Mumbai, Maharashtra – April 29, 2022 – A Mumbai Sessions Court has granted bail to Awaiz Mohammed Vazir Shaikh, accused in a case involving the seizure of a large quantity of gutkha (chewing tobacco). The court, presided over by Additional Sessions Judge M.A. Bhosale, granted bail after questioning the applicability of stringent charges like Section 328 (causing hurt by means of poison, etc., with intent to commit an offense) and Section 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code (IPC).

Awaiz Mohammed Vazir Shaikh (25) was arrested in connection with C.R. No. 147/2022, registered at J.J. Marg Police Station, for offenses punishable under sections 328, 188, 272 (adulteration of food or drink intended for sale), 273 (sale of noxious food or drink) read with 34 (acts done by several persons in furtherance of common intention) of the IPC, as well as sections 26(2)(p), 26(2)(p)(a), 27(3)(m), 3(p)(zz),(A), and 30(2)(A) of the Food Safety and Standards Act, 2006.

The prosecution alleged that on April 13, 2022, following a tip-off, the police intercepted a tempo bearing registration number MH02-ER-6510 and found pan masala tobacco worth Rs. 4,23,360.

During the bail hearing, Shaikh’s advocate, Ms. Shabnam Shaikh, argued that the charges under sections 328 and 188 of the IPC were not applicable to the case. She pointed out that the tempo and the contraband had been seized, indicating that the investigation was complete. She also emphasized that her client was a resident of Mumbai and was ready to cooperate with the police and abide by any conditions imposed by the court.

The prosecution, represented by Ld. APP Shri. Erande, opposed the bail application, arguing that a large quantity of tobacco pan masala was recovered, and there was a possibility of the accused tampering with prosecution witnesses if released.

Judge Bhosale, after reviewing the submissions and the case records, questioned the applicability of sections 328 and 188 of the IPC.

“As per the record Sec.328 of IPC is invoked by J.J.Marg police station however, it is not the case of prosecution that the accused intentionally stupefying article to the public at large. But it is the case of prosecution that accused found possession of gutkha and pan-masala. Moreover, it is debatable whether Sec.328 of IPC is applicable in the present matter or not,” Judge Bhosale stated in the order.

Regarding Section 188 IPC, the court noted that the J.J. Marg Police Station had failed to observe the procedure under Section 195 of the Criminal Procedure Code (CrPC).

“Thereafter, Sec.188 of IPC is also invoked however, J.J.Marg police station has failed to observe the procedure U/s.195 of Cr.P.C. inabsence of compliance of sec.195 of Cr.P.C. Sec.188 of IPC cannot be invoked,” Judge Bhosale noted.

The court emphasized that the tempo and the contraband had been seized, and the trial would take its course to determine the accused’s responsibility.

“In the meantime, it is the case of prosecution that the muddemal property tempo was seized by police at the time of raid. If accused is involved in the present crime, trial is the best option to fix responsibility, however, trial took its own time to fix responsibility. In the meantime, I found that except this nothing in the reply Exh-2 to refuse bail to the present applicant,” Judge Bhosale stated.

The court granted bail to Shaikh on a personal bond of Rs. 50,000 with one or two solvent sureties of the same amount, subject to the following conditions:

• He must not tamper with prosecution witnesses.
• He must submit his address proof before the Ld. Metropolitan Magistrate.
• He must keep himself away from prosecution witnesses.
• He must not leave the local jurisdiction of the court until the filing of the charge sheet.
• He must appear before the Investigating Officer every Monday, Wednesday, and Friday between 12:00 PM and 1:00 PM until the filing of the charge sheet.

This decision highlights the court’s scrutiny of the charges leveled against the accused and its emphasis on balancing the accused’s rights with the need to ensure public safety.