SANJAY BHAGIRATHMAL AGRAWAL AND ANOTHERversusTHE STATE OF MAHARASHTRA

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                                                   Cri.WP-1124-2026

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

           CRIMINAL WRIT PETITION NO.1124 OF 2026

     SANJAY S/O. BHAGIRATHMAL AGRAWAL AND ANOTHER
                         VERSUS
               THE STATE OF MAHARASHTRA

                                WITH

           CRIMINAL WRIT PETITION NO.1117 OF 2026

     SANJAY S/O. BHAGIRATHMAL AGRAWAL AND ANOTHER
                          VERSUS
                THE STATE OF MAHARASHTRA

                                 ..…
Mr. V. D. Sapkal, Senior Counsel i/b. Mr. Khizer Patel, Mr. Z. H.
Farooqui and Mr. Y.A. Jadhav, Advocate for petitioners.
Mr. D. J. Patil, APP for Respondent – State.
                                 .....

                            CORAM : HITEN S. VENEGAVKAR, J.
                     RESERVED ON : 20th AUGUST 2026
                  PRONOUNCED ON : 21st AUGUST 2026

ORDER :

.          Criminal Writ Petition No.1117 of 2026 is not board.

Upon mentioning taken on board.


1.         With the consent of both the parties heard the matter

finally for interim relief and admission.


2.         These two petitions are instituted by the same

petitioners. Criminal Writ Petition No.1124 of 2026 challenges

Crime No. 181 of 2026 registered with Jinsi Police Station,
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Chhatrapati    Sambhajinagar,   for   offences   punishable   under

Sections 3 and 7 of the Essential Commodities Act, 1955, Sections

4 and 23 of the Petroleum Act, 1934, Section 287 of the Bharatiya

Nyaya Sanhita, 2023 and Sections 3(1)(ii), 3(2) and 3(4) of the

Maharashtra Control of Organised Crime Act, 1999.


           Criminal Writ Petition No.1117 of 2026 challenges

Crime No.182 of 2026 registered at the same Police Station for

offences punishable under Sections 3 and 7 of the Essential

Commodities Act, Sections 318 and 3(5) of the Bharatiya Nyaya

Sanhita and Sections 3(1)(ii), 3(2) and 3(4) of the Maharashtra

Control of Organised Crime Act, 1999 (for short, “MCOCA”).


           The principal relief in each petition is quashing of the

concerned crime and all consequential proceedings, insofar as the

petitioners are concerned.


3.         The interim prayer in the Petition is for protection from

arrest of the petitioners in the aforesaid two crimes which reads as

under -.

           In Criminal Writ Petition No.1124 of 2026, prayer

clause (C) reads as -

           (C). Enlarge the Petitioners on bail, in the event of
           their arrest, on such terms and conditions as this
           Hon'ble Court may deem fit and proper, in connection
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                                                       Cri.WP-1124-2026

           with F.I.R. bearing Crime No.181 of 2026 registered
           with Jinsi Police Station, Chhatrapati Sambhajinagar,
           for the offences punishable under Sections 3 and 7 of
           the Essential Commodities Act, 1955, Sections 4 and
           23 of the Petroleum Act, 1934, Section 287 of the
           Bharatiya Nyaya Sanhita, 2023, and Sections 3(1)
           (ii), 3(2) and 3(4) of the Maharashtra Control of
           Organised Crime Act, 1999, and for that purpose
           issue necessary orders.”


            Prayer clause (D) seeks a writ of restraining the State

and its Officers ‘from arresting the petitioners and/or from taking

any other coercive action’ in that crime, save and except with the

prior leave of this Court.


            The pending petition prayer asks that, pending hearing

and final disposal, the police authorities and their officers, servants

and subordinates be restrained from arresting the petitioners or

taking coercive action against them in C.R. No.181 of 2026.



