The Court of Sessions for Greater Bombay, presided over by Additional Sessions Judge A. A. Kulkarni, delivered a pivotal order on May 13, 2024, granting bail to five applicants—Vishnu Shankar Maspog, Sunil Kallu Chavan, Shahjad Fahiul Hussain, Sarfraz Zainuddin Shaikh, and Tabrez Esmail Surivala—in Criminal Bail Application No. 1205 of 2024. The applicants were arrested in a raid conducted by DCB CID UNIT-IV for the possession of Gutkha and charged under a severe combination of sections, including Section 328 (Causing hurt by means of poison, etc.) of the Indian Penal Code (IPC), along with other IPC sections (188, 272, 273) and multiple provisions of the Food Safety and Standards Act (FSSA), 2006. The Court’s decision was significantly influenced by a recent Supreme Court judgment, reinforcing the principle that the FSSA overrides related provisions of the IPC, which is critical for food safety law blogs and criminal defense analysis in cases of contraband food.
The Charges and the Contested Application of IPC Section 328
The case stemmed from a raid on May 1, 2024, following secret information that led to the seizure of Gutkha from the applicants. The police registered the offense under several sections, with Section 328 IPC being the most severe, as it makes the offense non-bailable and carries a penalty of up to ten years imprisonment. The applicants, most of whom were described as labourers or drivers, sought bail, arguing their innocence, minimal role, and the completion of the investigation since their arrest on May 2, 2024.
The prosecution opposed the bail, reiterating the standard concerns of fleeing from justice and tampering with evidence. However, the legal focus of the bail application centered on the applicability of Section 328 IPC to cases involving the seizure of Gutkha (a banned tobacco product) and other alleged food adulteration offenses. This specific legal point has been a subject of extensive litigation across various High Courts in India.
Supreme Court Precedent and Statutory Override
Judge A. A. Kulkarni meticulously considered the legal position, citing a series of Bombay High Court judgments that previously dealt with the applicability of Section 328 IPC in food adulteration and banned tobacco cases.
The most decisive factor, however, was the reliance on the recent ruling by the Hon’ble Supreme Court in Ram Nath V/s. The State of Uttar Pradesh and Ors., decided on February 21, 2024. The Court explicitly quoted the Supreme Court’s finding: “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.”
While the Supreme Court ruling primarily addresses Sections 272 and 273 IPC (Adulteration of food and sale of noxious food), the principle of statutory override strongly suggests that once an offense is squarely covered by the comprehensive, special legislation like the FSSA, the invocation of parallel general penal provisions like Section 328 IPC becomes highly questionable at the stage of bail. Since the issue of Section 328’s applicability is subjudice before the Supreme Court, and considering the FSSA’s overriding effect, the Court took a cautious approach, leaning toward the principle of liberty.
Completion of Investigation and Grant of Bail
Beyond the legal technicalities, the Court noted that the investigation was practically complete concerning the applicants. The contraband articles (Gutkha) were already seized and recovered on the date of the raid, meaning “Nothing remains to be recovered from them.” Given that the applicants were ordinary laborers/drivers with no necessary continuing role in the investigation, and had been in custody since May 2, 2024, the Court found that “further incarceration of the applicants is unwarranted.” The interests of justice could be served by imposing strict conditions to ensure their presence at the subsequent stages of investigation and trial.
Conditions for Release and Judicial Compliance
Bail Application No. 1205 of 2024 was allowed. The five applicants were ordered to be released on bail upon furnishing a Personal Bond (P.B.) and Surety Bond (S.B.) of ₹25,000/- each. Provisional cash bail in the like amount was allowed for four weeks to facilitate their prompt release.
To ensure compliance with the law enforcement agencies, the Court imposed the specific condition that the applicants “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.” Additionally, they were strictly directed not to tamper with the evidence or prosecution witnesses and not to leave India without prior court permission, effectively securing their attendance for the ongoing legal process.