Bombay High Court
Mayur Rishikumar Agarwal vs The State Of Maharashtra on 16 June, 2023
Bench: Amit Borkar
2023:BHC-AS:16116
39-aba837-2023.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.837 OF 2023
Mayur Rishikumar Agarwal ... Applicant
V/s.
The State of Maharashtra ... Respondent
Mr. Rajesh More for the applicant.
Mr. Amit A. Palkar, APP for the respondent/State.
CORAM : AMIT BORKAR, J.
DATED : JUNE 16, 2023
P.C.:
1. The applicant is seeking relief under Section 438 of the
Criminal Procedure Code, 1973 in connection with C.R. No.94 of
2023 dated 10 March 2023 for offences punishable under Section
188, , 272, 273, 328 of the Indian Penal Code, 1860 and under
Section 30(2)(a), 26(2)(i), and 26(2)(iv) of the Food Safety and
Standard Act, 2006.
2. The case of prosecution in short is that on 9 March 2023 at
17.00 hours they seized huge quantity (20 types) of pan masala
(prohibited substances) worth Rs.2,47,676/-. Based on statement
of person from whose custody banned substances were seized,
name of the applicant surfaced. The accused stated in his
statement that the applicant is the supplier of banned substances.
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3. Apprehending arrest, the applicant filed application under
Section 438 of the Criminal Procedure Code, 1973 before the
Sessions Court. The learned Sessions Court rejected the application
by order dated 16 March 2023. Aggrieved thereby, the applicant
has filed present anticipatory bail application.
4. Learned advocate for the applicant submitted that the
applicant has not been named in the first information report. He
has been falsely implicated. Learned advocate for the applicant
relying on unreported orders of this Court in a group of matters,
lead matter being Anticipatory Bail Application No.944 of 2020
(Manjubhai Manchakrao Rokde v. The State of Maharashtra)
decided on 30 September 2021 and Anticipatory Bail Application
(St.) NO.2451 of 2020 (Vinod Ramnath Gupta v. The State of
Maharashtra) decided on 6 November 2020 submitted that learned
Judge of this Court granted anticipatory bail to the
applicants/accused of commission of offence under Section 328 of
the Indian Penal Code. He also invited my attention to the
judgment of the Apex Court in S. Kasi v. State through the
Inspector of Police Samaynallur Police Station Madurai
District reported in 2020 SCC OnLine SC 529 to urge that the
principle of law enunciated by another Bench is binding on
coordinate Bench of the High Court and the only course available
is to refer the matter to the Larger Bench. 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
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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 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 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. I have carefully scrutinized the case diary. Prima facie, the
statement of the person from whom prohibited substance was
seized named the applicant as supplier. Considering the nature of
allegations against the applicant, it is necessary that detail
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
39-aba837-2023.doc
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.
9. In so far as the judgment in the case of Manjubhai Rokde
and Vinod Ramchandra Gupta (supra) are concerned, it needs
to be noted that in both the orders no principle of law arose for
consideration and no principle of law was laid down. It is well
settled that an order of bail application is summary in nature
based on summary facts which can never be relied as a precedent
or can be cited as an authority laying down proposition of law by
this Court unless and until principle of law arise for consideration
and the order lays down principle of law. A decision is an authority
for what it actually decides. The essence of a decision is its ratio
and not every observation found therein nor what legally follows
from the observations made in the order. A case cannot be an
authority on the point of a fact. Each case has to be decided in the
light of circumstances existing in it. A precedent is a judicial
decision which lays down a principle of law. Generally bail orders
in their operative part proceed on peculiar facts of each case.
Sometimes facts are not stated in the order considering complexity
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of facts and circumstances of the case. Therefore, generally bail
orders without laying down principle of law cannot be regarded as
an authority on a point of fact. Therefore, in my opinion, both the
judgments cited by the advocate for the applicant in the absence of
proposition of law being decided cannot be treated as a precedent
laying down principle of law. The orders relied upon by the
applicant, therefore, are of no help to the applicant.
10. 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 is, therefore, rejected. No
costs.
12. At this stage, learned advocate for the applicant prayed for
grant of ad-interim relief as the Sessions Judge had protected him
during pendency of the application. Considering the nature of
allegations, ad-interim relief granted earlier shall continue for a
period of two weeks from today.
(AMIT BORKAR, J.)
