Bombay High Court
ABDUL FAIZAN ABDUL RAFIQversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The court granted anticipatory bail to both applicants subject to stringent conditions, including an undertaking not to deal in Gutkha.
Summary
The applicants, Rahemat Khan Ahmad Khan and Abdul Faizan Abdul Rafiq, applied for anticipatory bail in connection with CR No. 389 of 2026 alleging offences under the Food Security and Standards Act, 2006 and the Bharatiya Nyaya Sanhita, 2023, including alleged dealing in contraband Gutkha. The prosecution argued the seriousness of the offences, while the defence contended that all charges except the one under Section 123 of BNS (equivalent to IPC 328) are bailable, and the Supreme Court’s decision on IPC 328 is pending. The court noted the applicants’ willingness to give a specific undertaking not to deal in Gutkha or pan‑masala with tobacco, and observed no prior criminal antecedents. Relying on the Supreme Court’s precedent in Abhijit Jitendra Lolage vs State of Maharashtra, the court granted anticipatory bail with a bond of Rs 1,00,000 each and a series of strict conditions, including monthly police reporting and compliance with the undertaking. The bail was conditioned on non‑violation of terms, with provision for cancellation if breached.
Issues considered
- Whether anticipatory bail can be granted for offences under the Food Security and Standards Act, 2006 and the Bharatiya Nyaya Sanhita, 2023 involving contraband Gutkha, especially pending the Supreme Court’s ruling on the applicability of IPC 328.
- Whether the imposition of an undertaking not to deal with Gutkha is a valid condition for granting anticipatory bail.
- Whether the seriousness of the alleged offences precludes the grant of anticipatory bail.
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 123, 223, 274, 275
- Food Security and Standards Act, 2006 — s. 26(2)(i), 26(2)(iv), 27(3)(d), 27(3)(e), 30(2)(a), 3(1)(zz)(iv)
- Indian Penal Code — s. 328
Subjects
- anticipatory bail
- pre‑arrest bail
- contraband
- Gutkha
- Food Security and Standards Act
- Bharatiya Nyaya Sanhita
- IPC 328
- undertaking
- bail conditions
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2369 OF 2026
Rahemat Khan Ahmad Khan …Applicant
Vs.
State of Maharashtra …Respondent
AND
ANTICIPATORY BAIL APPLICATION NO. 2372 OF 2026
Abdul Faizan Abdul Rafiq …Applicant
Vs.
State of Maharashtra …Respondent
Mr. Niranjan Pachupate i/b Parinam Law Associates, for the
Applicant.
Ms. Savita M. Yadav, APP for the Respondent-State in ABA-2369-
2026.
Mr. S.S. Ghag, APP for the Respondent-State in ABA-2375-2026.
CORAM: MADHAV J. JAMDAR, J.
DATE : 23rd SEPTEMBER, 2026
P. C.:
1. Heard Mr. Pachupate, learned Counsel appearing for the
Applicants and Ms. Yadav, learned APP appearing for the
Respondent-State in Anticipatory Bail Application No. 2369 of
2026 and Mr. Ghag, learned APP appearing for the Respondent-
State in Anticipatory Bail Application No. 2375 of 2026.
2. By the present Applications, the Applicants are seeking pre-
arrest bail in connection with C.R. No. 389 of 2026 registered on
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18th May 2026 under Sections 26(2)(i), 26(2)(iv), 27(3)(d), 27(3)
(e), 30(2)(a), 3(1)(zz)(iv) of Food Security and Standards Act,
2006 and Sections 123, 223, 274 and 275 of the Bharatiya Nyaya
Sanhita, 2023 (“BNS”) registered with Sinnar Police Station,
Nashik Rural.
3. As per the prosecution case the Applicants were found
dealing with contraband material Gutkha which is unsafe and
dangerous for the health of people.
4. It is the submission of Mr. Pachupate, learned Counsel that
except the offence under Sections 123 of the BNS, i.e., Section 328
of the Indian Penal Code, 1860, all other offences are bailable
offences. He submits that as far as Section 328 of IPC is
concerned, the Supreme Court is considering the applicability of
Section 328 of IPC to the similar cases. He therefore, states that
the Anticipatory Bail be granted to the Applicants.
5. On the other hand, Ms. Yadav and Mr. Ghag, learned APP
strongly oppose the Anticipatory Bail Application. They submit that
the offence is very serious and therefore, the Anticipatory Bail
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Applications be rejected. Both of them submit that the Anticipatory
Bail Applications be rejected.
6. Learned APPs submit that if this Court is inclined to grant
Anticipatory Bail then the Applicants 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 :-
“It is deemed appropriate to impose the condition –
“I, Abhijeet Jitendra Lolage do undertake to not
deal with Gutkha, that is, PanMasala 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)
7. Mr. Pachupate, learned counsel appearing for all the
Applicants, after taking instructions, submits that all the Applicants
will give the undertaking.
1 SLP(Cri.) Diary No. 2806/2023
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8. The Supreme Court in the said order has imposed the above
condition in case of similar offence.
9. Perusal of the record shows that except the offence under
Section 123 of BNS (i.e. Section 328 of IPC), the other offences are
bailable offences. The issue whether Section 328 of IPC will apply
to similar cases is pending before the Supreme Court. As all the
Applicants are ready to give the undertaking that they will not deal
with Gutkha and Tobacco products in any manner whatsoever, the
case is made out for grant of Anticipatory Bail.
10. There are no antecedent against the Applicant.
11. In view above, the following order is passed:
ORDER
(a) In the event of arrest of the Applicant-Rahemat Khan
Ahmad Khan (in Anticipatory Bail Application No. 2369 of
2026) and the Applicant-Abdul Faizan Abdul Rafiq (in in
Anticipatory Bail Application No. 2372 of 2026) in connection
with C.R. No.389 of 2026 registered with the Sinnar Police
Station, Nahik Rural, the Applicants are directed to be
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released on bail on their furnishing P.R. Bond in the sum of
Rs.1,00,000/- each with one or two solvent sureties in the like
amount.
(b) The Applicants shall attend the concerned Police
Station once in a month, i.e., first Monday of each month, till
conclusion of the case.
(c) All the Applicants to furnish undertakings to the effect
that they will not deal with banned products i.e. Gutkha, Pan
Masala with Tobacco products in any manner whatsoever.
Such undertakings to be filed in this Court within a period of
two weeks from today.
(d) The Applicants to strictly comply with the said
undertaking.
(e) The Applicants shall furnish their cell phone numbers
and residential addresses to the Investigating Officer and shall
keep the same updated, in case of any change thereto.
(f) The Applicants 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.
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(g) The Applicants shall not tamper with the prosecution
evidence and shall not contact or influence the Complainant
or any witness in any manner.
(h) The Applicants shall not leave India without prior
permission of the Court.
(i) In case, the Applicants violate 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 Applications are disposed of
accordingly.
[MADHAV J. JAMDAR, J.]
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