Bombay High Court
GANESH MARUTIRAO DHUMAL AND ANOTHERversusTHE STATE OF MAHARASHTRA
- Disposal
- APPLICATION ALLOWED
Holding
The Court allowed bail to the applicants, holding that despite prima facie evidence of knowledge, the statutory requirements of Section 123 were not sufficiently proved to justify continued custody.
Summary
The applicants, two labourers, were arrested for allegedly transporting a large consignment of prohibited gutkha and related tobacco products in a black Scorpio. The FIR alleged that they knowingly carried the goods, which were seized along with the vehicle, and that the other occupant fled the scene. The applicants sought regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, contending that their role was limited to transportation and that Section 123 of the Bharatiya Nyaya Sanhita, which is non‑bailable, should not apply to them. The State argued that the quantity, evasion of police, and flight indicated conscious participation, bringing the applicants within the ambit of Section 123. The Court examined the statutory ingredients of Section 123, emphasizing the need for proof of act, causation, and mens rea at the bail stage, and held that while prima facie material suggested knowledge, continued detention was not justified. Accordingly, the bail application was allowed with strict conditions, noting that the applicants had no prior criminal record and that the entire consignment had already been seized.
Issues considered
- The applicability of Section 123 of the Bharatiya Nyaya Sanhita to a transporter of prohibited gutkha.
- Whether the prosecution has established the act, causation, and mens rea elements required under Section 123 at the bail stage.
- Whether continued pre‑trial detention of the applicants is necessary for the investigation.
- Whether the non‑bailable nature of Section 123 creates a statutory bar to bail.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 483
- Bharatiya Nyaya Sanhita, 2023 — s. 123, 223, 274, 275, 3(5)
- Indian Penal Code, 1860 — s. 328
Subjects
- bail
- Section 123 BNS
- transportation liability
- prohibited gutkha
- prima facie evidence
- public health
- Indian Penal Code 328
- Bharatiya Nyaya Sanhita
- Bharatiya Nagarik Suraksha Sanhita
Judgment
2026:BHC-AUG:43140
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 1580 OF 2026
1. Ganesh Marutirao Dhumal,
Age : 34 yrs., Occu. Labourer,
R/o. Upalai Road, Barshi,
Tq. Barshi, Dist. Solapur.
2. Rohan Ravindra Kadam,
Age : 29 yrs., Occu. Labourer,
R/o. Alani, Taluka & Dist. Dharashiv. ...Applicants
Versus
The State of Maharashtra,
Through Police Station Incharge,
Dharashiv City Police Station,
Taluka & Dist. Dharashiv. ...Respondents
……..
Mr. Abhijit S. More – Advocate for the Applicants
Mr. S. D. Ghayal – Addl. P. P. For Respondent/State
……..
CORAM : HITEN S. VENEGAVKAR, J.
RESERVED ON : 10th SEPTEMBER, 2026
PRONOUNCED ON : 23rd SEPTEMBER, 2026
ORDER : -
1. By this Application under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, the Applicants seek regular bail in
Crime No.319 of 2026 registered with Dharashiv City Police Station,
Dharashiv, for offences punishable under Sections 123, 223, 274 and
275, read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023
[hereinafter referred to as ‘BNS’]. Applicant No.1 was apprehended on
13th July, 2026 and Applicant No.2 was arrested in connection with the
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same crime. They are stated to be in custody since 13 th July 2026. Their
Criminal Bail Application No.316 of 2026 was rejected by the learned
Additional Sessions Judge, Dharashiv, on 21st July, 2026.
2. The prosecution case, in brief, is that Police Inspector
Kumar Darade received secret information on 12th July, 2026 that
prohibited gutkha was being transported from the Tuljapur side in a
black Scorpio on National Highway No.52. At about 11.45 p.m., the
police noticed Scorpio bearing registration No.MH-25-BF-3696 near
Palaswadi Phata, Wadgaon Shivar. The driver did not stop on being
signalled and the vehicle was intercepted after a chase near Terna
Engineering College. Applicant No.1 was driving the vehicle. According
to the FIR, the other occupant, alleged to be applicant No.2, left the
vehicle and fled in the darkness.
3. A search of the vehicle allegedly resulted in seizure of 40
white bags containing 1,800 packets of Director Special Pan Masala
valued at Rs.9,07,200/-, 40 white bags containing 1,800 packets of Shot
Luxury Chewing Tobacco valued at Rs.1,29,600/-, and the Scorpio
vehicle valued at Rs.15,00,000/-. The aggregate value shown in the FIR
is Rs.25,36,800/-. The prosecution alleges that the consignment had
been obtained from accused Jafar Jamadar of Aland, Karnataka, at the
instance of accused Pavan Jivan Pole and was to be delivered to accused
Amol Gunjal near Pargaon toll naka in Dharashiv District.
