Bombay High Court
Sayyed Aarif Sayyed Umar vs The State Of Maharashtra on 22 June, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:16908
13.aba1739-2023.doc
SA Pathan
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.1739 OF 2023
Sayyed Aarif Sayyed Umar ... Applicant
V/s.
The State of Maharashtra ... Respondent
Mr. Mahendra N. Sandhyanshiv, for the Applicant.
Mrs. Veena Shinde, APP for the respondent/State.
Mr. Pathare, PSI, with Mr. S.S. Rangade, police
constable Malegaon police station.
CORAM : AMIT BORKAR, J.
DATED : JUNE 22, 2023
P.C.:
1. The applicant in Anticipatory Bail Application is seeking relief under Section 438 of the Criminal Procedure Code, 1973 in connection with C.R. No.I-107 of 2023 registered with Malegaon Police Station, Nashik for offences punishable under Sections 188, 269, 272, 273, 328 of the Indian Penal Code, 1860.
2. The case of the prosecution in short is that on 22 May 2023 at about 10:15 pm, at Shivaji Maharat Statute, near Pivala Petrol Pump, on Mumbai-Agra Road,m Malegaon, one parrot colour vehicle came from Daregaon village towards Mosam bridge, Malegaon. They gave signal and stopped the said vehicle there when the driver and one person from the said vehicle stopped it there and started to run away. They disclosed their names as 1 ::: Uploaded on - 23/06/2023 ::: Downloaded on - 23/06/2023 22:08:55 :::
13.aba1739-2023.doc Sanjay Bhagwan Chavan and Baban Sambhaji Khairnar. According to prosecution on verifying the said vehicle, they found packets of Scented Panmasala, Gutkha, VI Big Tobaco, Keshar Panmasala, V-1 Tobacco and other articles along with TATA Parrot colour Vehicle total worth of Rs.1,78,400/-. They seized the contrabaned articles and said vehicle. The accused stated, in his statement, that the applicant is supplier of banned substance.
3. Apprehending arrest, the applicant filed application under Section 438 of the Criminal Procedure Code, 1973 before the Sessions Court. The learned Sessions Court rejected the application by order dated 12 June 2023. Aggrieved thereby, the applicants have filed present anticipatory bail application.
4. Learned advocate for the applicant submitted that the applicant has not been named in the first information report. He has been falsely implicated. Learned advocate for the applicant relying on unreported orders of this Court in a group of matters, lead matter being Anticipatory Bail Application No.944 of 2020 (Manjubhai Manchakrao Rokde v. The State of Maharashtra) decided on 30 September 2021 and Anticipatory Bail Application (St.) NO.2451 of 2020 (Vinod Ramnath Gupta v. The State of Maharashtra) decided on 6 November 2020 submitted that learned Judge of this Court granted anticipatory bail to the applicants/accused of commission of offence under Section 328 of the Indian Penal Code. He also invited my attention to the judgment of the Apex Court in S. Kasi v. State through the Inspector of Police Samaynallur Police Station Madurai District reported in 2020 SCC OnLine SC 529 to urge that the principle of 2 ::: Uploaded on - 23/06/2023 ::: Downloaded on - 23/06/2023 22:08:55 :::
13.aba1739-2023.doc law enunciated by another Bench is binding on coordinate Bench of the High Court and the only course available is to refer the matter to the Larger Bench. The prohibited substances has been seized and, therefore, custodial interrogation of the applicant is not necessary. He is ready to cooperate with the investigation.
5. Per contra, learned APP submitted that the applicant is in the business of supplying prohibited substances. It is necessary to unearth traces of larger supply of banned substances. He submitted that the coordinate Benches of this Court in case of Sagar Sadashiv Kore v. State of Maharashtra, reported in 2021 SCC OnLine Bom 6568 and in Ankush v. State, thr PSO, reported in 2020 SCC OnLine Bom 11384 and unreported judgment of this Court in Anticipatory Bail Application No.483 of 2021 (Mohammed Ali Raheman Alias MohammedAli Abdul Raheman Shaikh v. The State of Maharashtra) decided on 24 March 2021 refused to grant pre-arrest protection to the applicants therein having similar role attributed to the applicants therein.
6. I have considered the submissions on behalf of both the sides. Prima facie, the statement of the person from whom prohibited substance was seized named the applicant purchaser. Considering the nature of allegations against the applicant, it is necessary that detailed investigation as regards existence of any racket operating in prohibited substance need to be investigated. It is also necessary to investigate source of such supply and acquisition. It is also necessary to investigate into the names and identity of purchasers of the prohibited substance from the applicants.
3 ::: Uploaded on - 23/06/2023 ::: Downloaded on - 23/06/2023 22:08:55 :::13.aba1739-2023.doc
7. Learned Single Judge of this Court in Ankush (supra) in paragraph 8 observed thus:
"8. It is not in dispute that Gutka (chewing tobacco made from crushed areca nut, tobacco, catechu, paraffin wax, slaked lime etc.) and Pan Masala (combination of betel leaf and areca nut with or without tobacco) are seriously detrimental to health and the consumption thereof is identified as a major cause of oral cancer. The said products contain carcinogens and are known to be highly addictive. The State Government has exercised, from time to time, the statutory power under the FSS Act to prohibit the manufacture, storage, distribution and transport or sale of tobacco, whether flavoured, scented or mixed with other ingredients such as nicotine, menthol etc."
8. The coordinate Bench has relied upon an unreported judgment of the Division Bench of this Court (Aurangabad Bench) in the case of Zahir Ibrahim Panja v. State of Maharashtra in Criminal Application No.4968 of 2016.
9. In so far as the judgment in the case of Manjubhai Rokde and Vinod Ramchandra Gupta (supra) are concerned, it needs to be noted that in both the orders no principle of law arose for consideration and no principle of law was laid down. It is well settled that an order of bail application is summary in nature based on summary facts which can never be relied as a precedent or can be cited as an authority laying down proposition of law by this Court unless and until principle of law arise for consideration and the order lays down principle of law. A decision is an authority for what it actually decides. The essence of a decision is its ratio and not every observation found therein nor what legally follows from the observations made in the order. A case cannot be an 4 ::: Uploaded on - 23/06/2023 ::: Downloaded on - 23/06/2023 22:08:55 :::
13.aba1739-2023.doc authority on the point of a fact. Each case has to be decided in the light of circumstances existing in it. A precedent is a judicial decision which lays down a principle of law. Generally bail orders in their operative part proceed on peculiar facts of each case. Sometimes facts are not stated in the order considering complexity of facts and circumstances of the case. Therefore, generally bail orders without laying down principle of law cannot be regarded as an authority on a point of fact. Therefore, in my opinion, both the judgments cited by the advocate for the applicant in the absence of proposition of law being decided cannot be treated as a precedent laying down principle of law. The orders relied upon by the applicant, therefore, are of no help to the applicant.
10. Therefore, in my opinion, considering the allegations against the applicant, no case for grant of pre-arrest protection is made out.
11. Both the anticipatory bail applications are, therefore, rejected. No costs.
(AMIT BORKAR, J.) 5 ::: Uploaded on - 23/06/2023 ::: Downloaded on - 23/06/2023 22:08:55 :::