916-ABA-2426-2026.odt Harish IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO. 2426 OF 2026 Javed Ahmad @ Jahir Ahmad Ansari ...Applicant V/s. State Of Maharashtra ...Respondent _____________________________________________________________ Mr. Tushar Sonawane a/w Ms. Pooja Satpute, for the Applicant. Mr. Bapu Holambe Patil, APP for the Respondent – State. ________________________________________________________ CORAM : PRAFULLA S. KHUBALKAR , J. DATE : 28 th AUGUST, 2026. P.C. :- 1. Heard learned Advocate Mr. Tushar Sonawane for the applicant as well as Advocate Mr. Bapu Holambe Patil learned APP, for the respondent. 2. The applicant is apprehending arrest in Crime No. 278 of 2026 dated 21.04.2026, registered with Pelhar, Police Station, Mira- Bhayander, Vasai-Virar for the offence punishable under Sections 26(2)(i), 26(3) and 26(4) of Food Safety and Standards Act, (“FSSA”) 2006 and Section 123 of Bharatiya Nyaya Sanhita (BNS), 2023. 3. The First Information Report is registered on the basis of a 1/7 916-ABA-2426-2026.odt report lodged by the complainant alleging that on 21.04.2026, the complainant had been to a place in Nalasopara East and found that the prohibited Gutkha was being sold by the applicant in his shop. It is alleged in the report that the complainant also followed the accused and it was found that the prohibited material was stored in a room. Thereafter, the complainant called the police and on inspection, about 188 pouches of Vimal Company Gutkha were found in the said room. The said material was seized by the Police Officials. Thereafter, in this background, the offence came to be registered against this applicant. 4. Learned counsel for the applicant submitted that there is no material to establish commission of any of the offences by this applicant and in view of the position of law with respect to the applicability of the offence under Section 123 of BNS, the personal liberty of this applicant be protected. 5. It has to be noted that except Section 123 of BNS, the other offences registered under the FSSA and the offences under BNS are all bailable offence. 6. As regards Section 123 of the BNS, which is similar to the offence under Section 328 of IPC, it is submitted that the issue about applicability of the said section in cases pertaining to illegal transport 2/7 916-ABA-2426-2026.odt and possession of Gutkha is pending before the Hon’ble Supreme Court in a number of cases. It is pointed out that in such cases pending before the Hon’ble Supreme Court, protection from arrest is granted to the accused persons therein. 7. In the instant case learned APP submits that since this applicant is found to be one of the supplier, his role in the entire chain of suppliers need to be investigated and hence the custodial interrogation of this applicant is necessary. As regards the contention that the legal position about applicability of Section 123 of BNS is pending before Hon’ble Supreme Court, there is no dispute. 8. As regards criminal antecedents, learned counsel for the applicant submits that there are two criminal cases registered against this applicant in which he is already enlarged on bail. In this background, he submits that this applicant is ready to submit an undertaking to state that he will not deal with the prohibited material including Gutkha, Pan Masala and Tobacco and learned counsel for the applicant tenders across the bar an undertaking signed by the applicant. The affidavit dated 18.08.2026 is taken on record and marked as document “X” for identification purposes. 9. Perused FIR and the material placed on record and the judgments relied upon by the counsel for applicant particularly the 3/7 916-ABA-2426-2026.odt judgment of coordinate Bench of this Court in Anticipatory Bail Application No. 1440 of 2024 dated 19th June 2024 and judgments dated 30th September 2021 in a bunch of matters in Anticipatory Bail Application No. 944 of 2020 with connected matters. 10. In the light of the observations made herein above and on consideration of the crucial aspects particularly, considering the fact that the very applicability of Section 123 of BNS to such an offence on the allegations of the applicant being a supplier is in question, at this stage, the applicant deserves to be protected so as to applicability of Section 123 is concerned. As regards the other offence under BNS, the same are bailable. The offences under Sections of FSS Act have to be considered in the light of law laid down by the Hon’ble Supreme Court in the matter of Ram Nath Vs. The State of Uttar Pradesh & Ors., reported in 2024 SCC online SC 177 wherein the Hon’ble Supreme Court has clarified the position that the provisions under FSSA override sections 272 and 273 of the IPC. In any case, the punishment under FSSA in the face of an allegations made against this applicant would be only by way of imprisonment up to one year and imposition of fine. 11. In support of his submissions, learned counsel for the applicant placed reliance on several orders passed by the coordinate Bench of this Court including order in Anticipatory Bail Application No. 1795 of 2026 dated 16th July, 2026 in Ajiruddin Fakaruddin Kazi 4/7 916-ABA-2426-2026.odt Versus The State of Maharashtra and submitted that in view of the contentious issues about applicability of provisions of Section 123 of BNS Act, the personal liberty of this applicant needs to be protected. In this regard although learned APP submitted that there are several orders passed by this Court denying anticipatory bail to several accused persons, it is not disputed that the issue about applicability of Section 123 of BNS is still pending before the Hon’ble Supreme Court. 12. Learned counsel for the applicant also states that this applicant is ready to abide by any conditions for grant of anticipatory bail. 13. In view of the above, the Anticipatory Bail Application is allowed, subject to following conditions. 14. Hence, I pass following order : : ORDER : (i) In the event of arrest of the applicant in Crime No. 278 of 2026 dated 21.04.2026, registered with Pelhar, Police Station, Mira- Bhayander, Vasai-Virar for the offence punishable under Sections 26(2)(i), 26(3) and 26(4) of Food Safety and Standards Act, (“FSSA”) 2006 and Section 123 of Bharatiya 5/7 916-ABA-2426-2026.odt Nyaya Sanhita (BNS), 2023, he be released on bail on furnishing P. R. Bond of Rs. 25,000/- (Rupees Twenty Five Thousand only) with one solvent surety of the like amount. (ii) The applicant is directed to attend the Investigating Officer on every Monday between 10:00 a.m. to 5:00 p.m., for a period of one month and thereafter as and when called upon by the Investigating Officer. (iii) The applicant shall cooperate with the Investigating agency during investigation and trial. (iv) The applicant shall not tamper with the prosecution evidence or influence the Informant and witnesses directly or indirectly. (v) The applicant shall not indulge in any such activity for which the offences has been registered against him in the instant case. (vi) The applicant shall not engage in any transactions dealing with the prohibited articles including Gutkha, Pan Masala with Tobacco and similar such items during pendency of the criminal proceedings. 6/7 916-ABA-2426-2026.odt (vii) In the event, the applicant violates any of these conditions specified in this order, his bail is liable to be cancelled. 15. Needless to mention the observations made in this order are limited to the disposal of the anticipatory bail application and the Trial Court is entitled to record its independent observations on the basis of evidence before it. 16. In view of this, the instant application is allowed and disposed of. (PRAFULLA S. KHUBALKAR, J.) 7/7