Bombay High Court
Vikas Umakant Chaudhary vs The Sr. Police Inspector And Anr on 29 June, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.782 OF 2022
Vikas Umakant Chaudhary .. Applicant
Versus
The Sr.Police Inspector & Anr. .. Respondents
...
Mr.Vivek B. Pandey with Ms.Jaya Sharma, Mr.Ashish Singh,
Mr.Ayush Tiwari, Mr.Arun Gupta i/b Mr.Arun Gupta for the
Applicant.
Ms.Anamika Malhotra, A.P.P. for the State/Respondent.
...
CORAM: BHARATI DANGRE, J.
DATED : 29th JUNE, 2022
P.C:-
1. Heard learned counsel for the applicant and learned
A.P.P. for the State.
2. The applicant is charge-sheeted in C.R.No.I-856 of 2021
registered with Navghar Police Station for the offences
punishable under Sections 328, 188, 273 read with 34 of the
Indian Penal Code and under Sections 26(2)(iv), 30(2)(a) of
Food Safety and Standard Act, 2006. He came to be arrested
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in connection with the said C.R. on 14/12/2021 and, since
then, he is incarcerated.
3. On 14/12/2021, the complainant received an information
that prohibited articles have been stored in Gala No.13/A, Jai
Ambe Apartment, Bhayander (E). A raid was conducted and
they found one Bansaraj Yadav present in the premises. On
search, Vimal Supari Pan Masala, scented tobacco worth
Rs.17,888/- found in the said premises. Said Bansaraj Yadav
informed that one Vikas Chaudhary (present applicant), is
supplying the said contraband articles. On such information
being supplied, police alongwith panchas reached Dahisar
check post where they found the applicant alongwith his
vehicle. During search, the vehicle found containing
contraband worth Rs.2,64,600/-. On further interrogation, the
applicant disclosed that he has kept contraband articles i.e.
tobacco and panmasala worth Rs.3,64,888/- in his house. The
panchanama was carried out and the prohibited substance
came to be seized. The applicant came to be arrested and since
then, he is behind the bars.
4. Barring the offence u/s.328 of the IPC, all other offences
are bailable. The position of law whether an offence under
Section328 gets attracted when the prohibited substance, is
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transported or supplied, but it is caused to be consumed is
attracted or not, till date, is not crystallized.
A decision of the Division Bench of this Court in case of
Anand Ramdhani Chaurasiya & Anr Vs. The State of
Maharashtra [(2019) SCC Online Bombay 1857], where a view
was taken that Section 328 IPC could not have been invoked,
has been stayed by the Hon'ble Apex Court. However, in
Special Leave Petition No.843 of 2021 Mohd. Ali Rehman @
Mohammed Ali Abdul Raheman Shaikh Vs. State of
Maharashtra, the Hon'ble Apex Court, on 13/11/2021 took
note of the pending matter before it, in regards to invocation of
Section 328 of the IPC. The Special Leave Petition is directed
to be tagged with the Special Leave Petition fled by the State of
Maharashtra in case of Anand Chaurasiya (supra). The
Hon'ble Apex Court has directed the Investigating Offcer not
to arrest the petitioner subject to he rendering co-operation.
5. Considering the conundrum of the applicability of
provisions of Section 328 in a situation like this, and since the
issue is pending before the Hon'ble Apex Court, pursuant to
the view of the Division Bench of this Court and since
judgment of the Division Bench taking a view that it cannot be
invoked, has been stayed, the following order is passed.
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: ORDER :
(a) Application is allowed.
(b) Applicant -Vikas Umakant Chaudhary shall be
released on bail in connection with C.R.No.I-856 of 2021 registered at Navghar Police Station on furnishing P.R. Bond to the extent of Rs.50,000/- with one or two sureties of the like amount.
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Offcer. The Applicant should not tamper with evidence.
(d) The Applicant shall attend the trial on regular basis, unless specifcally exempted by the trial Court.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 01/07/2022 ::: Downloaded on - 01/07/2022 22:42:24 :::