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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

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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