Mohammad Farid S/O Md. Jakeriya vs The State Of Maharashtra
2022 Latest Caselaw 5649 Bom

                                                 1        909-ABA.310-22.odt




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

          909 ANTICIPATORY BAIL APPLICATION NO.310 OF 2022

                    MOHAMMAD FARID S/O MD. JAKERIYA
                                VERSUS
                      THE STATE OF MAHARASHTRA

                                      ...
                Advocate for Applicant : Mr. Rahate Satyajeet J.
                APP for Respondent-State : Mr. S. B. Narwade.
                                      ...

                                 CORAM :     S. G. MEHARE, J.
                                 DATE :      21.06.2022

     PER COURT :-


     1.      Heard the learned counsel for the applicant and the

     learned APP for the State.


     2.      Learned counsel for the applicant would submit that he

     has no concern with the alleged incident. The vehicle involved

     in the incident was sold by document dated 20.09.2021 to the

     co-accused, who was in possession of the contraband articles.

     The document of transfer was executed, and the forms of

     transfer have also been executed. However, the transfer

     documents have not been submitted to the Office of the

     Transport for appropriate transfer. But the fact remains that

     since September 2021, the vehicle involved in the incident has

     been exclusively in possession and under the ownership of the




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     co-accused. He has given the false answer in interrogation to

     the police that the applicant has a role to play in the alleged

     offence.


     3.      Learned APP has strongly opposed the application,

     contending that the so-called transaction is not a real

     transaction but a practice in committing such types of offences.

     He relied on a bunch of case laws as regards the applicability

     of Section 328 of the I.P.C. He has also pointed out that the

     transfer of the vehicle is not legal and authorized; therefore,

     the possession of the contraband should be assumed in the

     custody of the applicant.


     4.      Per contra, learned counsel for the applicant has also

     filed various judgments as regards the applicability of Section

     328 of the I.P.C. There are judgments from both sides, and the

     issue as pointed out by the learned APP as regards the

     applicability of Section 328 of the I.P.C. is pending before the

     Apex Court. Be that as it may, here, the issue is different. The

     applicant had a specific case that the vehicle in which the

     contraband articles were transported was given in the

     possession of the co-accused in the year 2021 by document of

     sale. Since then, the applicant has no control over the said

     vehicle. The learned counsel for the applicant has made a




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     specific statement that the co-accused who was driving the

     vehicle involved in the crime was never his driver. But only to

     bring the applicant under the Criminal Law, he has been

     arraigned as an accused.


     5.      Apparently, it appears that the vehicle involved in the

     incident was given in possession of co-accused Akbar Khan

     Mehboob Khan on 20.09.2021. The vehicle was purchased by

     taking a loan from I.C.I.C.I. Bank. However, the bank appears

     to have not been intimated about the transaction. Therefore,

     the applicant has purchased the insurance policy and still

     paying the E.M.I.s. The learned counsel for the applicant had

     pointed out that the co-accused Akbar Khan is paying him the

     money by installment by depositing in his bank account. This

     Court is not hearing on the validity of the sale transaction of

     the vehicle involved in the crime, but has to consider the prima

     facie case. Prima facie, the applicant is able to satisfy the Court

     that on the day of the incident, he has no control and

     conscious possession over and of the vehicle involved in the

     incident. Such a balanced situation may help the applicant in

     getting protection. In the facts and circumstances of the case,

     the application deserves to be allowed. Hence, the following

     order :




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                                    ORDER

(i) The application is allowed.

(ii) In the event of arrest of the applicant Mohammad Farid S/o Md. Jakeriya, in connection with Crime No.30 of 2022, registered with Police Station Parbhani Rural, District Parbhani for the offences punishable under Sections 328, 188, 271, 273 read with Section 34 of I.P.C., be released on bail on furnishing P.B. and S.B. of Rs.20,000/- (Rupees Twenty Thousand only) with one solvent surety of the like amount on the conditions that he shall attend the Police Station on every Thursday between 11.00 a.m. to 1.00 p.m. till 25.07.2022. He shall not tamper with the prosecution witnesses.

             (iii)    Humdast allowed.




                                                    (S. G. MEHARE, J.)
                                         ...
     vmk/-