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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL

APPLICATION (BA)

NO. 1339/2021

Vijaysingh @ Dnyaneshwar @ Gotya Raghunandan Pawar...Versus...State of

Maharashtra

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders or directions

and Registrar's orders

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Mr. H.R.Gadhia, Advocate for applicant

Mr. I. Damle, APP for Respondent State.

CORAM : AVINASH G. GHAROTE, J.

DATE : 13/01/2022

Heard Mr. Gadhia, learned counsel for the

applicant and Mr. Damle, learned APP for State.

The facts of the case are that, the applicant

has been arrested on 25.11.2021 in Crime No. 221/2021

for the offences punishable under Sections 188, 272, 273,

328 of the IPC as well as under Sections 26(2)(i), 26(2)

(iv), 26(2)(v), 27(2)(e), 30(2)(a) and 59 of the Food

Safety and Standard Act 2006. The FIR indicates that on

24.11.21 when the I.O. and other police staff were doing

vehicle checking on Malkapur-Kurha road at Harsoda

diversion, upon receipt of information that a person is

carrying contraband (Ghutka) on his motor-cycle

proceeding on the aforesaid road, the panchas were called

and after disclosing them that the information was

received, the applicant was apprehended on his motor-

cycle with a gunny bag, which upon search, was found to

contain Ghutka worth Rs. 22,000/- in his possession

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which was seized and sent for chemical analysis. The

applicant came to be arrested on 25.11.2021 and is in

MCR, since the PCR was refused, though demanded on the

ground that the source from which the contraband articles

were procured was to be ascertained by custodial

interrogation.

The request for bail has been rejected by the

Additional Sessions Judge, Malkapur on 13.12.2021,

noting the social impact of the crime on the poor strata of

the society and the non-cooperation of the applicant with

the investigating machinery.

Mr. Gadia, learned counsel for the applicant

submits that considering the nature of the offence and the

fact that the PCR was refused, there is no further necessity

of incarceration of the applican,t who is in MCR since

26.11.2021. He further submits that in the given case,

even Section 328 of the IPC may not be attracted, for

which reliance is placed upon Ganesh Pandurang Jadhao

vrs. State of Maharashtra and others; Cri W.P. No. 1027/15

decided on 15.10.2020 and though the operation of the

said judgment has been stayed by the Hon’ble Apex Court

in SLP No. 5861 of 2020 by an order dated 7.1.2021,

however, relying upon Chhaya Jasvantsingh Hajari and ors

vrs. Committee for Scrutiny and Verification of Tribe

Claims and others, 2018 (6) Bom. C.R. 492, it is submitted

that merely grant of stay by the Hon’ble Apex Court does

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not take away the efficacy of the judgment rendered by

learned Division Bench and therefore, what has been held

in Ganesh Pandurang Jadhao would prevail.

Learned APP opposes the application and

submits that production, manufacture, sale, transport of

Ghutka has been prohibited in the State of Maharashtra

and apart from Section 328 of the IPC, the action of the

applicant also attracts the provisions of Sec 26(2)(i),

26(2)(v), 26(2)(iv), 27(2)(e), 30(2)(a) of the Food Safety

and Standard Act, 2006. Inviting my attention to the

judgment in Union of India and others vrs. Unicorn

Industries; (2019) 10 SCC 575 and specifically para 27, it

is contended that even the Hon’ble Apex Court has taken

judicial notice of the var