Bombay High Court
RAKESH BRAJENDRA CHAUDHARIversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
Anticipatory bail is granted with conditions, despite the pending question on Section 123’s applicability.
Summary
The High Court considered an anticipatory bail application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by Rakesh Brajendra Chaudhari (also identified as Sumit Durgaprasad Gupta) in connection with charges under Sections 123, 223, 274 and 275 of the Bharatiya Nyaya Sanhita, 2023 for allegedly selling contraband gutkha. The applicant argued that, except for the non‑bailable Section 123, the other offences are bailable and he was ready to give an undertaking not to deal in gutkha, citing the Supreme Court’s direction in Abhijit Jitendra Lolage v. State of Maharashtra. The State opposed bail, emphasizing the seriousness of the offence and three prior similar antecedents. The Court noted that the applicability of Section 123 to similar cases is pending before the Supreme Court, but, given the applicant’s willingness to undertake, granted anticipatory bail with stringent conditions, including a personal bond, weekly police reporting, and a prohibition on dealing with banned products. The application was therefore disposed of in the applicant’s favour.
Issues considered
- Whether anticipatory bail can be granted under Section 482 BNS for an offence that includes a non‑bailable provision (Section 123) pending Supreme Court clarification.
- Whether the existence of three prior similar antecedents justifies imposing additional bail conditions.
- Whether an undertaking not to deal in gutkha and related products satisfies the Court’s requirement for granting anticipatory bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 482
- Bharatiya Nyaya Sanhita, 2023 — s. 123, 223, 274, 275
- Indian Penal Code, 1860 — s. 328
Subjects
- anticipatory bail
- Section 482
- non‑bailable offence
- contraband
- gutkha
- bail conditions
- Bharatiya Nyaya Sanhita
- Bharatiya Nagarik Suraksha Sanhita
Judgment
18 ABA-2338-2026.DOC
skt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2338 OF 2026
Rakesh Brajendra Chaudhari …Applicant
Vs.
State of Maharashtra …Respondent
Through Ghoti Police Station, Igatpuri, Nashik
Mr. Arpit N. Mutha, for the Applicant.
Mr. S.S. Ghag, APP for the Respondent-State.
CORAM: MADHAV J. JAMDAR, J.
DATE : 16th SEPTEMBER, 2026
P. C.:
1. Heard Mr. Mutha, learned Counsel appearing for the
Applicant and Mr. Ghag, learned APP appearing for the
Respondent-State.
2. This application is filed under Section 482 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 seeking pre-arrest bail in
connection with C.R. No.443 of 2024 registered with Ghoti Police
Station, Nashik Rural, for the offences punishable under Sections
123, 223, 274 and 275 of the Bharatiya Nyaya Sanhita, 2023
(“BNS”).
3. As per the prosecution case the Applicant was selling
contraband material which is unsafe and dangerous for the health
of people.
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4. It is the submission of Mr. Mutha, learned Counsel appearing
for the Applicant that except the offence under Section 123 of
BNS, all other offences are bailable offences. He submits that as far
as Section 123 of BNS is concerned, the Supreme Court is
considering the applicability of Section 123 (i.e. Section 328 of
IPC) to the similar cases. He, therefore, states that the Anticipatory
Bail be granted.
5. On the other hand, Mr. Ghag, learned APP strongly opposes
the Anticipatory Bail Application. He submits that the offence is
very serious and therefore, the Anticipatory Bail Application be
rejected. On instructions, learned APP, submits that there are three
antecedents of similar nature.
6. Learned APP submits that if this Court is inclined to grant
Anticipatory Bail then the Applicant be directed to give
undertaking in terms of order of the Supreme Court in the case of
Abhijit Jitendra Lolage vs State of Maharashtra 1 and more
particularly relies on following condition imposed by the Supreme
Court in case of similar offences :
1 SLP (Crl.) Diary No.2806/2023
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7. “It is deemed appropriate to impose the condition
– “I, Abhijeet Jitendra Lolage do undertake to not deal
with Gutkha, that is, Pan Masala with Tobacco”. In
case, the appellant – Abhijeet Jitendra Lolage violates
the terms and conditions of bail, including the
undertaking imposed, it would be open to the
prosecution to seek cancellation of bail ”.
(Emphasis added)
8. Mr. Mutha, learned Counsel appearing for the Applicant
after taking the instructions submits that the Applicant will give
the undertaking.
9. The Supreme Court in the said order has imposed the above
condition in case of similar offence.
10. Perusal of the record shows that except the offence under
Section 123 of BNS the other offences are bailable offences. The
issue whether Section 123 of BNS will apply to similar cases is
pending before the Supreme Court. As the Applicant is ready to
give the undertaking that he will not deal with Gutkha and
Tobacco products in any manner whatsoever, the case is made out
for grant of Anticipatory Bail. However, as there are three
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antecedents, it is necessary to impose stringent conditions on the
Applicant.
11. In view thereof, the following order is passed:
ORDER
(a) In the event of arrest of the Applicant-Sumit
Durgaprasad Gupta in connection with C.R. No.443 of
2026 registered with the Ghoti Police Station, Nashik
Rural, the Applicant is directed to be released on bail
on his furnishing P.R. Bond in the sum of
Rs.1,00,000/- with one or two solvent sureties in the
like amount.
(b) The Applicant shall attend the Ghoti Police Station,
Nashik Rural, once in a week i.e. on every Sunday
between 11:00 a.m. to 02:00 p.m. till conclusion of
the trial.
(c) The Applicant to furnish an undertaking that he will
not deal with banned products i.e. Gutkha, Pan
Masala with Tobacco products in any manner
whatsoever. Such undertaking is to be filed in this
Court within a period of two weeks from today. The
Applicant to strictly comply with the said undertaking.
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(d) The Applicant shall furnish his cell phone number and
residential address to the Investigating Officer and
shall keep the same updated, in case of any change
thereto.
(e) The Applicant shall not directly or indirectly make any
inducement, threat, or promise to any person
acquainted with the facts of the case so as to dissuade
such a person from disclosing the facts to the Court or
to any Police personnel.
(f) The Applicant shall not tamper with the prosecution
evidence and shall not contact or influence the
Complainant or any witness in any manner.
(g) The Applicant shall not leave India without prior
permission of the learned Trial Court/concerned
Sessions Court.
(h) In case, the Applicant violates the terms and
conditions of bail, including the undertaking, it would
be open to the prosecution to seek cancellation of bail.
12. The Anticipatory Bail Application is disposed of accordingly.
[MADHAV J. JAMDAR, J.]
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