Gaurav Jayantbhai Hapani vs The State Of Maharashtra
2022 Latest Caselaw 12830 Bom

                                                                 5.ABA.3406-22.doc

            Diksha Rane

       Digitally
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
       signed by
       DIKSHA
DIKSHA DINESH
                              CRIMINAL APPELLATE JURISDICTION
DINESH RANE
RANE   Date:
       2022.12.09
       18:10:59     ANTICIPATORY BAIL APPLICATION NO.3406 OF 2022
       +0530


                    GAURAV JAYANTBHAI HAPANI                  ..APPLICANT
                          VS.
                    THE STATE OF MAHARASHTRA                  ..RESPONDENT
                                              ------------
                    Mr. Vivek B. Rane for the applicant.
                    Mr. S. H. Yadav, APP for the State.
                                              ------------

                                           CORAM : M. S. KARNIK, J.

                                           DATE     : DECEMBER 9, 2022.
                    P.C. :

                    1.     From the applicant what is seized is prohibited

                    substance in form of Gutka, pan masala, scented tobacco

                    and mixture of betel nut. There is one mobile phone which

                    is also seized. The value of the contraband is stated to be

                    Rs.21,514/-. The applicant is running a pan shop. The

                    offence, therefore, came to be registered under Sections

                    328, 272, 273 read with 34 of the Indian Penal Code.

                    2.     My attention is invited to the order dated June 22,

                    2022, granting ad-interim protection to the applicants in

                    Anticipatory Bail Application No.1588/2022 and Anticipatory



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                                                        5.ABA.3406-22.doc

Bail Application No.1587/2022. Paragraphs 4 and 5 read

thus:-

     "4.    Barring the offence u/s.328 of the IPC, all other
     offences are bailable. The position of law whether an
     offence     u/s.328   gets   attracted   when     the    prohibited
     substance, is transported or supplied, but it is caused to
     be consumed is attracted or not, till date, is not
     crystallized. A decision of the Division Bench of this Court
     in case of Anand Ramdhani Chaurasiya & Anr Vs. The
     State of Maharashtra [(2019) SCC Online Bombay 1857] ,
     where a view was taken that Section 328 IPC could not
     have been invoked, has been stayed by the Hon'ble Apex
     Court. However, in SLP No.843/2021 Mohd. Ali Rehman @
     Mohammed        Ali   AbdulRaheman       Shaikh    Vs.   State    of
     Maharashtra, the Hon'ble Apex Court, on 13/11/2021 took
     note of the pending matter before it,in regards to
     invocation of Section 328 of the IPC. The Special Leave
     Petition is directed to be tagged with the Special Leave
     Petition filed by the State of Maharashtra in case of Anand
     Chaurasiya (supra). The Hon'ble Apex Court has directed
     the Investigating Officer not to arrest the petitioner
     subject to he rendering co-operation.
     5.     Considering the conundrum of the applicability of
     provisions of Section 328 in a situation like this, and since
     the issue is pending before the Hon'ble Apex Court,
     pursuant to the view of the Division Bench of this Court
     and since judgment of the Division Bench taking a view
     that   it   cannot    be   invoked,   has   been     stayed,     the


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                                                  5.ABA.3406-22.doc

      ad-interim order would serve the purpose of justice for the
      time being."


3.   Learned     APP    to   seek    instructions    from     the

Investigating Officer, who is present before the Court.

4.   In this view of the matter, the applicant is protected

by way of an interim order. Hence the following order.

                               ORDER

(a) In the event of arrest in connection with FIR No.07/2022 registered with Miraroad Police Station, applicant Gaurav Jayantbhai Hapani shall be released on bail on furnishing P.R. Bond of Rs.25,000/- with one or two sureties in the like amount.

(b) The applicant shall report to the Investigating Officer of the concerned police station on 14 th and 15th December, 2022, between 10.00 a.m. and 12.00 noon and thereafter, as and when called for. The applicant to co-operate with the investigation.

(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing the facts to Court or any Police Officer and shall not tamper with evidence.

5. Stand over to January 5, 2023.

(M. S. KARNIK, J.)