Vasim Samad Shaikh v. The State Of Maharashtra And Another
2025:BHC-AUG:18627-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD 13 CRIMINAL APPLICATION NO.37 OF 2024 Vasim Samad Shaikh, Age 30 yrs., Occ. Business, R/o Sajapur, Post Ghanegaon, Tq. & Dist. Aurangabad.
... Applicant ... Versus ...
The State of Maharashtra Through Police Inspector, City Police Station, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar.
Shivaji Ashok Dhakane, Age Major, Occ. Service, R/o Local Crime Branch, Ahmednagar, Tq. & Dist. Ahmednagar.
... Respondents ...
Mr. A.N. Barhate Patil, Advocate for applicants Mr. A.R. Kale, APP for respondent Nos.1 and 2 ...
CORAM :
SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.
DATE :
26th JUNE, 2025
ORDER :
( PER : SMT. VIBHA KANKANWADI, J. ) Present application has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashment of the proceedings in charge sheet dated 26.06.2023 arising out of First Information Report vide Crime No.200/2023 dated 30.04.2023 registered with City Police Station, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar, for the offence punishable under Sections 328, 188, 272, 273 read with Section 34 of the Indian Penal Code, 1860.
Heard learned Advocate Mr. A.N. Barhate Patil for applicant and learned APP Mr. A.R. Kale for respondent Nos.1 and 2. Learned Advocate appearing for applicant submits that there is no hurdle for allowing his prayer. In fact, he had relied on the decision in Ganesh Pandurang Jadhao and another vs. The State of Maharashtra and others in Criminal Writ Petition No.1027 of 2015 with companion matters decided on 04.03.2016 to submit that Section 328 of the Indian Penal Code cannot be said to be made out as it was observed in this case by Division Bench of this Court that by no stretch of imagination, manufacturing, possessing Gutkha and Pan Masala would amount to administering poison. It was held that Gutkha or Pan Masala are not subjected to food analysis.
However, there is amendment in the Food Safety and Standards Act at the behest of Government of Maharashtra on 18.07.2023, wherein in the public interest stern action was proposed to be taken in respect of the items like tobacco, Pan Masala, Gutkha etc. Further, as regards present position on this point is concerned, there are different views with the Benches. In Anand Ramdhani Chaurasia vs. The State of Maharashtra [(2019) ALL MR (Cri.) 4402] it has been held that Section 328 of the Indian Penal Code will not get attracted. Similar view was also taken in Nilesh Narayan Sanghvai vs. The State of Maharashtra and another in Criminal Application No.442 of 2020 decided on 09.09.2020. However, in Vasim Jamil Shaikh vs. The State of Maharashtra and another [(2019) ALL MR (Cri.)
381] with companion matters, this Bench held that the contention that provisions of Section 328 of the Indian Penal Code cannot be used in such cases, is not acceptable. The decision in Anand Chaurasia (supra) has been challenged before Hon'ble Apex Court vide Special Leave Petition (Criminal) No.8224 of 2020 and by order dated 31.08.2020 the Hon'ble Apex Court has stayed the operation of Judgment and order passed in Anand Chaurasia (supra). Learned APP submits that said matter is not yet decided. There is no stay to the Judgment and order in Vasim Shaikh (supra) and, therefore, at this stage we cannot conclude that Section 328 of the Indian Penal Code is not attracted in cases involving Gutkha and Pan Masala.
from taking into consideration the material in the charge sheet if taken as it is, as to whether ingredients of Section 328 of the Indian Penal Code are made out or not.
Original accused Nos.1 and 2 are not before this Court. Pesent applicant is original accused No.3. Though he has been stated as absconding and charge sheet has been filed under Section 299 of the Code of Criminal Procedure, it can be seen that present applicant is resident of Chhatrapati Sambhajinagar. There is no record to show that the team had gone several times and tried to arrest the applicant.
If we consider the prosecution story, then it can be seen that on secret information the informant and police staff intercepted Honda Activa moped. Two persons were coming on said vehicle. Police found two gunny bags with them. After asking, they told their names as - Shubham Rajendra Ghoderao and Abhishek Udaynarayan Singh. Again when asked about gunny bags, they both told that gunny bags contain Vimal Gutkha. When police asked about Gutkha, Shubham Rajendra Ghoderao told that they have brought the said Gutkha from present applicant. The statements of witnesses have been recorded, who are only the police officers. Though it is stated that two panchas were present at the spot; yet, the said statement which has been allegedly made by Shubham Rajendra Ghoderao would then be inadmissible
under Section 25 of the Indian Evidence Act that is made in the presence of police. Except the said statement there is nothing as against applicant and, therefore, it would be an abuse of process of law if applicant No.3 is asked to face the trial. Case is made out for exercise of powers under Section 482 of the Code of Criminal Procedure. Hence, following order.
ORDER
i) Criminal Application stands allowed.
ii) Charge sheet dated 26.06.2023 i.e. the proceedings in Sessions Case No.18/2024 pending before learned Additional Sessions Judge, Kopargaon, Dist. Ahmednagar arising out of First Information Report vide Crime No.200/2023 dated 30.04.2023 registered with City Police Station, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar, for the offence punishable under Sections 328, 188, 272, 273 read with Section 34 of the Indian Penal Code, 1860, stands quashed and set aside as against applicant Vasim Samad Shaikh only.
( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd