Israr Mansoori Mustaq Mansoori vs The State Of Maharashtra
2022 Latest Caselaw 1429 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


      ANTICIPATORY BAIL APPLICATION NO.1630 OF 2021


 Israr Mansoori Mustaq Mansoori
                                                        ...APPLICANT
        VERSUS

 The State of Maharashtra
                                                        ...RESPONDENT

                  ...
      Mr.Avinash R. Borulkar Advocate for Applicant.
      Mr.A.M. Phule, A.P.P. for Respondent-State.
                  ...

                CORAM: SMT. VIBHA KANKANWADI, J.


 DATE OF RESERVING ORDER                    : 7th JANUARY 2022

 DATE OF PRONOUNCING ORDER : 10th FEBRUARY 2022



 ORDER :

1. The applicant is apprehending his arrest in connection with

Crime No.106 of 2021 registered with Shirpur Taluka Police

Station, District-Dhule for the offence punishable under Sections

188, 272, 273, 328 of the Indian Penal Code read with Sections

26(2), 26(2)(iv), 27(3)(d), 27(3)(e), 30(2)(a), 3 of the Food

Safety and Standards Act, 2006.

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2. Heard learned Advocate for the applicant and learned APP

for the respondent - State.

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 two persons, namely, Ajim Wahid

Shaikh and Akram Shabbir Ali who found to be transporting

banned Gutka / tobacco packets in the vehicle bearing No. CG-

04-MG-1807. It is the further prosecution story that on

interrogation, said two persons disclosed the name of the

applicant by stating that the said Gutka packet were being

transported from Indore to Bhiwandi at the instance of the

applicant. That means, on the basis of the statement of the

accused the police want to arrest the applicant. Learned counsel

submits that the copy of the RC Book placed on record clearly

shows that the said vehicle is not owned by the applicant. Thus,

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-

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accused Ajim Wahid Shaikh and Akram Shabbir Ali were found to

be transporting the banned tobacco / Gutka. The purpose for

which the tobacco is 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 they were

transporting the said Gutka at the instance of the present

applicant and therefore his custody is required to reveal as to

how he deals in such hazardous goods. Though copy of the RC

Book placed on record reveals that the said vehicle is not owned

by the applicant but in the investigation it is revealed that said

vehicle is owned by brother of the applicant and it was used for

transporting banned articles at the instance of the applicant and

therefore custodial interrogation of this applicant is necessary.

5. Before proceeding further, it will not be out of place to

mention that learned Advocate for the applicant tried to submit

that offence under Section 328 of the Indian Penal Code will not

be attracted in this case as the person was not present before

any accused person who could be administered poisonous

substance. He relied on the decision in Anand Ramdhani

Chaurasia and another vs. State of Maharashtra, 2019

SCC OnLine Bom. 1857. Learned Advocate for the applicant

also relied on the decision by this Court in Anticipatory Bail

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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 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

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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

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.

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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,

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. So far as present case is concerned, the First Information

would show that Gutka packets were being transported from

Indore, Madhya Pradesh and selling of Gutka in Madhya Pradesh

is not banned, therefore, offence under Section 328 of the

Indian Penal Code has not been made out. Now it is required to

be seen, whether there was 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

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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. On the basis of

statement made by co-accused it is the prosecution story that

the banned articles were being transported in the said vehicle at

the instance of present applicant. The copy of RC Book placed on

record clearly discloses that the said vehicle is not owned by the

present applicant. The police papers do not contain any such

material to show that said vehicle belongs to the present

applicant. The evidentiary value to the statement of the co-

accused is nil. That means, it cannot be considered at all.

Therefore, the custodial interrogation of the applicant is not

required for the purpose of investigation. If attendance is

granted to him, the investigation can still go on. With these

observations, following order is passed:-

ORDER

i) Application stands allowed.

ii) In the event of arrest of the applicant - Israr Mansoori Mustaq Mansoori in connection with Crime No.106 of 2021 registered with Shirpur Taluka Police Station, District-Dhule for the offence punishable under Sections 188, 272, 273, 328 of the Indian Penal Code read with Sections 26(2), 26(2)(iv), 27(3)(d),

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27(3)(e), 30(2)(a), 3 of the Food Safety and Standards Act, 2006, 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 Shirpur Taluka Police Station on every Monday between 11.00 a.m. to 2.00 p.m. 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. ] asb/FEB22