1 19 ABA 799.26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (ABA) NO. 799/2026 (Shaikh Imran Shaikh Chand Vs. State of Maharashtra) with CRIMINAL APPLICATION (ABA) NO. 801/2026 (Shaikh Mushtak Shaikh Khalil Kureshi Vs. State of Maharashtra ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. A. Mohta, Advocate for applicants. Mr. A. Badar, APP for non-applicant/State CORAM: M. M. NERLIKAR, J . DATED : 16/09/2026. Heard. 2. By these applications, the applicants are seeking anticipatory bail in connection with Crime No. 191/2026 registered with Police Station Sakharkherda, Tq. Sindhked Raja, Dist. Buldhana for the offences punishable under Sections 223, 274, 275, 123, 3(5) of the Bharatiya Nyaya Sanhita, 2023 (“BNS”) and Sections 26(2)(i), 26(2)(iv), 27(3)(d), 23(3)(e), 3(1)(zz)(iv) of the Food Safety and Standards Act, 2006. 3. The brief facts of the prosecution case are that Shri Akshay Sanjay Bhople, Food Safety Officer, is the informant who lodged the First Information Report (“F.I.R.”) on 17/06/2026. It is alleged that, on 2 19 ABA 799.26.odt 17/06/2026, the informant received secret information that the applicant No. 1 had stored prohibited food articles in his room. Acting upon the said information, the informant, along with the panch witnesses, went to the house allegedly owned by the applicant No. 1 and conducted a search, during which approximately 24 prohibited food articles, valued at Rs.6,72,911/-, were allegedly found and seized from the house. It is further alleged that, thereafter, acting upon the said secret information, the informant conducted a search of the house of another accused, from where nearly 12 prohibited food articles were found and seized. Hence, the report. 4. The learned counsel for the applicants submits that the issue regarding the applicability of Section 123 of the BNS corresponding to Section 328 of the Indian Penal Code (“IPC”) to similar cases is presently pending consideration before the Hon'ble Supreme Court. He submits that, as per the allegations in the First Information Report, the police received secret information that the applicants had stored a large quantity of prohibited articles at their respective houses. Acting upon the said information, the police conducted searches of the 3 19 ABA 799.26.odt respective houses and allegedly found scented tobacco, Pan masala and other such articles. He further submits that, except for the offence punishable under Section 123 of the BNS, all the other offences alleged against the applicants are bailable. In these circumstances, the learned counsel submits that, considering the nature of the allegations and the fact that the applicability of Section 123 of the BNS is presently pending consideration before the Hon'ble Supreme Court, the applicants deserve to be granted anticipatory bail. He relies on the order of this Court in the case of Mohammad Hussain Gulaam Vs. State, [Criminal Application (ABA) No.347/2026, decided on 07/05/2026]. 5. On the other hand, the learned A.P.P. opposes the application and submits that a huge quantity of scented tobacco, chewing tobacco, Pan masala and other prohibited articles was found in the premises owned by the applicants. He further submits that the raid was conducted pursuant to secret information received by the police and that prohibited articles worth Rs.18,21,921/- were seized from both the premises belonging to the applicants. He submits that, though the issue regarding the applicability of Section 123 of the BNS is pending consideration before the Hon'ble Supreme Court, this Court in the case of Vasim 4 19 ABA 799.26.odt Jamil Shaikh v. State of Maharashtra and Anr., vide order dated 29/11/2018, has specifically held that the storage, transportation and possession of Ghutka, Pan masala, scented tobacco and other prohibited food articles would constitute an offence under Section 328 of the Indian Penal Code. He further submits that, subsequently, this Court, by two separate orders, has taken a contrary view and held that Section 328 of the Indian Penal Code, corresponding to Section 123 of the BNS, would not be applicable to such cases. The State of Maharashtra has challenged the said orders before the Hon'ble Supreme Court, which has granted stay to the impugned orders. Therefore, according to the learned A.P.P., the judgment in Vasim Jamil Sheikh (supra) continues to hold the field, and accordingly, the authorities were justified in invoking Section 123 of the BNS in the present case. He further submits that the Commissioner of Food Safety has prohibited the aforesaid articles for a period of one year by issuing a notification dated 16/07/2025. So far as the applicant Shaikh Imran Shaikh Chand is concerned, three similar crimes have already been registered against him. Therefore, he submits that the applicant no. 1 is a habitual offender and has allegedly been involved in similar offences on several 5 19 ABA 799.26.odt occasions. Considering the quantity of the prohibited articles, the nature and seriousness of the allegations, the alleged involvement of the applicant in similar offences, and the fact that the matter concerns public health, the learned A.P.P. submits that the applicants do not deserve to be granted anticipatory bail. 6. I have considered the rival submissions. By notification dated 16/07/2025, the Commissioner of Food Safety, in the interest of public health, issued a prohibitory order for a period of one year with effect from 20/07/2025, prohibiting the manufacture, storage, distribution, transportation (in and through the State of Maharashtra), or sale of tobacco and areca nut (betel nut), whether flavoured, scented or mixed with any of the said additives, and whether sold under the name or form of Ghutka, Pan masala, flavoured/scented tobacco, flavoured/scented Supari, manufactured chewing tobacco with additives, Kharra, or otherwise by whatsoever name called. The prohibition applies whether such products are packaged or unpackaged and/or sold as one product or, though packaged as separate products, sold or distributed in a manner so as to facilitate their mixing by the consumer for consumption, throughout the State of Maharashtra. 