Final Order 1

Order Details: Copy of Order - 1
Pdf Text: - 1 of 5 - (ORDER ON B.A. NO.133/2026)
B.A. NO.133/2026
C.R. NO. 78 OF 2026 OF PS. SHIVAJINAGAR
P.S. SHIVANINAGAR -Vs- Mohd. Afzal @ Kaliya
Mohd. Azad Shaikh
U/sec. 123 and 223 of the BNS & for contravention of
various provisions of the Food Safety & Standards
Act, 2006 punishable under Section 59 of the Food
Safety & Standards Act, 2006.
ORDER PASSED ON BAIL APPLICATION
1. This application is filed by Mohd. Afzal @ Kaliya Mohd.
Azad Shaikh for grant of bail under Section 480 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 in Crime No.78/2026 under Section
123 and 223 of the BNS & for contravention of various provisions of the
of the Food Safety & Standards Act, 2006 punishable under Section 59
of the Food Safety & Standards Act, 2006.
2. Perused the application, remand papers and say of I.O. and
the learned APP. Heard the learned APP on behalf of the State and
learned defense counsel for the accused. The learned APP has opposed
to present application on the ground that the offences levelled against
the accused are serious in nature. According to her, the contraband
articles are declared as unsafe food keeping in view the general health
and safety of public at large. It is treated as a most hazardous food
article, the regular consumption whereof is bound to result into death
and, therefore, prima facie case was made out as huge quantity of
worth 5,54,400	₹ /- seized in the present crime. The offence under
Section 123 of BNS is exclusively triable by the Hon'ble Court of
Sessions. Therefore, this Court has no jurisdiction to decide the present
application. Lastly, she has submitted that, the investigation is in
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progress and if the bail is granted, accused may commit similar offence
in future. Hence, she prayed for rejection of this application. The I.O.
has resisted the application on the ground that, if the applicant/accused
is released on bail, he commit similar offence and may tamper with the
prosecution witnesses and may threaten to them.
3. On the contrary, the learned defence counsel has
vehemently argued that though Section 123 of BNS is triable by the
Hon'ble Court of Sessions, but it is not prima-facie attracted as there is
no attempt of administering or causing to be taken poison or such
alleged substance. He further submitted that Section 223 of the BNS &
for contravention of various provisions of the Food Safety & Standards
Act, 2006 punishable under Section 59 of the Food Safety & Standards
Act, 2006 are also not prima-facie made out against this accused,
therefore, this Court has every jurisdiction to grant bail of accused. He
further submitted that the accused is law abiding person and he is
residing at Mumbai. He is falsely implicated in this case. The accused is
ready to abide any condition, which will imposed by this Court.
4. It is submitted by the learned Counsel for the accused that,
the Hon’ble Bombay High Court in
Anand Ramdhani Chaurasiya Vs.
State of Maharashtra (Criminal Writ Petition No.3607 of 2019) and
Ganesh Pandurang Jadhao Vs. State of Maharashtra (Criminal Writ
Petition No.1027 of 2015), has held that, mere transportation/
possession of contraband articles would not attract Section 328 of
Indian Penal Code (Now, Sec.123 of the BNS).
5. In aforesaid judgments, the Hon'ble Bombay High Court
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has negatived the applicability of Section 328 of the IPC for mere
possession or transporting of prohibited food articles like
Pan Masala
and
Gutkha. However, the Hon’ble Apex Court in
State of Maharashtra
Vs. Anand Ramdhani Chaurasiya (SLP No.004101/2020) and
State of
Maharashtra Vs. Ganesh Pandurang Jadhao (SLP No.005861/2020),
has stayed the operation of judgments of the Hon’ble Bombay High
Court in
Anand Chaurasiya and Ganesh Jadhao (cited supra). Hence,
the issue of applicability of Section 328 of the IPC is now under
consideration before the Hon'ble Apex Court.
6. It is the contention of the prosecution that Section 123 of
BNS is triable by the Hon'ble Court of Sessions, therefore, this Court has
no jurisdiction to release to the accused on bail. In this regard, the
Hon’ble Apex Court in the case of
Prahlad Singh Bhati Vs. N.C.T. Delhi
and Another in Appeal (Crl. No.324 of 2001) dated 23.03.2001 has
observed that,
“Even though there is no legal bar for a Magistrate to
consider an application for grant of bail to a person who is arrested for
an offence exclusively triable by Court of Sessions yet it would be
appropriate that in such a case Magistrate directs the accused person to
approach the Court of Sessions for the purpose of getting the relief of
bail”. It is imperative to mention here that, the offence punishable
under Section 123 of BNS is punishable with imprisonment upto ten
years. Therefore, as per the ratio laid down by the Hon’ble Apex Court,
this Court is empowered to release an accused, charged with an offence
punishable under Section 123 of BNS (Corresponding Section 328 of
IPC).
7. After perusing of remand papers, it appears that the
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investigating machinery has already seized the contraband articles and
drawn the samples therefrom. It is significant to note that the seized
goods or food articles are in possession of the Investigating Officer.
Furthermore, the Remand Report shows the accused is residing in
Mumbai. Hence, there is less possibility of absconding of the accused.
Mere, Section 123 of BNS is triable of Hon'ble Court of Sessions, it is
not the ground to reject the bail of the accused, especially when, the
issue of applicability of Section 123 of BNS for possession /
transportation of contraband articles i.e. Gutkha, Pan Masala and
Scented Tobacco, is pending before the Hon’ble Apex Court. The
custodial interrogation of the applicant/accused is already over. So far
as the fact that the investigation is in progress, necessary conditions can
be imposed while considering the prayer for bail. Hence, this Court is of
the view that there is no special reason to keep the accused behind the
bar. It is to be noted that possibility as to tampering evidence or
inducement or threat to the person acquainted to the fact of the case
can be avoided by imposing conditions upon the accused. Hence, it is
justifiable to release the accused on bail, subject to some stringent
conditions. Accordingly, this Court proceeds to pass following order.
ORDER
1. The Bail Application is allowed.
2. Accused Mohd. Afzal @ Kaliya Mohd. Azad Shaikh be released on
bail on executing P.B. and Surety bond of 25	₹ ,000/- (Rs. Twenty
Five Thousand Only) with one surety or on Cash Security of
25	₹ ,000/- (Rs. Twenty Five Thousand Only), subject to following
stringent conditions :
a. He shall not hamper or tamper the material evidence of the
prosecution;
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b. He shall not pressurize to the informant and prosecution witnesses;
c. He shall make himself available for the purpose of investigation as
and when required by the Investigation Officer;
d. He shall not abscond and furnish his address proof-copy of Ration
Card, mobile number and mobile number of his close relative with
name and address of the said relative;
e. He shall not indulge himself in similar type of offence.
(P. P. Deshmukh)
Judicial Magistrate F. C.,
Date: 12.02.2026 46th Court, Mazgaon, Mumbai.
RRRT.
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