Bombay High Court
Gajanan @ Nagorao Laxman Gadade vs The State Of Maharashtra on 18 January, 2022
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.74 OF 2022
Gajanan @ Nagorao Laxman Gadade
...APPLICANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.Mahesh K. Bhosale Advocate for Applicant.
Mr.V.M. Kagne, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI, J.
DATE : 18th JANUARY, 2022
ORDER :
1. The applicant is apprehending his arrest in connection with
Crime No.374 of 2021 registered with Selu Police Station,
District-Parbhani for the offence punishable under Sections 328,
272, 273 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 that has
been lodged by PSI - Ashok Balaji Jatal attached to Selu Police
Station that the raid was conducted at a place which was under
new construction which was at a distance of about ½ km. From
Walur bus stand at about 3.00 p.m. on 15 th December 2021 and
they had apprehended one Kanhoba Laxman Gadade. It is stated
that they had seized 10 packets of Goa Gutka, 6 packets of
Premium Raj Niwas scented Pan Masala, 7 packets of Premium
Jafrani Jarda and 2 packets of Chewing Tobacco. The total worth
of the muddemal seized was Rs.3670/-. On the inquiry, it was
revealed that those articles were kept by Kanhoba Gadade with
an intention to sale. It is the further prosecution story that
during investigation the arrested accused disclosed the name of
the present applicant as the person conducting the business
along with him. There is no evidentiary value to the said
statement and therefore physical custody of the applicant is not
required for the purpose of investigation. It is also submitted
that Section 328 of the Indian Penal Code is not attracted to the
case as it is. It is then stated that Kanhoba is the brother of the
applicant and there is only one shop. The applicant is the only
earning member of the family and he is ready to abide by the
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terms of the bail. There was no connecting material with the
police to connect the present applicant with the crime and
therefore his custodial interrogation is not necessary.
4. Per contra, learned APP strongly opposed the application
even for grant of interim relief and it is stated that in view of the
First Information Report and the order passed by the learned
Additional Sessions Judge while rejecting the application filed by
the present applicant. The custodial interrogation of the
applicant is not necessary in view of the fact that Kanhoba is the
brother of the applicant and they could be found possessing only
one shop. He has disclosed the name of the present applicant
also as the person who is running the business. The custodial
interrogation of the applicant is necessary to reveal as to from
where the hazardous goods, which is causing health problems to
the generations, were purchased. Taking into consideration the
social view, those articles are banned in Maharashtra.
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
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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
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
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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
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
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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,
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. It is to be noted that the applicant is not denying a fact
that there is only one shop between the two brothers. That
means it is the family shop and therefore, exactly who had
brought those banned articles, is required to be revealed.
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Kanhoba - the brother of the applicant has been released on
regular bail and not anticipatory bail. Therefore, custodial
interrogation of the applicant is definitely necessary to reveal the
connection between the present applicant and the banned
articles and therefore at the threshold the Application deserves
to be rejected. Accordingly, the Application is rejected.
[ SMT. VIBHA KANKANWADI , J. ]
asb/JAN22