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4. Learned counsel for the applicants submits that their
attributed role is confined to transportation. The entire consignment,
along with the vehicle, has been seized, and no further recovery remains
to be made from either of the applicants. The police no longer require
their custodial interrogation. It is further submitted that neither of the
applicants has any criminal antecedent. He submits that, apart from
Section 123 of the BNS, all the other offences invoked against the
applicants are bailable and triable by a Magistrate. Relying on Anand
Ramdhani Chaurasia and another v. State of Maharashtra and others,
2019 SCC OnLine Bom 1857, Ganesh Pandurang Jadhao v. State of
Maharashtra, (2016) Cri LJ 2401, and orders granting protection in
similar matters, he contends that mere storage or transport, without
administration of the substance to any identified person, does not attract
the ingredients of Section 123 of the BNS. It is further submitted that
accused No.4, the alleged intended recipient, has already been released
on bail and the present Applicants, who are labourers, deserve the same
relief on parity and on their own role.
5. Learned APP opposes the application. He submits that the
quantity, the attempted evasion of the police and the alleged flight of
applicant No.2 demonstrate conscious and organised transport. The
consignment was allegedly sourced from Karnataka for supply within
Maharashtra despite the subsisting prohibition. The supplier and
another participant are yet to be arrested, and the investigation into the
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source and distribution network is incomplete. According to the State,
the words ‘causes to be taken’ in Section 123 cover every knowing
participant in the commercial chain, including a manufacturer,
transporter and seller, because each actively moves the harmful product
towards eventual consumption. Reliance is placed on Vasim s/o Jamil
Shaikh v. State of Maharashtra, Criminal Application No.4353 of 2016
decided on 29th November 2018, and the subsequent decisions which
have followed that view.
6. The controversy requires care because the corresponding
provision, Section 328 of the Indian Penal Code, has received divergent
consideration in this Court and the principal appeals are pending before
the Supreme Court. This application is for bail. It is neither necessary
nor proper to pronounce finally upon the guilt of the applicants, to
quash Section 123 from the Crime, or to decide an issue awaiting
authoritative determination by the Supreme Court. The question before
this Court is narrower: what prima facie scrutiny should a bail court
undertake when Section 123 is invoked against a person alleged to be a
manufacturer, supplier, transporter, warehouse keeper or seller of a
prohibited product, and whether continued custody is justified on the
material of the particular case.
7. Section 123 BNS substantially carries forward Section 328
IPC. It punishes a person who administers to, or causes to be taken by,
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any person any poison or any stupefying, intoxicating or unwholesome
drug or other thing with intent to cause hurt, with intent to commit or
facilitate an offence, or knowing it to be likely that hurt will thereby be
caused. The provision therefore contains an act element, a description of
the substance, a causal link with its being taken by a person, and the
prescribed intent or knowledge. The expression ‘causes to be taken’ is
wider than physical administration by the accused himself, but it cannot
be read in isolation from causation and the mental element expressly
enacted by Parliament.
8. In Joseph Kurian alias Jose v. State of Kerala, (1994) 6 SCC
535, the Supreme Court held that the prosecution must establish that
the substance answers the statutory description, that the accused
administered it or caused the victim to take it, and that the act was
accompanied by the required intent or knowledge. The Court explained
that the act may be accomplished directly or through another, but the
responsibility of the accused and the necessary mens rea must be proved
by reliable and cogent evidence. That exposition of the ingredients binds
this Court. Its application to a prohibited commercial product seized
before consumption, and to the several actors in a supply chain, is the
question on which this Court has expressed different views.
9. In State of Maharashtra v. Sayyed Hassan Sayyed Subhan
and others, AIR 2018 SC 5348, the Supreme Court rejected the
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proposition that the Food Safety and Standards Act, 2006 excludes
prosecution under the Penal Code. The same facts may constitute
offences under both enactments if the ingredients of each are satisfied,
subject to the rule against double punishment. The Supreme Court,
however, remitted for fresh consideration, the distinct issue whether
Sections 188, 272, 273 and 328 IPC were in fact made out. Sayyed
Hassan therefore answers the question of coexistence of the enactments;
it does not dispense with proof of the ingredients of Section 328.
