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
- Bharatiya Nyaya Sanhita, 2023 — s. 123, 223, 274, 275
- Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 — s. 20(2), 59, 7(2)
- Food Safety and Standards Act, 2006 — s. 26(2)(i), 26(2)(iv), 30(1), 30(2), 59
Subjects
- Gutkha
- inter‑state transport
- Food Safety and Standards Act
- Cigarettes Act
- public health
- constitutional law
- Maharashtra ban
- seizure
- tobacco
Judgment
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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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