6 19 ABA 799.26.odt The aforesaid prohibitory order was issued by the Commissioner of Food Safety after taking into consideration various reports, studies and expert opinions demonstrating the harmful effects of such products on public health. Several such reports and studies have been referred to in the said notification, including research conducted by Tata Memorial Hospital, the Tata Institute of Fundamental Research, etc. The notification also refers to the study conducted by Dr. James E. Hammer and others, as well as reports of the Government Dental College, Nagpur, of the year 2012, indicating that consumption of Ghutka, Pan masala and similar products may cause oral submucous fibrosis. Similar findings have been referred to in the reports of the Government Dental College, Mumbai. The notification further refers to the Global Adult Tobacco Survey of India and various other reports and studies concerning the harmful effects of such products. Considering the aforesaid notification, it is evident that the manufacture, storage, distribution, transportation and sale of the aforesaid prohibited articles have been expressly prohibited throughout the State of Maharashtra for the period specified therein. Keeping in mind the object and purpose of the said notification, the allegations in the 7 19 ABA 799.26.odt present case are required to be considered. 7. Upon perusal of the First Information Report, it appears that the investigating agency received information regarding the storage of prohibited articles. Accordingly, raids were conducted at the premises of both the applicants, where a large quantity of prohibited articles, valued at Rs.18,21,921/, were found and seized. It is further to be noted that the storage of such articles is also prohibited under the aforesaid notification. 8. So far as the applicant Shaikh Imran Shaikh Chand is concerned, it is to be noted that three crimes of a similar nature have already been registered against him. While releasing the applicant on bail on an earlier occasion, the Court had specifically imposed a condition that he shall not commit a similar offence, vide order dated 27/10/2025 passed in Criminal Bail Application No. 873/2025 by the learned Additional Sessions Judge-2, Jalna. It is further to be noted that, in the same order, Clause 3 of the operative order specifically provided that violation of any of the conditions imposed would result in cancellation of bail forthwith. Even prior to the aforesaid order, the applicant appears to have been involved in another offence, in which 8 19 ABA 799.26.odt he was granted regular bail by the learned Additional Sessions Judge, Mehkar, District Buldhana, in Bail Application No. 184/2022, vide order dated 02/08/2022. Even in that bail order, a condition was imposed that the applicant shall not commit any offence in future and shall not misuse the liberty granted by the Court. It is further to be noted that, in one of the other crimes of a similar nature, the applicant was also granted anticipatory bail. Thus, the material on record indicates that, despite being granted the benefit of bail on earlier occasions subject to conditions restraining him from committing similar offences, the applicant has again been allegedly found with storage of prohibited articles. 9. Considering the aforesaid orders, it is evident that, despite the conditions imposed by the learned Additional Sessions Judge, Mehkar, as well as the learned Additional Sessions Judge-2, Jalna, restraining the applicant from committing a similar offence, the applicant Shaikh Imran Shaikh Chand has again been allegedly found involved in the storage and dealing of Ghutka, Pan masala and other prohibited food articles. So far as the applicant Shaikh Mushtak Shaikh Khalil is concerned, though he has no criminal antecedents, prohibited food however, articles 9 19 ABA 799.26.odt valued at Rs.11,49,010/- were allegedly found in the premises belonging to him. Thus, the quantity of the prohibited articles found in his premises is also a relevant circumstance while considering his application for anticipatory bail. 10. Now coming to the applicability of Section 123 of the BNS is concerned, two separate judgments are passed by this Court holding that Section 123 of the BNS would not be applicable. However, the State of Maharashtra challenged those judgments and orders before the Hon'ble Supreme Court, and the Hon'ble Supreme Court has granted stay to the said judgments and orders. In the present circumstances, the judgment of this Court in Vasim s/o Jamil Shaikh (supra) continues to remain applicable, wherein it was held that the acts of storage, transportation and possession of Ghutka, Pan masala and scented tobacco would constitute an offence under Section 123 of the BNS. It is also necessary to consider the order passed by this Court in Mohammad Hussain Gulaam (suupra), wherein in paragraph 6, this Court observed that the applicability of Section 123 of the BNS was pending consideration before the Hon'ble Supreme Court and, on that basis, anticipatory bail was granted to the applicant therein. However, it 10 19 ABA 799.26.odt appears that the attention of the Court was not drawn to the fact that the judgments and orders holding Section 123 of the BNS to be inapplicable had already been challenged by the State of Maharashtra before the Hon'ble Supreme Court and that the Supreme Court had granted stay to those judgments and orders. 11. Considering the observations made by this Court in Vasim s/o Jamil Shaikh (supra), as well as the large quantity of prohibited articles allegedly found in the premises of both the applicants, and, applicant no. 1’s previous involvement in similar offences and the conditions imposed in the earlier bail orders being flouted by him, I am not inclined to grant anticipatory bail to the applicants. Hence, both the applications are rejected. 12. Pending application(s), if any, stand disposed of accordingly. ( M. M. NERLIKAR , J.) Gohane Signed by: Mr. J. B. Gohane Designation: PS To Honourable Judge Date: 21/09/2026 10:43:47