Bombay High Court
BABAR SALAHUDDIN KHAN AND ANRversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The court granted anticipatory bail to the applicants, subject to strict conditions and undertakings.
Summary
The applicants, Babar Salahuddin Khan and Rustam Salahuddin Khan, applied for anticipatory bail in a case alleging they dealt with contraband Gutkha, invoking sections of the Bharatiya Nyaya Sanhita, 2023 and the Food Safety Act, 2006. The prosecution argued the offence was serious, especially under Section 123 of the BNS (equivalent to IPC Section 328), and highlighted five prior similar antecedents. The defence contended that, except for the Section 123/IPC 328 charge, the remaining offences are bailable and that the Supreme Court is yet to decide on the applicability of Section 328 to such cases. The court noted the applicants' willingness to give a strict undertaking not to deal in Gutkha and, despite the antecedents, found the case made out for anticipatory bail with stringent conditions. Consequently, the court granted anticipatory bail, imposing a personal bond, regular police reporting, undertakings, and other restrictions.
Issues considered
- Whether anticipatory bail should be granted despite the seriousness of the offence under Section 123 of the BNS (IPC Section 328).
- Whether the pending Supreme Court decision on the applicability of Section 328 IPC affects the grant of anticipatory bail.
- Whether the applicants' prior antecedents preclude the grant of anticipatory bail.
Legislation cited
- Bharatiya Nyaya Sanhita, 2023 — s. 123, 223, 274, 275, 3(5)
- Food Safety Act, 2006 — s. 26(2)(i), 26(2)(iv), 27(3)(e), 30(2)(a), 3(1)(zz)(iv)
- Indian Penal Code — s. 328
Subjects
- anticipatory bail
- contraband
- Gutkha
- Food Safety Act
- bailable offence
- Section 328 IPC
- Supreme Court pending decision
- undertaking
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2644 OF 2026
1. Babar Salahuddin Khan …Applicants
2. Rustam Salahuddin Khan
Vs.
State of Maharashtra …Respondent
Mr. Amey Prakash Sheth, for the Applicants.
Mrs. M.R. Tidke, APP for the Respondent-State.
PSI Hasina Hamid Shaikh, Chikhali Police Station, Pimpri-
Chinchwad.
CORAM: MADHAV J. JAMDAR, J.
DATE : 23rd SEPTEMBER, 2026
P. C.:
1. Heard Mr. Amey P. Sheth, learned counsel appearing for the
Applicants and Mrs. M.R. Tidke, learned APP appearing for the
Respondent-State.
2. By the present Application, the Applicants are seeking pre-
arrest bail in connection with C.R. No. 431 of 2026 registered on
24th June 2026 under Sections 123, 223, 274, 275 and 3(5) of the
Bharatiya Nyaya Sanhita, 2023 (“BNS”) and Sections 26(2)(i),
26(2)(iv), 27(3)(e), 3(1)(zz)(iv) and 30(2)(a) of the Food Safety
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Act, 2006 registered with Chikhli Police Station, Pimpri
Chinchwad.
3. As per the prosecution case the Applicants were found
dealing with contraband material i.e Gutkha which is unsafe and
dangerous for the health of people.
4. It is the submission of Mr. Sheth, learned counsel that except
the offence under Section 123 of BNS (Section 328 of Indian
Penal Code), 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.
5. On the other hand, Mrs. Tidke, learned APP strongly opposes
the Anticipatory Bail Application. She submits that the offence is
very serious, and therefore, the Anticipatory Bail Applications be
rejected. She submits that the Applicant has five antecedents of
similar nature. She, therefore, submits that the Anticipatory Bail
Application be rejected.
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6. Learned APP submits 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, 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)
7. Mr. Sheth, learned counsel appearing for the Applicants,
after taking instructions, submits that the Applicants will give the
undertaking.
8. The Supreme Court in the said order has imposed the above
conditions in case of similar offence.
1 SLP (Cri.) Diary No. 2806/2023
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9. Perusal of the record shows that except the offence under
Section 123 of BNS (i.e earlier 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 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. Although there are five antecedents against the Applicants,
he has been released on regular bail in two cases and anticipatory
bail in three cases. However, as there are five antecedents
stringent conditions are required to be imposed.
11. Accordingly, a case is made out for grant of Anticipatory Bail.
In view thereof, the following order is passed:-
ORDER
(a) In the event of arrest of the Applicant No.1-. Babar
Salahuddin Khan and Applicant No.2-Rustam Salahuddin
Khan in connection with C.R. No. 431 of 2026 registered
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with Chikhli Police Station, Pimpri Chinchwad, the
Applicants are directed to be 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 week, i.e., on each Monday between 11:00
A.M. to 2:00 P.M. for a period of 1 year i.e upto 30 th
September 2027 and thereafter once in a month i.e on first
Monday of each month between 11:00 AM to 2:00 PM till
the conclusion of the trial.
(c) 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 are to be filed in this Court
within a period of two weeks from today. The Applicants to
strictly comply with the said undertakings.
(d) The Applicants shall furnish their cell phone
numbers and residential addresses to the Investigating
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Officer and shall keep the same updated, in case of any
change thereto.
(e) 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.
(f) The Applicants shall not tamper with the
prosecution evidence and shall not contact or influence the
Complainant or any witness in any manner.
(g) The Applicants shall not leave India without prior
permission of the Court.
(h) 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 Application is disposed of accordingly.
[MADHAV J. JAMDAR, J.]
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