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BA 1205/24
MHCC020073972024
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
CRIMINAL BAIL APPLICATION No.1205 OF 2024
1. Vishnu Shankar Maspog
Age 34 Years, Occ – Labour,
R/at Mahatma Phule Nagar, Jaibhavani Chawl,
Mankhurd Mumbai.
2. Sunil Kallu Chavan
Age : 24 years, Occ : Labour,
R/at Beside A.D. Decoration,
Opp. Sundershan Building,
Parel Village, Mumbai.
3. Shahjad Fahiul Hussain
Age 34 years, Occ : Labour,
R/at Sangam Lane, Kala Killa,
Madarsa Road, Pahadi Patti,
Dharavi, Mumbai
4. Sarfraz Zainuddin Shaikh
Age 41 years, Occ : Labour,
R/at 406, A wing, Vina Bina
Apt., Acharya Marg, Sewree.
5. Tabrez Esmail Surivala
Age 45 years, Occ : Labour,
R/at Alupalu Building, A wing,
1st floor, Room No.5,
L.J. Road, Mahim (W), Mumbai
….Applicants
– Versus The State of Maharashtra
(Through DCB CID UNIT-IV
vide Cr. No.43/2024 (corresponding
C.R.No.195/2024 Bhoiwada Police Station)
.… Respondent
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Appearance :Advocate Shaikh for the applicant.
APP Veena Shellar for the respondent / State.
CORAM :
DATED :
SHRI. A.A. KULKARNI
Additional Sessions Judge,
Court Room No. 22
Incharge of C.R.No.30
13/05/2024
ORDER
This is an application filed by the accused u/sec.439 of
Criminal Procedure Code for releasing them on bail in connection with
Crime No.43/2024 (corresponding C.R.No.195/2024 Bhoiwada Police
Station) registered at DCB CID, UNIT-IV, for the offence punishable
under Sections 328, 188, 272, 273 of the Indian Penal Code and under
Section 26(2)(i), 26(2)(ii), 27(3)(c), 3(1)(zz) and Section 59 of The
Food Safety and Standard Act, 2006.
2.

It is alleged by the applicants / accused that they are
innocent and falsely implicated in the present case. The accused are
arrested on 02.05.2024. They have undergone custodial interrogation.
The investigation is completed. There are no criminal antecedents
against the accused. Therefore, there is no point in keeping accused
behind bars till conclusion of trial. They are permanent resident of their
given address therefore they prayed for releasing them on bail.
3.

The prosecution opposed the application by filing reply
vide Exh.2. It is the contention of the prosecution that if the accused are
released on bail it will affect on the collection of evidence. If the
accused are released on bail there are chances of flee away from justice.

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BA 1205/24
If the accused are released on bail there are chances of threatening of
prosecution witnesses and tampering of prosecution evidence. Hence,
prosecution prayed for rejection of the application.
4.

Read the application, say filed by the prosecution. Heard
the ld. Advocate for the applicant, ld. APP for the respondent / State.
5.

I have gone through the FIR, statement of informant. It is
the case of the prosecution that on 01.05.2024 the police received
secret information and accordingly they carried out raid, in which they
seized Gutkha. According to the police these applicants / accused are
possessing said Gutkha. Accordingly report is lodged and offence is
registered u/Sec. 328, 188, 272, 273 of the Indian Penal Code and
under Section 26(2)(i), 26(2)(ii), 27(3)(c), 3(1)(zz) and Section 59 of
The Food Safety and Standard Act, 2006. The applicants were arrested
on 02.05.2024. In respect of applicability of Section 328, I rely upon
the following judgments :
1. Gaurav Jayantbhai Hapani V/s. The State of Maharashtra in
ABA NO.3406 of 2022
2. Shaukat Ali Khushiyal Ahmed Pathan V/s. The State of
Maharashtra in ABA No.1658 of 2021
3. Pramod K. Shah V/s. Commissioner of Custom (Export
Promotion S.I.I.B. (Export) and Anr. In Cr. Application
No.4230 of 2006
4. Nipul Nagde V/s. The State of Maharashtra in Petition for
Special Leave to Appeal (Cri.) No.6788/2021
5. Manjabhau Manchakrao Rokde V/s. The State of Maharashtra
in ABA No.844/2020
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6. Ramdas Nivrutti Chintalwar V/s. The State of Maharashtra in
ABA 886/2022
7. Sanjay Ramdas Ranware V/s. The State of Maharashtra in ABA
1366/2022.
6.