10. In Anand Ramdhani Chaurasia (supra), a Division Bench
held that mere storage, without an act bridging storage and
consumption, did not amount to administering or causing a person to
take the product. The Division Bench regarded the earlier view in Vasim
Shaikh as rendered without considering Joseph Kurian. Operation of the
judgment in Anand Ramdhani Chaurasia was stayed by the Supreme
Court on 31st August 2020 in SLP (Crl.) No.4101 of 2020 arising from
Diary No.8224 of 2020. The later decision in Ganesh Pandurang Jadhao
on remand was also stayed on 7th January 2021 and tagged with that
matter. A stay of operation is not an affirmance of the contrary
proposition and does not itself declare law under Article 141; equally, a
bail court cannot proceed as if the stayed operative relief conclusively
governs the case before it.
11. In later bail decisions of this Court, including Nagesh
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Rajshekhar Mense v. State of Maharashtra, decided on 3rd January 2023
in Anticipatory Bail Application No. 799 of 2022 and connected matters,
the Court has treated the manufacture, movement, storage and sale of
prohibited products as potentially forming a chain of indirect causation
and has declined anticipatory protection where investigation was at an
initial stage. On the other hand, the Supreme Court has granted interim
protection in several matters involving the same controversy. In Altaf
Gulab Shaikh v. State of Maharashtra, SLP (Crl.) No.8379 of 2023, by
order dated 21st July 2023, the Supreme Court recorded that SLP (Crl.)
No.4101 of 2020 was pending, tagged the matter with it, and directed
that no coercive step be taken subject to cooperation with the
investigation. Such interim orders do not finally decide statutory
interpretation. They show why neither arrest nor refusal of bail can
follow mechanically from the addition of Section 328 IPC or Section 123
BNS.
12. The following approach preserves both effective
investigation and personal liberty until the issue is finally settled. At the
bail stage, the Court need not decide as an abstract proposition that
every participant in a prohibited supply chain is covered by Section 123
or that every participant is outside it. The Court must examine whether
the FIR and the material then collected disclose reasonable grounds,
specific to the accused, for the act element, the causal nexus and the
prescribed intent or knowledge. The commercial label attached to an
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accused - manufacturer, transporter, stockist or seller - is relevant to
role, but is neither a substitute for proof nor a statutory presumption.
13. In the case of a manufacturer, financier, organiser,
wholesaler or seller, material showing ownership of the goods, repeated
dealings, orders, invoices, accounts, communications, concealment,
payment, control over destination or an established distribution
arrangement may furnish a stronger prima facie inference of conscious
and purposeful participation. A retail sale or an offer for sale may place
the accused closer to eventual consumption, but the Court must still
examine the statutory ingredients rather than infer them merely from
the product’s prohibited character.
14. In the case of a transporter, driver, cleaner or hired
labourer, physical carriage may establish custody of the goods but does
not by itself answer whether the person knew the nature of the
consignment and purposefully participated in its prohibited movement.
Knowledge and participation may legitimately be inferred from the
manner of concealment, the quantity, the route, evasion,
communications, instructions, payment, ownership or control of the
vehicle, prior or repeated transactions, and conduct at interception. The
inference must arise from facts attributed to that individual. The Court
cannot presume the same degree of control and mens rea against a
daily-wage driver as against the owner or organiser merely because both
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appear at different points in the movement of the goods.
15. These observations do not create immunity for a transporter
or a seller. Nor do they hold that an identified consumer or completed
consumption must invariably be shown before an investigation under
Section 123 can proceed. They require only the ordinary discipline of
criminal law: an offence carrying imprisonment up to ten years must be
supported, even at the prima facie stage, by material bearing on its
constituent acts and mental element. The deleterious effect of gutkha
and chewing tobacco and the legitimacy of measures protecting public
health cannot be doubted. Public-health gravity is a relevant
circumstance, but it cannot replace the statutory ingredients or create an
unlegislated embargo on bail.
16. The second and separate inquiry is the necessity of custody.
Even where the accusation under Section 123 is reasonably arguable,
that section contains no special restriction comparable to a statutory
twin-condition regime. The Court therefore applies the settled
considerations governing bail: the nature and gravity of the accusation,
the prima facie material, the role of the accused, the likelihood of
absconding or repeating the offence, the possibility of influencing
witnesses or obstructing investigation, the need for custodial
interrogation or recovery, the antecedents of the accused, and the ability
of conditions to secure the process. A possible sentence of ten years is
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relevant, but it is not a legal bar to release.
17. The fact that a principal supplier, manufacturer or intended
recipient has not yet been arrested cannot, without more, justify
indefinite detention of an accused already interrogated. The
investigating agency must be able to indicate what material remains to
be recovered or confronted, how the applicant can frustrate that step,
and why attendance and non-contact conditions would be inadequate.
Similarly, parity is role-sensitive. Bail granted to a co-accused is relevant
only after comparing the allegations, material, antecedents and
investigative necessity relating to each person.
