Avinash Balkrishna Bhamre vs State Of Maharashtra
2022 Latest Caselaw 2309 Bom

                                                                                    12-aba-629-2022.doc


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION

                         CRI. ANTICIPATORY BAIL APPLICATION NO. 629 OF 2022

                     Avinash Balkrishna Bhamre                              ..Applicant
                          Vs.
                     The State of Maharashtra                               ..Respondent
                                                            ----

                     Mr. V. V. Gangurde, for the Applicant.
                     Mr. N. B. Patil, APP for the Respondent / State.
                                                      ----

        Digitally                                         CORAM : C.V. BHADANG, J.
        signed by
MAMTA   MAMTA
        AMAR KALE
                                                          DATE : 8 MARCH 2022
AMAR    Date:
KALE    2022.03.09
        15:40:29
        +0530
                     P.C.

                     .            The Applicant, apprehending arrest, in connection with
                     investigation of Crime No.140/2021 of Police Station Pimpalgaon
                     Baswant, Tal. Niphad, District Nashik, under Section 179, 188, 272,
                     273 and 328 of IPC and Section 26(2)(i), 3(1)(zz)(v), 27(3)(d)(e)
                     r/w. Section 59 of the Food Safety and Standards Act, 2006, is
                     seeking anticipatory bail.


                     2.           The aforesaid crime is registered on the basis of the complaint
                     dated 9 December 2021 lodged by Rajendra Dattatray Suryawanshi,
                     the Food Safety Officer, Nashik. According to the informant on 9
                     December 2021, inspection was taken of M/s. Rajendra Kirana Shop


                     Mamta Kale                                                  page 1 of 4
                                                              12-aba-629-2022.doc


at Shanti Park Apartment, Chinchkhed Road, Shivaji Nagar,
Pimpalgaon, Taluka Niphad, District Nashik, of the Applicant.
Further according to the informant, there was a goods vehicle
standing outside the shop bearing No.MH15-HH-1198. In a search
of the shop and the said vehicle, Scented Tobacco and Pan Masala
products, which are banned, have been recovered worth
Rs.1,26,159/- (Rs.35,079/- from the shop and Rs.61,080/- from the
vehicle).


3.           The learned counsel for the Applicant submitted that the only
section which is non bailable is Section 328 of IPC. The learned
counsel has placed reliance on the decision of the Supreme Court in
Joseph Kurian & Anr. Vs. State of Kerala 1 and the order dated 30
September 2021, passed in a batch of Anticipatory Bail Applications
No.944 of 2020 and others, at the Aurangabad Bench, in order to
submit that in similar circumstances, it has been held that Section
328 of IPC may not be attracted as there was no attempt to
administer any intoxicant or stupefying substance by the Applicant
with an intention to commit an offence.             The learned counsel
further pointed out that the learned Single Judge of this Court at
Mumbai has taken a contrary view by order dated 6 November
2020 in ABA (Stamp) No.2489/2020 which order is subject matter
of challenge before the Supreme Court in Special Leave to Appeal
(Cri.) No.6788/2021. It is pointed out that the Supreme Court by
1(1994) 6 Supreme Court Cases 535


Mamta Kale                                                 page 2 of 4
                                                                12-aba-629-2022.doc


an order dated 21 September 2021 has granted interim protection to
the Petitioner therein.


4.           Learned APP seeks time to examine and go through the
judgments on which the reliance is placed on behalf of the Applicant
and then to make appropriate submissions to further assist the
Court.


5.           Prima facie, it appears that the learned Single Judge sitting at
Aurangabad Bench, has taken a view that Section 328 of IPC may
not apply in such a case. The contrary view taken by the Coordinate
Bench at Mumbai is subject matter of challenge before the Supreme
Court in which interim protection has been granted. Hence, the
following order is passed.
                                     ORDER

(i) In the event of his arrest in connection with investigation of Crime No.140/2021 of Police Station Pimpalgaon Baswant, Tal. Niphad, District Nashik, the Applicant Avinash Balkrishna Bhamre, be released on bail on executing a P.R. Bond in the sum of Rs.25,000/- with one or two solvent sureties in the like amount.

(ii) The Applicant shall report to Investigating Officer on 15/3/2022 and 16/3/2022 between 11.00

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a.m. to 1.00 p.m. and as and when directed by the Investigating Officer.

(iii) The Applicant shall cooperate with the Investigating Agency and shall not tamper with the prosecution evidence / witnesses.

(iv) This order shall remain in force till next date. Stand over to 1 April 2022.

C.V. BHADANG, J.

Mamta Kale                                                 page 4 of 4