            In Criminal Writ Petition No.1117 of 2026, prayer

clause (C) reads as -



           “(C). Enlarge the Petitioners on anticipatory bail, in
           the event of their arrest, on such terms and
           conditions at this Hon’ble Court may deem fit and
           proper, in connection with F.I.R. bearing Crime No.
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           182 of 2026 registered with Jinsi Police Station,
           Chhatrapati      Sambhajinagar,   for   the   offences
           punishable under Sections 3 and 7 of the Essential
           Commodities Act, 1955, Sections 3(1)(ii), 3(2) and
           3(4) of the Maharashtra Control of Organised Crime
           Act, 1999, and Sections 318 and 3(5) of the
           Bharatiya Nyaya Sanhita, 2023, and for that purpose
           issue necessary orders.”


            Prayer clause (D) and the corresponding pending-

petition prayer, seek the same restraint against arrest or coercive

action in relation to that crime.


            Though the Petition was mentioned for urgent hearing

on grant of ad-interim relief, on last date the petitioners were

heard for sometime and then it was placed today at the request of

the Learned APP to take instructions and produce the necessary

case papers of the investigation agencies for courts perusal. Today

both the Learned counsel agreed that the pending petition prayers

had been fully and finally argued as prayers for interim relief, and

not merely for a temporary ad-interim arrangement until

completion of submissions. This common order decides only those

interim prayers pertaining to protection of petitioners from arrest

in the above mentioned two crimes. The challenge to the crimes

and to the application of MCOCA remains pending for adjudication

at the stage of final hearing.
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4.         The two crimes are registered from searches conducted

in the intervening night of 12th and 13th June, 2026 at a godown

below M. R. Function Hall, Rehmaniya Colony, Kiradpura. C. R.

No.181 of 2026 was lodged at the instance of the Assistant District

Supply Officer. The prosecution case recorded in that FIR is that

substantial quantities of wheat, rice, sugar, jowar and maize,

alleged to be commodities diverted from the Public Distribution

System, together with diesel, a weighing scale and an Eicher

vehicle bearing registration No. MH-18-BH-7720 were found at the

premises. The persons found there were named as accused. It is an

admitted position that neither of the present petitioners was

named in the said FIR.



5.         C. R. No.182 of 2026 was lodged at the instance of the

Child Development Project Officer. It concerns take home ration

and supplementary nutrition bearing the markings of the Women

and Child Development Department and intended for infants,

pregnant women and lactating mothers under the Integrated Child

Development Services. The FIR alleges unauthorised procurement,

removal of these supplementary nutrition from the main

distribution stream and then illegally storing them and thereafter
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intentionally selling them in black-market . The present petitioners

were not named in this FIR either.



6.         The case pleaded by the petitioners is that petitioner

No.1 is the proprietor of an entity by name Shree Gajanan Agro

Sales Corporation and petitioner No.2 is its manager. The firm is

engaged in the business of rice milling, processing and trading in

agricultural commodities and is an empanelled Custom Rice Milling

contractor of the State. The petitions rely upon Government

allotment and work orders concerning large quantities of paddy

and Custom Milled Rice. On that foundation, the petitioners say

that storage of substantial quantities of grain, the presence of

weighing equipment and commercial dealings with transporters

are ordinary incidents of their lawful business.



7.         The petitions place particular emphasis upon the

sequence commencing on 14th June, 2026. It is pleaded that police

officers visited the factory premises on 14th June, again on 17th

June and thereafter on 20th June, 2026. The notice dated 17th June

records that an arrested accused had stated that the grain seized

at the original godown was to be brought to Gajanan Agro for sale

and that grain had allegedly been sold there earlier. The notice

called for the CCTV footage and the recording system. The
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petitioners assert that the police viewed the footage and removed

the DVR/NVR unit. A further notice dated 20 th June, 2026 referred

to a weighment slip dated 10th June, 2026               and required

production of the weighment printer and connected equipments.

According to the petitioners, none of these visits yielded any

incriminating article against the petitioners.



