Bombay High Court
Md. Kalim Mohd. Yusuf vs The State Of Maharashtra on 8 February, 2022
Bench: V. V. Kankanwadi
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.32 OF 2022
Md. Kalim S/o Mohd. Yusuf
...APPLICANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.Nitin S. Kadam Advocate for Applicant.
Mr.V.M. Kagne, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI, J.
DATE : 8th FEBRUARY, 2022
ORDER :
1. The applicant is apprehending his arrest in connection with
Crime No.357 of 2021 registered with Kotwali Police Station,
Parbhani, Taluka and District-Parbhani for the offence punishable
under Sections 328, 188, 269, 272 of the Indian Penal Code.
2. Heard learned Advocate for the applicant and learned APP
for the respondent - State.
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3. It has been vehemently submitted on behalf of the
applicant that perusal of the First Information Report would show
that it was registered against the persons namely, Sayyed Gous
Sayyed Ali, Shaikh Jahir, Rizwan and one unknown person. It is
submitted that First Information Report would show that accused
- Sayyed Gous Sayyed Ali was caught raid handed by the raiding
team, who was found to be transporting banned Gutka / Tobacco
packets in the vehicle bearing No.MH-38-3202. It is the further
prosecution story that on interrogation, said accused Sayyed
Gous Sayyed Ali disclosed the name of the present applicant as
the person to whom he was to deliver the Gutka. That means on
the basis of statement of the accused, the Police want to arrest
the present applicant. Learned counsel submits that in the First
Information Report, name of the present applicant is not
mentioned. There was no connecting material with the Police to
connect the present applicant with the crime. His custodial
interrogation is not necessary.
4. Per contra, the learned APP strongly opposed the
Application and submitted that as per the police report the co-
accused Sayyed Gous Sayyed Ali was found to be transporting
the banned Gutka / Tobacco. The purpose for which the Gutka is
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banned in the State of Maharashtra is well known and it is in the
interest of public health. However, the information has been
given by the co-accused that he was transporting the said Gutka
for delivering the same to the present applicant and therefore his
custody is required to reveal as to how he deals in such
hazardous goods which are causing health problems to the
generations.
5. Before proceeding further, it will not be out of place to
mention that there are two sets of decisions which say that
offence under Section 328 of the Indian Penal Code cannot be
said to have been made out and another set of decisions say
that under these circumstances as regards Gutka or scented
betel-nut Section 328 of the Indian Penal Code would be
attracted. In Anand Ramdhani Chaurasia and another vs.
State of Maharashtra, 2019 SCC OnLine Bom. 1857, and
in Anticipatory Bail Application No. 944 of 2020 with
companion matters, decided on 30th September, 2021
(Coram:V.G. BISHT, J.), whereby in similar situations the
applicants therein who have been arrested holding or possessing
Gutka, have been released on anticipatory bail, holding that
offence under Section 328 of the Indian Penal Code has not been
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made out. Ratio laid down in Joseph Kuruian Philip Jose vs.
State of Kerala, (1994) 6 SCC 535 was relied.