18. Applying these principles, there is material at this stage to
infer that the applicants were not in accidental proximity to an
innocuous consignment. The volume of the goods, the alleged failure of
Applicant No.1 to stop the Scorpio when signalled, and the alleged flight
of Applicant No.2 are circumstances from which conscious knowledge of
the prohibited cargo may prima facie be inferred. The Court therefore
does not accept the broad submission that Section 123 must be excluded
from consideration at the threshold. The prosecution is entitled to
investigate the origin, ownership, intended delivery and financial trail of
the consignment.
19. That conclusion, however, does not decide the need for
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further incarceration. The entire consignment and the vehicle were
seized on 13th July 2026. Applicant No.1 was remanded to magisterial
custody on 14th July 2026. The Sessions Court records the Investigating
Officer’s statement that police custody was not required. The FIR itself
names the alleged source, the person at whose instance the goods were
carried, and the proposed recipient. Nothing placed before this Court
indicates any further recovery to be made from the applicants, any
identified witness whom they have attempted to influence, or any
communication, account, payment, ownership interest or earlier
transaction connecting either applicant with manufacture, financing,
stocking or sale. Their presently attributed role is transportation.
20. Both Applicants are stated to have no criminal antecedents.
Accused No.4, the alleged recipient of the consignment, has been
granted bail. That order does not compel release on parity, but it is
relevant while assessing whether the continued custody of the alleged
carriers is indispensable. The fact that two other accused have not been
arrested is a legitimate investigative concern; on the material presently
shown, it can be addressed by stringent attendance and non-contact
conditions. The alleged flight of Applicant No.2 also calls for a stricter
condition securing his presence, but, after his arrest and the seizure of
the entire property, it does not by itself require continued detention.
21. The learned Sessions Judge proceeded on the footing that
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there was a ‘bar’ to bail because Section 123 is serious, non-bailable and
punishable up to ten years. There is no such statutory bar. The order
also treated the mere naming of the Applicants in the FIR and general
apprehensions of absconding, repetition and tampering as sufficient,
even after noting that police custody was not required. The exercise
required an assessment of the Applicants’ individual role, the material
bearing on the ingredients, and the concrete need for custody. On that
assessment, further pre-trial detention would be disproportionate to the
investigative purpose presently disclosed.
22. The Application therefore deserves to be allowed, subject to
conditions that protect the investigation and the trial. The observations
in this order are confined to the decision on bail. They shall not
influence the investigation, consideration of the police report, framing of
charge, trial, or the final determination of the scope of Section 123 BNS
by a competent court.
ORDER
(i) Bail Application No.1580 of 2026 is allowed.
(ii) Applicant No. 1, Ganesh Marutirao Dhumal, and Applicant
No. 2, Rohan Ravindra Kadam, shall be released on bail in
connection with Crime No. 319 of 2026 registered with
Dharashiv City Police Station, Dharashiv, for the offences
punishable under Sections 123, 223, 274 and 275, read
with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023,
upon each of them executing a personal recognizance bond
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in the sum of Rs. 50,000/- (Rupees Fifty Thousand only),
with one or two solvent sureties in the like amount.
(iii) The Applicants shall attend Dharashiv City Police Station,
Dharashiv, every Monday between 10.00 a.m. and 12.00
noon for six weeks, and thereafter as and when called by
the Investigating Officer on written notice.
(iv) The Applicants shall furnish their current residential
addresses and mobile telephone numbers to the
Investigating Officer and the Trial Court and shall intimate
any change therein in writing within forty-eight hours.
(v) The Applicants shall not directly or indirectly contact,
threaten, induce or influence any prosecution witness or
any accused who is yet to be arrested, and shall not obstruct
the investigation in any manner.
(vi) During the pendency of the case, the Applicants shall not
engage in the manufacture, procurement, storage,
transport, distribution or sale of any gutkha, pan masala,
flavoured or scented tobacco, or other product prohibited
by a lawful order in force in Maharashtra.
(vii) The Applicants shall not leave India without the prior
permission of the Trial Court. They shall deposit their
passports, if any, with the Trial Court within seven [7] days
of their release. If the Applicants do not possess passports,
they shall file an affidavit to that effect.
(viii) The Applicants shall remain present before the Trial Court
on every date unless their attendance is specifically
exempted, and shall not seek avoidable adjournments.
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(ix) Breach of any of the aforesaid conditions shall entitle the
prosecution to seek cancellation of bail in accordance with
law.
(x) All above observations are prima facie in nature and
confined to the adjudication of the present bail application
only.
[ HITEN S. VENEGAVKAR ]
JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 23/09/2026 16:00:56
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