchanama recorded on 28 th April 2026,

specifically records that only 150 bags were found in the said

truck.     Thus, in view of said material on record, the finding

recorded by the learned Additional Sessions Judge, Pune at the fag



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end of paragraph No. 7, that there is nothing on record to show

that the seized goods were transported to Pune by accused person

for the purpose of its sale, distribution and storage, is not correct.

The further observations of the learned Additional Sessions Judge

that the discrepancies pointed out in the tax invoice relating to

number of bags purchased and number of bags recovered itself,

does not mean that the goods therein were uploaded at Pune or

any other place in Maharashtra. The said observations is contrary

to the material on record as 200 bags were purchased by the

Respondent and only 150 bags were found when the goods were

seized.


9.    Mr. Walve, learned APP is right in pointing out paragraph

Nos. 16 and 17 of said order dated 16 th July 2026 of Commissioner

of Foods Safety, which read as under :

          “(16)      Whereas, Subsequent to the Notification

          dated 19th July 2012, large quantities of, inter alia,

          Gutkha and Pan Masala were being brought into

          Maharashtra (on the footing of being transported to

          places outside Maharashtra), found to be stored in

          trucks, vehicles and other transport facilities, and




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      large stocks of these were also distributed by leakage

      into the local markets in Maharashtra, Likewise such

      stocks which were brought to sale in Maharashtra are

      seized in the tune of Rs.449 crores 27 lakh in the time

      frame from 2012-2025. In the same period 9454 First

      Information Report (FIR) are filed in police stations

      and 10241 cases are filed in Courts.

      (17)        Whereas, over the years it is observed that

      manufacturing/production/transportation and sale of

      prohibited food articles are stealthily and illegally

      going on in Maharashtra State, since the ban from

      2012. And we find all these prohibited food articles in

      small   shops,    godowns,      distributors,    suppliers,

      wholesalers, retailers etc. across the market and

      majority in transport vehicles. We have been taking

      action from 2012 on transportation still it is increasing

      day by day and hence required stringent action to stop

      these people across Maharashtra. Therefore, with

      prior approval of Maharashtra State Government,

      Food and Drug Administration with help of RTO




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       issued a circular to cancel the driver’s license and

       vehicle’s license, transporting prohibited food articles.

            Till March, 2025, department has taken an

       action   on   2082    vehicles    whoever     transporting

       prohibited food article, the figure shows that the

       offenders were transporting and selling prohibited

       food articles under the name of Intra State transport.

       Transport by using vehicles is one of the major tools

       found by such offenders to change the various places

       of storage immediately due to which the main

       offenders / owner of the prohibited food article

       remains safe. Due to which transport became one of

       the easiest mediator in this business and there is need

       to take legal and stringent action against such

       offenders.”

                                             (Emphasis added)

10.   It is required to be noted that the order dated 16 th July 2025

of Food Safety Commissioner, Food and Drugs Administration,

Maharashtra State clearly records that on the basis of the research

done at Tata Memorial Hospital, Tata Institute of Fundamental




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Research, study conducted by Dr. James E. Hamner and others,

reports by the Government Dental College, Nagpur and reports by

Government Dental College, Mumbai and survey conducted by the

Global Adult Tobacco Survey of India (GATS) and also some

N.G.Os. show that the consumption of Gutkha is having extremely

harmful effects and it was found that there is remarkable increase

in number of patients. It is recorded that chewing of Gutkha leads

to Oral Sub Mucous Fibrosis, and there is remarkable increase in

number of patients.


11.   Thus, the public interest and the health of the citizens is

required to be given more importance than the commercial interest

of the Respondent. Article 21 protects life and personal liberty.

Supreme Court has interpreted right to life to include conditions

necessary for a meaningful and healthy existence, including

protection against serious threats to public health. It is settled

principle that public health must receive a high constitutional

priority as it is indispensable to the physical existence and welfare

of the community. These    principles     cannot     be   ignored    for

protecting the commercial interest of the Respondent.




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12.   The learned JMFC and learned Additional Sessions Judge

have completely overlooked various aspects involved in the matter.


13.   Accordingly, impugned order dated 6th June 2026 passed by

learned JMFC, Court No.1, Pune in Criminal M.A. No. 3069 of

2026 as also order dated 30th June 2026 passed by learned

Additional Sessions Judge Pune in Criminal Revision Application

No. 209 of 2026 are quashed and set aside and said Criminal M.A.

No. 3069 of 2026 filed by the Respondent is dismissed.


14.   The State of Maharashtra is directed to take effective steps

for destruction of the subject goods expeditiously.


15.   Accordingly the Writ Petition is allowed in the above terms

with no order as to costs.


                                      [MADHAV J. JAMDAR, J.]




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