The following are the essential ingredients of Section 328: 1) The offender should administer a poisonous stupefying, intoxicating or unwholesome drug; or 2) Such administration should be with the intention to cause hurt; or 3) With intent to commit or facilitate the commission of an offence; or 4) Such administration should be with the knowledge that it is likely to cause hurt. The object of Section 328 is obviously to punish persons who rob and ravish others by putting them out of their senses by means of stupefying drugs, which not only facilitates the commission of the crime but also in a great measure prevents its detection. In the first place, there must be the administering of any poison, etc., causing it to be taken by another. The words ‘any person’ mean any person other than the offender. The words ‘administer’ and ‘cause to be taken’ are intended to apply to two distinct methods of imparting poison etc.
The first refers to the giving of poison directly to the sufferer, while the phrase ‘cause to be taken’ refers to a taking by the sufferer under circumstances when he was not a free agent to do otherwise. The examples for administering ‘unwholesome drug’ are (i) the juice of some leaves to some villagers by way of ordeal; (ii) powder of dhatura to a woman to rob her jewellery while she was senseless; (iii) a wife, not knowing the dangerous properties of aconite, administered it to her husband by mixing it with his food and he died. Where an accused administered an intoxicating substance to a person with a view to rob him when the person was unconscious or stupefied, it would be an instance of administering intoxicating substance for facilitating the commission of an offence. The offence under Section 328 is complete even if no hurt is caused to the person to whom the poison or any other stupefying, intoxicating, or unwholesome drug is administered. This section is merely an extension of the provisions of Section 324.
Under Section 324 actual causing of hurt is essential; under Section 328 mere administration of poison is sufficient to bring the offender to justice. This offence is cognizable, non-bailable, non-compoundable and is triable by the Court of Session. The maximum punishment awardable under Section 328 is rigorous imprisonment extending up to ten years.