Final Order 1

Order Details: Copy of Order - 1
Pdf Text: - 1 of 5 - (ORDER ON B.A. NO.287/2026)
B.A. NO.287/2026
Crime No.232/2026
P.S. Shivajinagar -Vs- Afzal Nafis Khan
U/sec. 123, 223 and 275 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 accused Afzal Nafis Khan for
grant of bail under Section 480 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 in Crime No.232/2026 under Section 123, 223 and 275
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.
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.
Prima facie case is made out as total quantity of 2,04,192	₹ /- of
contraband articles is found from the possession of the accused. 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 progress and if the bail is granted, accused may commit similar
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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 may 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 and 275 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 resident of 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).
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5. In aforesaid judgments, the Hon'ble Bombay High Court
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).
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7. After perusing of remand papers, it appears that the
investigating machinery has already seized contraband articles from the
possession of accused. It is significant to note that the seized
contraband articles are in possession of the Investigating Officer.
Furthermore, the remand application shows the detail address of the
accused is available with the investigating machinery which is of
Govandi, 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. 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
bars. 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 Afzal Nafis Khan be released on bail on executing P.B. and
Surety bond of ₹15,000/- (Rs. Fifteen Thousand Only) with one
surety or on Cash Security of 15	₹ ,000/- (Rs. Fifteen 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: 07.04.2026 46th Court, Mazgaon, Mumbai.
RRRT.
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