Samir Latif Tamboli vs The State Of Maharashtra
2021 Latest Caselaw 1112 Bom

                                                           37-ABA-119-2021.odt


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CRIMINAL APPELLATE JURISDICTION

      ANTICIPATORY BAIL APPLICATION NO. 119 OF 2021

 Samir Latif Tamboli                              .... Applicant
           Versus
 The State of Maharashtra                         .... Respondent
                                ______

 Mr.Dinesh P. Adsule, for the Applicant.
 Mr. S.H. Yadav, APP for the State/Respondent.
                            ______

                               CORAM :SARANG V. KOTWAL, J.

DATE :25th JANUARY, 2021 P.C. :

1. The applicant is seeking anticipatory bail in

connection with C.R. No. 1147/2020 registered at Karmala

Police Station on 28/11/2020 under Sections 188, 272,

273, 328 of the Indian Penal Code and under Section 59 of

the Food Security and Standards Act, 2006 .

2. Heard Mr. Dinesh Adsule, the learned advocate

for the Applicant and Mr. S.H. Yadav, learned APP for the

State.

3. The FIR is lodged by one Umesh Bhuse who was

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working as Food Safety Ofcer. He has stated in his FIR

that on 27/11/2020 a secret information was received by

the police that a person was carrying Gutkha with him

near Jevur Bus Station. Police Ofcers went to the spot.

That person was arrested. His name was Sufyan

Shamshoddin Tamboli. The goods carried by him were

examined. He was found to carrying pan masala,

scented supari, gutka, scented tobacco worth more than

Rs.7000/-. The samples were collected. On inquires with

him, he informed that these articles were supplied by the

present applicant. On this basis the FIR is lodged.

4. Shri Adsule the learned advocate for the

applicant submitted that in such circumstances, Section

328 of the Indian Penal Code is not attracted because

there was no "administration" of the substance. He

relied on the following cases.

(i) Mainoddin S/O. Hasanji Tamboli Vs.The

State of Maharashtra, (ABA No. 171 of 2020) decided

on 28/02/2020 by a single Judge Bench at Aurangabad of

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this Court

(ii) Sambhaji S/O. Raosaheb Adhav

Vs. The State of Maharashtra,(ABA No. 692 of 2020)

decided on 08/09/2020 by another single Judge of

Aurangabad Bench of this Court.

5. He submitted that both these judgments have

taken a view that Section 328 of the Indian Penal Code, is

not attracted in such cases and other sections are

bailable. Therefore the applicant cannot be arrested. He

also submitted that since the contraband was already

recovered, there was no further necessity of custodial

interrogation of the applicant.

6. The learned APP, on the other hand, had relied

on the latest Judgment of a single Judge Bench of this

Court passed in the Case of Vinod Ramnath Gupta Vs.

The State of Maharashtra and Nipul Nagde Vs. The

State of Maharashtra passed in ABA No. 2451 of 2020

and 2489 of 2020 respectively dated 06/11/2020.

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7. I have considered all these submissions. As far

as application of Section 328 of the IPC is concerned, this

aspect was extensively dealt with by a single Judge Bench

of this Court in the case of Vinod Gupta (supra) decided

on 06/11/2020. This Judgment is latest amongst the

three Judgments, cited before me. In the case of Vinod

Gupta this Court (Coram:- S.K.Shinde J.) has considered

some other earlier Judgments and has also considered the

ingredients of Section 328 of the IPC. The learned single

Judge has considered the reasons and necessity as to why

manufacturing and selling of such articles were prohibited

in the State of Maharashtra. Considering the reasoning

given in this Judgment, I am in total agreement with the

view expressed in the case of Vinod Gupta. This being

the judgment, later in point of time and since I am

agreeing with this view, I am following this judgment in

this particular case.

8. In Sambhaji Adhav's case (supra), the reliance

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was placed on judgment in the case of Anand Ramdhani

Chaurasia Vs. State of Maharashtra which was

decided on 13/09/2019 in Criminal Writ Petition No. 3606

of 2009. The ratio mentioned in Chaurasia's case was

similar to the ratio of Maninoddin Tamboli's case.(supra).

In Vinod Gupta's case, a single Judge Bench of this Court,

in paragraph No. 6 had observed that the Judgment in

Chaurasia's case (supra) was stayed by the Hon'ble

Supreme Court vide Order dated 31/08/2020. Therefore

in Vinod Gupta's case (supra) a single Judge bench of this

Court has practically answered all the issues raised by

Shri Adsule in this application.

9. The argument that the contraband articles are

already seized and therefore custodial interrogation is not

necessary, does not appeal to me. The FIR itself shows

that all these banned substances were supplied by the

present applicant and therefore, to fnd out his exact

participation and role played by him, his custodial

interrogation is necessary. Therefore no case for

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anticipatory bail is made out.

10. The application is therefore rejected.

                                       (SARANG V. KOTWAL, J.)




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