It is a matter of fact that the issue pertaining to
applicability of Section 328 of IPC is subjudice before the Hon’ble
Supreme Court. In the judgment of Gaurav Hapani’s case supra the
Hon’ble Bombay High Court by order dated 19.01.2023 by considering
the observations in the bail order dated 09.12.2022 and order dated
22.06.2022 in ABA No.1587/22, 1588/22 allowed the anticipatory bail
application in the case where the offence was punishable u/Sec.328,
272, 273 of IPC.
7.

Recently the Hon’ble Supreme Court in the judgment of
Ram Nath V/s. The State of Uttar Pradesh and Ors. decided on
21.02.2024 held as follows :
Foot Safety and Standards Act overrides all food related
laws, IPC section 272 and 273 including Prevention of
Food Adulteration Act – No question of simultaneous
prosecution under both the statutes.
8.

On the date of raid itself, whatever articles found in
possession of the accused have been seized and recovered by the police.
Nothing remains to be recovered from them. The applicant Nos.1 to 3
are driver labour by profession and applicant Nos.4 and 5 are labour
they have nothing to do with the alleged offence. Since 02.05.2024 the
accused are behind bars further, incarceration of the applicants is
unwarranted. As aforesaid contraband articles i.e. gutkha are already
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seized and recovered. The presence of the applicants can be secured by
putting reasonable conditions for their attendance for investigation and
trial. Hence, further incarceration is unwarranted. Hence, the applicants
are entitled for the bail. In the result, I pass the following order.
ORDER
1]
Bail Application No.1205 of 2024 is allowed.

2]
Applicant No.1 / Accused Vishnu Shankar Maspog, Applicant
No.2 / Accused Sunil Kallu Chavan, Applicant No.3 / Accused Shahjad
Fahiul Hussain, Applicant No.4 / Accused Sarfraz Zainuddin Shaikh,
Applicant No.5 / Accused Tabrez Esmail Surivala
arrested in Crime
Number 43/2024 registered at DCB CID UNIT-IV (Corresponding FIR
No.195/2024 registered with Bhoiwada Police Station) for the offences
under Sections 328, 188, 272, 273 of the Indian Penal Code and under
Section 26(2)(i), 26(2)(ii), 27(3)(c), 3(1)(zz) and Section 59 of The
Food Safety and Standard Act, 2006 be released on bail on furnishing
P.B. and S.B. of Rs.25,000/- each with one or more sureties
3]
The applicants / accused shall not tamper with the prosecution
witnesses and evidence in any manner.
4]
The applicants / accused shall attend the concern police station
on 1st and 4th Saturday between 11.00 a.m. to 2.00 p.m. till filing of the
charge sheet.
5]
Provisional cash bail in the like amount is allowed. The accused
shall furnish surety within 4 weeks from the date of release from jail
failing which the cash bail shall stand forfeited without any separate
order to that effect.

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6]
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The applicants / accused shall not leave India without prior
permission of the Court.
7]
Bail before the concern Magistrate.

Date : 13.05.2024
Directly dictated on computer on : 13.05.2024
HHJ signed on
: 13.05.2024
( A.A. KULKARNI )
Additional Sessions Judge,
Gr. Mumbai.

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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
ORDER.”
14/05/2024
12.59 p.m.

UPLOAD DATE
TIME
J.S. Chavan
NAME OF STENOGRAPHER
Name of the Judge (With Court H. H. Additional Sessions Judge
Room No.)
Shri. A.A. KULKARNI,
Court Room No.22 (Incharge of C.R.No.30)
Date of Pronouncement of ORDER 13/05/2024
ORDER signed by P.O. on
13/05/2024
ORDER uploaded on
14/05/2024