Syed Jalal Syed Afsar v. The State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD ANTICIPATORY BAIL APPLICATION NO.159 OF 2022 Syed Jalal S/o Syed Afsar ...APPLICANT
VERSUS
The State of Maharashtra ...RESPONDENT ...
Mr.Rahul R. Karpe Advocate for Applicant.
Mr.A.M. Phule, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI, J.
DATE : 21st FEBRUARY, 2022 ORDER :
1.
The applicant is apprehending his arrest in connection with Crime No.256 of 2021 registered with Basmath (Rural) Police Station, District-Hingoli for the offence punishable under Section 328, 188 read with Section 34 of the Indian Penal Code along with Sections 26(2), 27, 23 of the Food Safety and Standards Act, 2006.
2.
Heard learned Advocate for the applicant and learned APP for the respondent - State.
3.
It has been vehemently submitted on behalf of the applicant that perusal of the First Information Report would show that it was registered against the persons, namely Shaikh Sikandar Shaikh Khaja, Shaikh Bablu Shaikh Wahab and Shaikh Majid Shaikh Wahab. It is submitted that First Information Report would show that accused - Shaikh Sikandar Shaikh Khaja was caught red handed by the raiding team, who was found to be transporting banned Gutka / Tobacco packets in the vehicle bearing No.MH-12-NB-3501. It is the further prosecution story that on interrogation, said accused Shaikh Sikandar Shaikh Khaja disclosed the name of the present applicant as the person from whom he has brought the said Gutka. That means on the basis of the statement of the accused, the Police want to arrest the present applicant. Learned counsel submits that in the First Information Report, name of the present applicant is not mentioned. There was no connecting material with the Police to connect the present applicant with the crime. His custodial interrogation is not necessary.
4.
Per contra, the learned APP strongly opposed the Application and submitted that as per the Police report the coaccused Shaikh Sikandar Shaikh Khaja was found to be
transporting the banned Gutka / Tobacco. The purpose for which the Gutka is banned in the State of Maharashtra is well known and it is in the interest of public health. However, the information has been given by the co-accused that he has brought the said Gutka from the present applicant and therefore, his custody is required to reveal as to how he deals in such hazardous goods which are causing health problems to the generations. 5.
Before proceeding further, it will not be out of place to mention that there are two sets of decisions which say that offence under Section 328 of the Indian Penal Code cannot be said to have been made out and another set of decisions say that under these circumstances as regards Gutka or scented betel-nut Section 328 of the Indian Penal Code would be attracted. In Anand Ramdhani Chaurasia and another vs. State of Maharashtra, 2019 SCC OnLine Bom. 1857, and in Anticipatory Bail Application No. 944 of 2020 with companion matters, decided on 30th September, 2021 (Coram:V.G. BISHT, J.), whereby in similar situations the applicants therein who have been arrested holding or possessing Gutka, have been released on anticipatory bail, holding that offence under Section 328 of the Indian Penal Code has not been
made out. Ratio laid down in Joseph Kuruian Philip Jose vs. State of Kerala, (1994) 6 SCC 535 was relied. 6.
At the outset, it is to be noted that though this Court (Coram:V.G. BISHT, J.) in the aforesaid Judgment and order in Anticipatory Bail Application No.944 of 2020 with companion matters, had come to the conclusion that in such facts of the cases offence under Section 328 of the Indian Penal Code cannot be said to have been made out, there is another set of decision in Anticipatory Bail Application No.1405 of 2021 with companion matters, decided by this Court (Coram: PRAKASH D. NAIK, J.) on 23rd December 2021, wherein it has been held that in such cases offence under Section 328 of the Indian Penal Code can be said to have been made out and hence certain applications were rejected and certain applications came to be withdrawn when disinclination was shown by the Court.
In both the matters, mainly decisions of this Court in Anand Ramdhari Chaurasia and another vs. State of Maharashtra (supra) and in Ganesh Pandurang Jadhav vs. State of Maharashtra (Criminal Writ Petition No.1027 of 2015 with companion matters) were referred and note was taken that Hon'ble Apex Court has stayed the decisions of this Court.
sought to be quashed under Section 482 of the Code of Criminal Procedure Code on the ground that offence under Section 328 of the Indian Penal Code has not been made out. However, note of other two decisions by the Division Bench of this Court were also taken. One is in the case of Vasim S/o Jamil Shaikh vs. State of Maharashtra and another in Criminal Application No. 4353 of 2016 decided on 29th November 2018, wherein this Court was also one of the party, (CORAM: T.V. NALAWADE AND SMT. VIBHA KANKANWADI, JJ.), and in that decision view was taken that the contention of the applicant that in such cases provisions of Section 328 of the Indian Penal Code cannot be used, is unacceptable. Thereafter, there is also case of Zahir Ibrahim Panja and others vs. State of Maharashtra and others (Criminal Application No.4968 of 2016) decided on 16th October 2018, wherein it was held that Section 328 of the Indian Penal Code can be invoked in such cases. 7.
As regards the decision in Joseph Kurian Philip Jose is concerned, it was referred in Anand Ramdhari Chaurasia (supra), wherein Vasim Shaikh's case (supra) was held to be per incuriam in view of Joseph Kuruian Philip Jose. However, the position stands and it has been so considered in Anticipatory Bail Application No.1405 of 2021 (supra) that
the said decision has been stayed by the Apex Court and therefore, this Court would agree with the reasons given by this Court (CORAM: PRAKASH D. NAIK, J.) in Anticipatory Bail Application No.1405 of 2021 with companion matters, decided on 23rd December 2021.
8.
In spite of the fact that in such cases offence under Section 328 of the Indian Penal Code can be invoked, now it is required to be seen, whether there is any material to connect present applicant with the crime. The name of the present applicant is stated to have been disclosed by the accused who has been arrested, namely, Shaikh Sikandar Shaikh Khaja. Important point to be noted is that the contents of the First Information Report would show that said accused was arrested on 16th December 2021 and he made alleged statement on 19th December 2021. However, till present applicant had filed application for anticipatory bail on 22nd December 2021 and even after its rejection by the learned Additional Sessions Judge, Basmathnagar on 7th January 2022, the Investigating Officer never conducted raid at the place of the present applicant and has not utilized the information received from the accused who was arrested. Now, except statement of the said accused, there cannot be any evidence to connect the present applicant with the
crime. The said statement of that accused has no evidentiary value. Therefore, custodial interrogation of the present applicant is not required for the purpose of investigation. The investigation can still go on if the attendance is directed to be given and therefore the Application deserves to be granted. Hence the following order is passed:-
O R D E R
i) Application stands allowed.
ii) In the event of arrest of the applicant - Syed Jalal S/o Syed Afsar in connection with Crime No.256 of 2021 registered with Basmath (Rural) Police Station, District-Hingoli for the offence punishable under Section 328, 188 read with Section 34 of the Indian Penal Code along with Sections 26(2), 27, 23 of the Food Safety and Standards Act, 2006, he be released on bail on PR Bond of Rs.30,000/- (Rupees Thirty Thousand) with two solvent sureties of Rs.15,000/- (Rupees Fifteen Thousand) each. iii) Applicant shall attend Basmath (Rural) Police Station on every Monday between 10.00 a.m. to 2.00 p.m. till filing of the charge-sheet and co-operate with the investigation.
iv) Applicant shall not tamper with the evidence of the prosecution in any manner.
[ SMT. VIBHA KANKANWADI , J. ] asb/FEB22