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IN THE COURT OF SESSIONS FOR GREATER MUMBAI AT MUMBAI
CRIMINAL BAIL APPLICATION NO.1810 OF 2022
CNR NO. MHCC020098092022
Mr. MD Jafar Ashfak Ahmed Shaikh
Age: 38 years, Occ.: Labour,
R/at : Room 1002, Khatija HiTec Tower,
Behram Baug, Jogeshwari (W), Mumbai.
…Applicant/Accused
Vs.
The State of Maharashtra
(At the instance of Crime Branch Unit IX)
…Respondent/State
Appearances :
Mr. Sharif Shaikh, Ld. Advocate for the applicant/accused.
Ms. Ratnavali Patil, Ld. APP for the Respondent/State.
CORAM : H. H. THE ADDL. SESSIONS JUDGE,
SHRI A.A. KULKARNI (C.R. NO.24)
DATED : 26TH JULY, 2022
(ORAL ORDER)
(Dictated and pronounced in the open Court)
This is an application for bail under Section 439 of Cr. P.C.
Heard Ld. Advocate for the applicant and Ld. APP for the State. Perused
documents on record.
2.
The Ld. Advocate for applicant submitted that applicant is
arrested by police in connection with Crime No.25/2022 (Crime
No.314/2022 registered by D.N. Nagar police Station) for the offence
punishable under Sections 328, 188, 272, 273 of IPC read with Section
59 of Food Safety and Standard Act, 2006. It is further contended that
by effecting raid on 25.03.2022 police arrested accused Javed Anwarul
Haque Shaikh and seized Rajnigandha Pan Masala, Rajashri Pan
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Masala, Jagat Tambakhu, Kamlapasand Pan Masala, Blue Vimal Pan
Masala, Tulsi 00 Royal Jafarani Jarda, Black label 18 Tambakhu, Green
Vimal Pan Masala, K.P. Double Block Tambakhu, Green colour V1
Tambakhu, Blue colour V1 Tambakhu, Chocolaty Masala Gutakha, Goa
1000 Pan Masala, Royal 100 Pan Masala, Manikchand Pan Masala, 5G
Silver Pan Masala, Safar Pan Masala, SGR 5000 Pan Masala, Goa Pan
Masala, Rokada Gold Pan Masala, in all goods of worth Rs.24,45,564/.
It is further contended that applicant is arrested on the allegation that
he supplied all the seized goods to the arrested accused at the time of
raid. He further submitted that applicant has no concern with the
alleged offence. Further offence under Section 328 of IPC is not
attracted in view of allegation. Other offences under Sections 188, 272,
273 of IPC are bailable as well as offence under Section 59 of Food
Safety and Standard Act, 2006 is also bailable. In support of his
contention, he relied on judgment of Hon’ble High Court, wherein
Bombay High Court decided ABA No.749/2021 alongwith other
matters. In the said judgment Hon’ble High Court has held that to
attract offence under Section 328 of IPC there should be administration
of poison with intention to commit any offence. In the said judgment
Hon’ble High Court relied on judgment of Hon’ble Supreme Court in
case of Joseph Kurian Philip Jose V. State of Kerala, (1994) 6 SCC
535 and held that mere possession do not attract offence under Section
328 of IPC. In present case also there is allegation against present
applicant is of supply of goods having tobacco banned by State of
Maharashtra. There is no allegation about its administration with
intention to commit offence. Therefore, prima facie except offence
under Section 328 of IPC, other offences are bailable. As the offence
under Section 328 of IPC is not made out, therefore, applicant is
entitled to be released on bail and prayed for grant of bail.
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3.
Ld. APP filed say Exh.2 and opposed the application on the
ground that there are similar type of offences registered against
applicant. Hence, prayed for rejection of the application.
4.
In view of submissions from both the sides and on perusal
of documents on record, allegation against present applicant is about
supply of banned food articles containing tobacco. Except that
allegation, other allegation about administration with intent to commit
any offence is absence. Therefore, view taken by Hon’ble Bombay High
Court and view taken by Hon’ble Supreme Court in case of Joseph
Kurian Philip Jose V. State of Kerala, (1994) 6 SCC 535, in present case
prima facie no offence under Section 328 of IPC is made out against
applicant. Other offences are bailable. Mere pendency of the case,
cannot be a ground to deny bail. Hence, applicant is entitled to be
released on bail. Therefore, I passed the following order :
ORDER
1.
Criminal Bail Application No. 1810 of 2022 is allowed.
2.
Applicant/accused MD Jafar Ashfak Ahmed Shaikh be released on
bail on his furnishing P.R. Bond of Rs.25,000/ along with one or
two sureties of like amount in connection with C.R. No.25/2022
registered with Crime Branch Unit IX, Mumbai.
3.
Applicant/accused shall attend Crime Branch Unit IX, Mumbai
on notice by Investigating Officer.
4.
Applicant/accused shall furnish his residential address proof and
contact numbers to Investigating Officer.
5.
Applicant/accused shall not directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
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to the Court or to any Police Officer.
6.
Applicant/accused shall not leave India without previous
permission of the Court.
7.
Bail before Ld. Court below.
8.
Criminal Bail Application No.1810 of 2022 stands disposed of
accordingly.
Date : 26.07.2022
Dictated on
: 26.07.2022
Transcribed on : 26.07.2022
HHJ signed on : 26.07.2022
[A.A. KULKARNI]
ADDITIONAL SESSIONS JUDGE
GREATER MUMBAI
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date
27.07.2022
Upload Time
4.30 p.m.
Name of Stenographer
PRAJWALA V. PHODKAR
Name of the Judge (With HHJ SHRI. A.A. KULKARNI (CR 24)
Court Room No.)
Date of Pronouncement
JUDGMENT /ORDER
of 26.07.2022
JUDGMENT /ORDER signed by 26.07.2022
P.O. on
JUDGMENT /ORDER uploaded 27.07.2022
on