An individual cannot be arrested without adequate evidence establishing their involvement in the crime; anticipatory bail granted when no direct evidence is presented.

ORDER :

1. The applicant is apprehending his arrest in connection with Crime No.106 of 2021 registered with Shirpur Taluka Police Station, District-Dhule for the offence punishable under Sections 188 , 272, 273, 328 of the Indian Penal Code read with Sections 26 (2), 26(2)(iv), 27(3)(d), 27(3)(e), 30(2)(a), 3 of the Food Safety and Standards Act , 2006.

2. Heard learned Advocate for the applicant and learned APP for the respondent – State.

3. It has been vehemently submitted on behalf of the applicant that perusal of the First Information Report would show that it was registered against two persons, namely, Ajim Wahid Shaikh and Akram Shabbir Ali who found to be transporting banned Gutka / tobacco packets in the vehicle bearing No. CG- 04-MG-1807. It is the further prosecution story that on interrogation, said two persons disclosed the name of the applicant by stating that the said Gutka packet were being transported from Indore to Bhiwandi at the instance of the applicant. That means, on the basis of the statement of the accused the police want to arrest the applicant. Learned counsel submits that the copy of the RC Book placed on record clearly shows that the said vehicle is not owned by the applicant. Thus, there was no connecting material with the police to connect the present applicant with the crime. His custodial interrogation is not necessary.

4. Per contra, the learned APP strongly opposed the Application and submitted that as per the police report the co-accused Ajim Wahid Shaikh and Akram Shabbir Ali were found to be transporting the banned tobacco / Gutka. The purpose for which the tobacco is banned in the State of Maharashtra is well known and it is in the interest of public health. However, the information has been given by the co-accused that they were transporting the said Gutka at the instance of the present applicant and therefore his custody is required to reveal as to how he deals in such hazardous goods. Though copy of the RC Book placed on record reveals that the said vehicle is not owned by the applicant but in the investigation it is revealed that said vehicle is owned by brother of the applicant and it was used for transporting banned articles at the instance of the applicant and therefore custodial interrogation of this applicant is necessary.

5. Before proceeding further, it will not be out of place to mention that learned Advocate for the applicant tried to submit that offence under Section 328 of the Indian Penal Code will not be attracted in this case as the person was not present before any accused person who could be administered poisonous substance. He relied on the decision in Anand Ramdhani Chaurasia and another vs. State of Maharashtra , 2019 SCC OnLine Bom. 1857. Learned Advocate for the applicant also relied on the decision by this Court in Anticipatory Bail Application No. 944 of 2020 with companion matters, decided on 30th September, 2021 (Coram:V.G. BISHT, J.), whereby in similar situations the applicants therein who have been arrested holding or possessing Gutka, have been released on anticipatory bail, holding that offence under Section 328 of the Indian Penal Code has not been made out. Ratio laid down in Joseph Kuruian Philip Jose vs. State of Kerala , (1994) 6 SCC 535 was relied.

6. At the outset, it is to be noted that though this Court (Coram:V.G. BISHT, J.) in the aforesaid Judgment and order in Anticipatory Bail Application No.944 of 2020 with companion matters, had come to the conclusion that in such facts of the cases offence under Section 328 of the Indian Penal Code cannot be said to have been made out, there is another set of decision in Anticipatory Bail Application