Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT - BENCH AT AURANGABAD
PRAKASH D. NAIK, J
PATHAN SHAFI KHAN RAHEMAT KHAN – Appellant
Versus
THE STATE OF MAHARASHTRA – Respondent
ANTICIPATORY BAIL APPLICATION NO.1405 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1118 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1122 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1155 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1156 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1160 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1165 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1169 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1170 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1221 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1222 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1233 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1235 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1241 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1267 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1317 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1330 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1345 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1346 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1363 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1365 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1375 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1464 OF 2021 | ANTICIPATORY BAIL APPLICATION NO.1487 OF 2021

Advocates:
For the Appellants/Petitioners: Mr. Anil Pawar, Mr. A. R. Syed, Mr. R.P. Mote, Mr. Chaitanya C. Deshpande, Mr.C.V. Bodkhe, Mr. P.P. More, Mr. B.N. Gadegaonkar, Mrs. Ashwini Lomte, Mr. R.R. Karpe, Mr. Manish Tripathi, Mr. S.S.Panale, Mr. N.L. Choudhari, Mr. T.M. Venjane, Mr. Mahesh Bhosale, Mrs. Ashwinin Lomte, Mr. Sagar S. Chitre, Mr. V.B. Patil, Mr. A.M. Inamdar, Mr. R.G. Hange, Mr. A.R. Syed, Mr. G.R. Syed, Mr. B.N. Gadegaonkar
For the Respondents: Mr. A.V. Deshmukh, Mr. S.B. Narwade, Mr. A.S. Shinde, Mr. V.S. Badakh

Anticipatory bail applications related to the Food Safety Act were denied due to sufficient evidence of complicity in distributing harmful contraband, validating IPC Section 328's application despite arguments to the contrary.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 438 - Food Safety and Standards Act, 2006 - Sections 26, 27, 30 and 59 - Indian Penal Code, 1860 - Sections 188, 272, 273, 328 - Anticipatory bail applications rejected in offences relating to possession and distribution of contraband substances prohibited by the Food Safety and Standards Act - Applicability of IPC Sections clarified, specifically that mens rea is required for Section 328 not being proved in these cases - Court held that essential ingredients to substantiate the offence under Section 328 are present due to the nature of the contraband involved. (Paras 1-20)

Facts of the case:
The applications were filed by various applicants involved in cases related to the possession, distribution, or sale of pan masala and gutkha, which are banned products under Food Safety regulations - Claims made argued that invoking IPC Sections was invalid, particularly Section 328, contending that it was not applicable as no consumer actually ingested the prohibited substances.

Findings of Court:
The court found substantial evidence indicating complicity in the illegal trade of harmful substances, justifying the invocation of IPC provisions including Section 328 observing that mere knowledge of prohibited nature is not isolated from criminal intent.

Issues: The main issues centered on the applicability of IPC Sections to the offences under the Food Safety and Standards Act, and whether the elements of mens rea were present to substantiate charges of endangerment to life.

Ratio Decidendi: The court concluded that substantial risk to public health and safety constituted a basis for section applicability, reinforcing that these regulations must be enforced to curb illegal practices pertaining to harmful food items.

Result: Anticipatory bail applications were rejected.

Table of Content
1. anticipatory bail applications with common facts (Para 1 , 2 , 3)
2. arguments against registration of ipc offences (Para 4 , 5)
3. prosecution's counterarguments on applicability of ipc (Para 6 , 7)
4. legislative framework and public health considerations (Para 8 , 9)
5. consideration of previous case decisions and their implications (Para 10 , 11)
6. stay on legal precedents and relevance to current cases (Para 12 , 13)
7. importance of applicant's knowledge of harmful substances (Para 14 , 15 , 16)
8. authorization for judicial proceeding in light of public interest (Para 17 , 18)
9. final opinion on rejection of anticipatory bail applications (Para 19 , 20)
10. final ruling on bail applications and interim measures (Para 22 , 23 , 24)

COMMON ORDER :

1. These applications are preferred under Section 438 of the Code of Criminal Procedure (for short “Cr.P.C.”) seeking anticipatory bail in connection with the First Information Reports (for short “F.I.R.”) against them. In all these applications, the offences were registered under Sections 26 (2) (iv), 27 (3) (d), 27 (3) c), 30 (2) (a), Sections 3, 59 of the Food Safety and Standards Act , 2006 and under Sections 188 , 272, 273, 328 of the Indian Penal Code (for short “I.P.C.”).

2. Since common question is involved in all these applications, they were heard together and disposed of by common order.

3. The common grounds urged in these applications seeking anticipatory bail are as follows :

(I) The police officer could not have registered offences punishable under Sections 188 , 272, 273, 328 of the I.P.C. since the Food Safety Standards Act makes the provision for initiating action for such acts and recourse could have been taken under the said provisions only.

(ii) Except Section 328 of I.P.C. all the other offences are bailable in nature.

(iii) The offence under Section 328 of I.P.C. is not attracted applicable in the facts of these cases.

4. Learned Advocate for the applicant in ABA No. 1405/2021 submitted that mens rea is necessary to constitute offence under Section 328 of I.P.C. There is no consumption of prohibited substance. Basic ingredients of Section 328 of I.P.C. are absent. He relied on decision of Apex Court in the case of Joseph Kurion Philip Jose vs State of Kerala , AIR 1995 (SC) 4. Learned Advocate for applicant in ABA No. 1122/2021 submitted that the applicant is owner of vehicle. Other accused were arrested and released on bail. He was granted interim relief and he has co- operated with investigation. Learned Advocate for applicant in ABA No. 1156/2021 submitted that Section 328 of I.P.C. is non-bailable. Other offences are bailable. Incident is of 17.08.2021. F.I.R. is lodged on 20.08.2021. Sale of Gutka is banned. Other substances are not prohibited. Section 328 of I.P.C. is not attracted. Except stating that he is owner of shop, there is no role attributed to him. Learned APP Submitted that Pan Masala is banned / prohibited substance. Learned Advocate for applicant in ABA No. 1160/2021 submitted that applicant has co-operated with investigation. Learned A.P.P. submitted that, applicant ran away from the spot. Statement of independent witness shop owner is recorded. Custody of accused is required. Learned Advocate for applicant in ABA No.1165/2021 submitted that, applicant is sought to be arrested on suspicion. Transportation does not amount to commission of offence. Custody not necessary. He relied on decision of this Court in ABA No. 944/2020 and group matters dated 30.09.2021 (Coram : V.G. Bisht, J.). Advocate for applicant in ABA No. 1169/2021 submitted that Gutka was found away from shop of accused, Section 328 of I.P.C. is not applicable. It requires administration / intoxication on somebody. The police have no authority to register F.I.R. Driver was granted bail. Learned A.P.P. submitted that applicant is the owner. Custody is necessary. Advocate for applicant in ABA No. 1170/2021 submitted that Gutka is not found in his shop. Section 328 of

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