Final Order 1

Order Details: Copy of Order - 1
Pdf Text: - 1 of 6 - (ORDER ON B.A. NO.415/2026 and
416/2026)
Common Bail Order in 415/BA/2026 and 416/BA/2026 in CR.
No.256/2026 of PS. Tilaknagar, Mumbai.
The State (Through – PS. Tilaknagar) Vs No.1 Bhimkumar Shaha, No.2
Kundankumar Chanchal Sahu and No.3 Amit Yayendra Pandey.
(A) CASE DETAILS:
FIR NUMBER & DATE 256/2026, DATED 14.05.2026.
POLICE STATION, DISTRICT
AND STATE
PS.Tilaknagar.
Dist. - Mumbai, State – Maharashtra.
SECTION INVOKED S.123, 223, 274 and 275 of the BNS & for the
offence punishable under Section 59 of the Food
Safety & Standards Act, 2006.
MAXIMUM PUNISHMENT
PRESCRIBED
Upto 10 years of Imprisonment and fine.
(B) CUSTODY & PROCEDURAL COMPLIANCE :
DATE OF ARREST 14.05.2026
TOTAL PERIOD OF CUSTODY
UNDERGONE
06 Days.
(C) STATUS OF TRIAL:
Stage of proceedings
(Investigation/Charge-sheet/Cognizance/Framing of
Charges/Trial)
Investigation.
Total number of witnesses cited in the charge-sheet --
Number of prosecution witnesses examined --
(D) CRIMINAL ANTECEDENTS:
FIR No. & Police Station --
Sections --
Status (pending/Acquitted Convicted --
(E) PREVIOUS BAIL APPLICATIONS:
Court --
Case No. --
Outcome of case --
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416/2026)
(F) COERCIVE PROCESSES:
Whether any Non-Bailable Warrant was issued --
Whether declared a proclaimed offender --
COMMON ORDER PASSED ON BAIL APPLICATIONS
1. Application No.415/2026 is filed by accused No.1
Bhimkumar Shaha and No.3 Amit Yayendra Pandey and Application
No.416/2026 is filed by accused No.2 Kundankumar Chanchal Sahu for
grant of bail under Section 480 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 in Crime No.256/2026 under Section 123, 223, 274 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 applications, 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 30,593	₹ /- of
contraband articles found from the possession of the accused persons.
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 applications. Lastly, she has submitted that, the
investigation is in progress and if the bail is granted, accused may
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416/2026)
commit similar offence in future. Hence, she prayed for rejection of the
applications. The I.O. has resisted the application and reinterated the
grounds mentioned by learned APP.
3. On the contrary, the respective learned defence counsels
have 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. They further submitted that Section 223, 274 and
275 are also not prima-facie made out against the accused, therefore,
this Court has every jurisdiction to grant bail of accused. They have
further submitted that the accused are law abiding persons. It is
submitted by learned counsels for the accused that they are residents of
Mumbai. The accused are falsely implicated in this case. The accused
are 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
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
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416/2026)
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
investigating machinery has already seized contraband articles from the
possession of the accused. It is significant to note that the seized
contraband articles are in possession of the Investigating Officer.
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416/2026)
Furthermore, the remand application shows the detail address of the
accused persos are available with the investigating machinery. 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
applicants/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 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 Applications are allowed.
2. Accused No.1 Bhimkumar Shaha, No.2 Kundankumar Chanchal
Sahu and No.3 Amit Yayendra Pandey be released on bail on
executing P.B. and Surety bond of 1	₹ 0,000/- (Rs. Ten Thousand
Only) each with one surety or on Cash Security of 10	₹ ,000/- (Rs.
Ten Thousand Only) each, subject to following stringent
conditions :
a. They shall not hamper or tamper the material evidence of the
prosecution;
b. They shall not pressurize to the informant and prosecution
witnesses;
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c. They shall make themselves available for the purpose of
investigation as and when required by the Investigation Officer;
d. They shall not abscond and furnish their address proof-copy of
Ration Card, mobile number and mobile number of his close
relative with name and address of the said relative;
e. They shall not indulge themselves in similar type of offence.
(P. P. Deshmukh)
Judicial Magistrate F. C.,
Date: 19.05.2026 46th Court, Mazgaon, Mumbai.
RRRT.
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