6. At the outset, it is to be noted that though this Court
(Coram:V.G. BISHT, J.) in the aforesaid Judgment and order in
Anticipatory Bail Application No.944 of 2020 with
companion matters, had come to the conclusion that in such
facts of the cases offence under Section 328 of the Indian Penal
Code cannot be said to have been made out, there is another set
of decision in Anticipatory Bail Application No.1405 of 2021
with companion matters, decided by this Court (Coram:
PRAKASH D. NAIK, J.) on 23rd December 2021, wherein it has
been held that in such cases offence under Section 328 of the
Indian Penal Code can be said to have been made out and hence
certain applications were rejected and certain applications came
to be withdrawn when disinclination was shown by the Court. In
both the matters, mainly decisions of this Court in Anand
Ramdhari Chaurasia and another vs. State of Maharashtra
(supra) and in Ganesh Pandurang Jadhav vs. State of
Maharashtra (Criminal Writ Petition No.1027 of 2015 with
companion matters) were referred and note was taken that
Hon'ble Apex Court has stayed the decisions of this Court. Those
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were the cases in which the First Information Reports were
sought to be quashed under Section 482 of the Code of Criminal
Procedure Code on the ground that offence under Section 328 of
the Indian Penal Code has not been made out. However, note of
other two decisions by the Division Bench of this Court were also
taken. One is in the case of Vasim S/o Jamil Shaikh vs. State
of Maharashtra and another in Criminal Application
No. 4353 of 2016 decided on 29th November 2018, wherein this
Court was also one of the party, (CORAM: T.V. NALAWADE
AND SMT. VIBHA KANKANWADI, JJ.), and in that decision
view was taken that the contention of the applicant that in such
cases provisions of Section 328 of the Indian Penal Code cannot
be used, is unacceptable. Thereafter, there is also case of Zahir
Ibrahim Panja and others vs. State of Maharashtra and
others (Criminal Application No.4968 of 2016) decided on
16th October 2018, wherein it was held that Section 328 of the
Indian Penal Code can be invoked in such cases.
7. As regards the decision in Joseph Kurian Philip Jose is
concerned, it was referred in Anand Ramdhari Chaurasia
(supra), wherein Vasim Shaikh's case (supra) was held to be
per incuriam in view of Joseph Kuruian Philip Jose. However,
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the position stands and it has been so considered in
Anticipatory Bail Application No.1405 of 2021 (supra) that
the said decision has been stayed by the Apex Court and
therefore, this Court would agree with the reasons given by this
Court (CORAM: PRAKASH D. NAIK, J.) in Anticipatory Bail
Application No.1405 of 2021 with companion matters,
decided on 23rd December 2021.
8. In spite of the fact that in such cases offence under Section
328 of the Indian Penal Code can be invoked, now it is required
to be seen, whether there is any material to connect present
applicant with the crime. Again it can be observed that in
Anticipatory Bail Application No.1405 of 2021 with
companion matters, this Court had come to the conclusion that
the applicants therein were found possessing the banned articles
and therefore it will not be a good case to release them.
However, in the present case the applicant is not the person in
whose custody the banned articles were found. The name of the
present applicant is not appearing in the First Information
Report, however, in the remand report it is stated that on the
statement made by the accused who was apprehended, the
name of the present applicant was revealed as the person to
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whom he was to deliver the Gutka. At this stage, what is
appearing that actual delivery of the Gutka was not made to the
applicant at any point of time. Under such circumstance, whether
offence under Section 328 of the Indian Penal Code gets
attracted or not as against the present applicant is a question.
On the basis of statement of co-accused, Police want to arrest
present applicant. The evidentiary value to the statement of the
co-accused is nil. That means, it cannot be considered at all.
Therefore, custodial interrogation of the applicant is not required
for the purpose of investigation. The investigation can still go on
if the attendance is directed to be given and therefore, the
interim protection granted earlier deserves to be confirmed.
Hence the following order:-
ORDER
i) Application stands allowed.
ii) The interim protection granted to the applicant by this
Court vide order dated 18th January 2022 stands confirmed. It is
clarified that in the event of arrest of applicant - Md. Kalim S/o
Mohd. Yusuf in connection with Crime No.357 of 2021 registered
with Kotwali Police Station, Parbhani, Taluka and District-
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Parbhani for the offence punishable under Sections 328, 188,
269, 272 of the Indian Penal Code, he be released on bail on PR
Bond of Rs.30,000/- (Rupees Thirty Thousand) with two solvent
sureties of Rs.15,000/- (Rupees Fifteen Thousand) each.
iii) Applicant shall attend Kotwali Police Station, Parbhani on
every Monday between 10.00 a.m. to 12.00 noon till filing of the
charge-sheet and co-operate with the investigation.
iv) Applicant shall not tamper with the evidence of the
prosecution in any manner.
[ SMT. VIBHA KANKANWADI , J. ]
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