(Order below Exh.1) A.B.A.No.1103/2022

IN THE COURT OF ADDITIONAL SESSIONS JUDGE, NASHIK AT NASHIK ANTICIPATORY BAIL APPLICATION NO.1103 OF 2022

Madhukar Laxman Sangale, Age–55 yrs. ]
Occu – Nil, R/o. 9, Ganjpanth Society, ]
Moarya Niwas, Mhasrul, Tal.Dist.Nashik. ] .. Applicant/accused

V/s.

The State of Maharashtra ]..Respondent/ Through– P.I. Deola Police Station. ] prosecution

Advocate Shri.R.D.Avhad for the applicant/accused.

APP Shri.Kadave for the State.

ORDER BELOW EXH.1

This bail application is filed under Section 438 of the Criminal Procedure Code in connection with C.R.No.22/2022 (CCT NS No.49/22) for offence punishable under Sections 272, 273, 328, 188 r/w. 34 of the IPC registered with Deola Police Station.

2. Facts of the prosecution case is that as per secrete information accused no.1 to 6 in furtherance of common intention bringing Vimal Pan Masala Gutaka in one Eicher Vehicle bearing No.MH-15-GV-7623 despite of knowledge that ‘Gutka’ is banned in Maharashtra State illegally transported Gutka and stored in abovesaid vehicle. Accordingly, offence under Sections 272, 273, 328, 188 r/w. 34 of the IPC registered with Surgana Police Station.

3. The facts of the applicant’s case is that, he is falsely implicated. He has no concerned with the offence. He has no nexus with the co-accused. He has only implicated in this offence as he is owner of the vehicle.

4. Section 328 of the Indian Penal Code is not applicable in this case as no one had administering poison or stupefying, intoxicating or unwholesome drug which causes a hurt to anyone person in the case.

5.Ld. APP Shri.Kadave strongly objected. Ld. Adv. Shri.Avhad placed reliance on land mark judgment of Anand Ramdhani Chaurasia And Anr Vs. The State of Maharashtra And Ors dtd.13 September, 2019 in
Cri. Writ Petition No.3607/2019.

6.Heard both side. Perused application and say. It is settled position of law judgment given by the Hon’ble High Court in Anand Ramdhani Chaurasia (cited supra) that, “The upshot is that Section 328 of the IPC gets attracted in two possibilities one of direct administration of anything with an intent to cause hurt or indirect causation of a thing to be taken by any person with an intent to cause hurt. It is only in the presence of two aforesaid ingredients, the section gets attracted and in the absence of any ‘administration’ to another or the accused ‘causing’ any person to take the substance, person cannot be made liable for an offence under Section 328 of the IPC. The act of storage which is alleged against the Petitioners fall short of the ingredients of Section 328 of the IPC. Mere storage without any further action and on a contemplation that it would be sold in the market, brought by a person from the market and consumed by him is too far fetched consequence of an act of ‘administering’ or ‘causing to be taken’.” “Mere storage cannot even be construed as an attempt to commit an offence under Section
328 of the IPC. Apex Court has held that only preparation is not an attempt and the test for determining whether the act constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless.”

7.In this particular case the allegation levelled against accused no.2 to 6 that all these accused in furtherance of common intention with the help of accused no.1 driver transported, stored the Vimal Pan Masala Gutka for worth of Rs.45,26,315/-. In present scenario, in view of the above cited judgment of Hon’ble Our High Court Section 328 of the IPC can’t be attributed in this case. Whereas all other offences are bailable.

The role played by the accused that he is owner of the Eicher Vehicle bearing No.MH-15-GV-7623. No purpose will suffice by keeping him behind bar as all the muddemal as well as tempo is seized by the investigating agency. Only other accused are yet to be arrested cannot be a ground to deny him right of prayer of bail. Considering the role played by the applicant/accused and as there are no criminal antecedents, I am of the opinion he is entitled for pre-arrest bail subject to stringent condition.

Hence, order –
ORDER1

1..Bail Application is allowed.

2.The applicant/accused i.e. Madhukar Laxman Sangale shall be released on bail, in the event of his arrest by Deola Police Station in CR No.22/2022 registered for the offence punishable under Section 272, 273, 328, 188 r/w. 34 of the IPC on executing PR Bond of Rs.25,000/- with one or two solvent surety of like amount on the following conditions:

a) That the 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 them from disclosing such facts to the Court or to the police officer.

b) The applicant shall attend Deola Police Station on every Monday in between 11.00 a.m. to 2.00 p.m. till filing of charge-sheet.

c) If applicant breach any of the abovesaid conditions it would be a cause to cancel the bail.

3. Concerned Police station be informed accordingly.

4.The prayer for release on provisional cash bail in like amount is allowed with eight weeks time to furnish the surety.

5.Criminal Pre-arrest Bail Application stands disposed of accordingly.

Digitally signed by UMESHCHANDRA UMESHCHANDRA JAIKUMAR MORE JAIKUMAR MORE Date: 2022.10.04 16:09:57 +0530 (Dr. U.J. More) Nashik. Additional Sessions Judge Date : 04.10.2022
Nashik.