Bombay High Court
Samir Latif Tamboli vs The State Of Maharashtra on 18 January, 2021
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
37-ABA-119-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 119 OF 2021
Samir Latif Tamboli .... Applicant
Versus
The State of Maharashtra .... Respondent
______
Mr.Dinesh P. Adsule, for the Applicant.
Mr. S.H. Yadav, APP for the State/Respondent.
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CORAM :SARANG V. KOTWAL, J.
DATE :25th JANUARY, 2021 P.C. :
1. The applicant is seeking anticipatory bail in connection with C.R. No. 1147/2020 registered at Karmala Police Station on 28/11/2020 under Sections 188, 272, 273, 328 of the Indian Penal Code and under Section 59 of the Food Security and Standards Act, 2006 .
2. Heard Mr. Dinesh Adsule, the learned advocate for the Applicant and Mr. S.H. Yadav, learned APP for the State.
3. The FIR is lodged by one Umesh Bhuse who was y.s.patil 1 of 6 ::: Uploaded on - 20/01/2021 ::: Downloaded on - 08/02/2021 02:32:15 ::: 37-ABA-119-2021.odt working as Food Safety Ofcer. He has stated in his FIR that on 27/11/2020 a secret information was received by the police that a person was carrying Gutkha with him near Jevur Bus Station. Police Ofcers went to the spot.
That person was arrested. His name was Sufyan Shamshoddin Tamboli. The goods carried by him were examined. He was found to carrying pan masala, scented supari, gutka, scented tobacco worth more than Rs.7000/-. The samples were collected. On inquires with him, he informed that these articles were supplied by the present applicant. On this basis the FIR is lodged.
4. Shri Adsule the learned advocate for the applicant submitted that in such circumstances, Section 328 of the Indian Penal Code is not attracted because there was no "administration" of the substance. He relied on the following cases.
(i) Mainoddin S/O. Hasanji Tamboli Vs.The State of Maharashtra, (ABA No. 171 of 2020) decided on 28/02/2020 by a single Judge Bench at Aurangabad of y.s.patil 2 of 6 ::: Uploaded on - 20/01/2021 ::: Downloaded on - 08/02/2021 02:32:15 ::: 37-ABA-119-2021.odt this Court
(ii) Sambhaji S/O. Raosaheb Adhav Vs. The State of Maharashtra,(ABA No. 692 of 2020) decided on 08/09/2020 by another single Judge of Aurangabad Bench of this Court.
5. He submitted that both these judgments have taken a view that Section 328 of the Indian Penal Code, is not attracted in such cases and other sections are bailable. Therefore the applicant cannot be arrested. He also submitted that since the contraband was already recovered, there was no further necessity of custodial interrogation of the applicant.
6. The learned APP, on the other hand, had relied on the latest Judgment of a single Judge Bench of this Court passed in the Case of Vinod Ramnath Gupta Vs. The State of Maharashtra and Nipul Nagde Vs. The State of Maharashtra passed in ABA No. 2451 of 2020 and 2489 of 2020 respectively dated 06/11/2020.
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37-ABA-119-2021.odt
7. I have considered all these submissions. As far as application of Section 328 of the IPC is concerned, this aspect was extensively dealt with by a single Judge Bench of this Court in the case of Vinod Gupta (supra) decided on 06/11/2020. This Judgment is latest amongst the three Judgments, cited before me. In the case of Vinod Gupta this Court (Coram:- S.K.Shinde J.) has considered some other earlier Judgments and has also considered the ingredients of Section 328 of the IPC. The learned single Judge has considered the reasons and necessity as to why manufacturing and selling of such articles were prohibited in the State of Maharashtra. Considering the reasoning given in this Judgment, I am in total agreement with the view expressed in the case of Vinod Gupta. This being the judgment, later in point of time and since I am agreeing with this view, I am following this judgment in this particular case.
8. In Sambhaji Adhav's case (supra), the reliance y.s.patil 4 of 6 ::: Uploaded on - 20/01/2021 ::: Downloaded on - 08/02/2021 02:32:15 ::: 37-ABA-119-2021.odt was placed on judgment in the case of Anand Ramdhani Chaurasia Vs. State of Maharashtra which was decided on 13/09/2019 in Criminal Writ Petition No. 3606 of 2009. The ratio mentioned in Chaurasia's case was similar to the ratio of Maninoddin Tamboli's case.(supra). In Vinod Gupta's case, a single Judge Bench of this Court, in paragraph No. 6 had observed that the Judgment in Chaurasia's case (supra) was stayed by the Hon'ble Supreme Court vide Order dated 31/08/2020. Therefore in Vinod Gupta's case (supra) a single Judge bench of this Court has practically answered all the issues raised by Shri Adsule in this application.
9. The argument that the contraband articles are already seized and therefore custodial interrogation is not necessary, does not appeal to me. The FIR itself shows that all these banned substances were supplied by the present applicant and therefore, to fnd out his exact participation and role played by him, his custodial interrogation is necessary. Therefore no case for y.s.patil 5 of 6 ::: Uploaded on - 20/01/2021 ::: Downloaded on - 08/02/2021 02:32:15 ::: 37-ABA-119-2021.odt anticipatory bail is made out.
10. The application is therefore rejected.
(SARANG V. KOTWAL, J.)
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