Mohan Namdev Ghare vs State Of Maharashtra
2023 Latest Caselaw 6407 Bom

2023:BHC-AS:18492
                                                                             37-aba1297-2023.doc


                    AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION

                         ANTICIPATORY BAIL APPLICATION NO.1297 OF 2023


                    Mohan Namdeo Ghare                            ... Applicant
                               V/s.
                    The State of Maharashtra                      ... Respondent


                    Mr. Gaurav Parkar for the applicant.
                    Mrs. Rutuja Ambekar, APP for the respondent/State.
                    Mr. G.B. Balwadkar, API, Rasayani Police Station, is
                    present.


                                                 CORAM : AMIT BORKAR, J.

                                                 DATED     : JULY 6, 2023
                    P.C.:

1. The applicant is seeking relief under Section 438 of the Criminal Procedure Code, 1973 in connection with C.R. No.22 of 2023 registered with Rasayani Police Station, Taluka Khalapur, District Raigad for offences punishable under Sections 188, 272, 273, 328 read with 34 of the Indian Penal Code, 1860 and under Sections 26(1), 26(2)(i)(iv), 27(3)(d), (e), 30(2)(a) and 59 of the Food Safety and Standard Act, 2006.

2. The case of prosecution is that on receipt of complaint on 30 January 2023 at 12.20 noon the investigating agency carried out search in the shop of accused No.1 where they found various substances being 80 packs of Saffron Blended Vimal Pal Masala, 80 packs of scented tobacco, 33 pouches of Rajnigandha Pan Masala.

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Total cost of the contraband substance is approximately Rs.18,194/-. Accordingly, report was lodged.

3. Apprehending arrest, the applicant filed application under Section 438 of the Criminal Procedure Code, 1973 before the Sessions Court. The learned Additional Sessions Judge, Panvel rejected the application by order dated 4 March 2023. The applicant, therefore, filed present anticipatory bail application.

4. Learned advocate for the applicant submitted that the applicants has not been named in the first information report. He has been falsely implicated. According to him, there is no material to show that the applicant has administered contraband substance. The prohibited substances has been seized and, therefore, custodial interrogation of the applicant is not necessary. He is ready to cooperate with the investigation.

5. Per contra, learned APP submitted that the applicant is in the business of supplying prohibited substances. It is necessary to unearth traces of larger supply of banned substances. He submitted that the coordinate Benches of this Court in case of Sagar Sadashiv Kore v. State of Maharashtra, reported in 2021 SCC OnLine Bom 6568 and in Ankush v. State, thr PSO, reported in 2020 SCC OnLine Bom 11384 and Pathan Shafi Khan Rehemat Khan v. State of Maharashtra reported in 2021 SCC OnLine Bom13367 and unreported judgment of this Court in Anticipatory Bail Application No.483 of 2021 (Mohammed Ali Raheman Alias MohammedAli Abdul Raheman Shaikh v. The State of Maharashtra) decided on 24 March 2021

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refused to grant pre-arrest protection to the applicants therein having similar role attributed to the applicants therein.

6. I have considered the submissions on behalf of both the sides. Prima facie, person from whom prohibited substance was seized has named applicant as supplier. Considering the nature of allegations against the applicant, it is necessary that detailed investigation as regards existence of any racket operating in prohibited substance need to be investigated. It is also necessary to investigate source of such supply and acquisition. It is also necessary to investigate into the names and identity of purchasers of the prohibited substance from the applicant.

7. Learned Single Judge of this Court in Ankush (supra) in paragraph 8 observed thus:

"8. It is not in dispute that Gutka (chewing tobacco made from crushed areca nut, tobacco, catechu, paraffin wax, slaked lime etc.) and Pan Masala (combination of betel leaf and areca nut with or without tobacco) are seriously detrimental to health and the consumption thereof is identified as a major cause of oral cancer. The said products contain carcinogens and are known to be highly addictive. The State Government has exercised, from time to time, the statutory power under the FSS Act to prohibit the manufacture, storage, distribution and transport or sale of tobacco, whether flavoured, scented or mixed with other ingredients such as nicotine, menthol etc."

8. The coordinate Bench has relied upon an unreported judgment of the Division Bench of this Court (Aurangabad Bench) in the case of Zahir Ibrahim Panja v. State of Maharashtra in Criminal Application No.4968 of 2016.

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9. In the case of Pathan Shafi Khan Rehemat Khan (supra), co-ordinate Bench of this Court has considered the issues of applicability of Section 328 of the Indian Penal Code. I respectfully agree with the views taken by the co-ordinate Bench.

10. The applicant has antecedent of similar offences to his discredit. Therefore, in my opinion, considering the allegations against the applicant, no case for grant of pre-arrest protection is made out.

11. The anticipatory bail application, therefore, stands rejected. No costs.

(AMIT BORKAR, J.)