8.          The petitions then refer to a search of the factory

premises on 2nd July, 2026 which was undertaken after a

memorandum allegedly made by an arrested accused. The search

record is stated to show one single sealed packet of Multi Mix

Cereals and Protein Premix bearing Government markings. In the

premises partly burnt or empty wrappers were also recovered

from or near a waste bin along with 1,370 filled bags secured on

suspicion for departmental examination. The petitioners contend

that the bulk bags contained rice bran, rejected rice and other by-

products of lawful milling, used as cattle feed or industrial raw

material.   They   rely   upon    representations      and   electronic

communications addressed to superior authorities around the time

of the search, alleging procedural irregularities, coercion of the

manager and planting of the scheme-marked packet and wrappers

in the factory premises and alleging high handedness and mala

fides at the hands of the investigating authorities.
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9.         The petitions further plead that the names of the

petitioners appeared later in the remand reports as wanted

accused. In C.R. No.181 of 2026, they rely upon the remand

proceedings of 21st July, 2026 and the transfer of custody of

arrested accused from the connected crime. They contend that the

implication is founded essentially upon statements made by co-

accused in police custody alone and that there is no lawful

discovery or independent documentary, electronic or financial

material connecting them to the goods seized at the original

godown. The petitioners contend that the statutory ingredients of

continuing unlawful activity, organised crime and organised crime

syndicate are absent and that MCOCA has been invoked

mechanically to disable the ordinary remedy of anticipatory bail.



10.        The learned APP raised a preliminary objection that the

petitioners invoke Article 226 of the Constitution to obtain a

restraint against arrest although the assignment of this Single

Bench is in criminal writ petitions and applications for quashing. It

was submitted that an order of pre-arrest protection under Article

226 of the Constitution ought not to be made by this Court when

the statutory remedy of anticipatory bail is excluded by MCOCA.

According to the Learned APP, the powers to consider and grant
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any such relief lies only with the Division Bench of this Court .



11.         The objection, insofar as it concerns the roster, cannot

be accepted. The extant assignment expressly places before this

Court all Criminal Writ Petitions and applications for quashing of

FIRs, C.R.s, charge-sheets, orders taking cognizance, discharge

orders and orders framing charge from the year 2025 onwards, as

also criminal applications under Section 482 of the Code of

Criminal Procedure or Section 528 of the Bharatiya Nagarik

Suraksha Sanhita other than quashing matters. Both petitions are,

in their essential character and principal relief, criminal writ

petitions for quashing crimes registered in the year 2026. They

therefore fall within the express assignment of this court.



12.         The roster determines which Bench of the High Court

will exercise the Court's jurisdiction in a class of cases; it does not

diminish the constitutional source of that jurisdiction. Once a

criminal writ petition for quashing is validly placed before the

assigned Single Judge, an interlocutory prayer incidental to that

petition does not migrate to another Bench merely because Article

226 of the Constitution is one of the provisions invoked. The Chief

Justice is the master of the roster and the assigned Bench alone

may transact the judicial business so allocated. This Court thus has
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jurisdiction to consider the interim prayer of grant of pre-arrest

relief to the petitioners as prayed in the petitions.



13.         The preliminary objection requires four concepts to be

kept distinct: first, the constitutional jurisdiction vested in the

High Court; secondly, the internal allocation of judicial business

under the roster; thirdly, the maintainability of the proceeding as

instituted; and fourthly, the entitlement of a litigant to the relief

claimed. Article 226 confers jurisdiction upon the High Court as a

constitutional court. The roster, framed under the authority of the

Hon’ble Chief Justice as master of the roster, identifies the Judge

or Bench by whom that jurisdiction is to be exercised in a

particular class of proceedings. Maintainability concerns the legal

character of the proceeding brought before the Court, whereas

entitlement to interim relief concerns the limits governing the

exercise of the jurisdiction. An objection belonging to one of these

fields cannot be answered by importing a limitation belonging to

another. The principles recognised in State of Rajasthan v.

Prakash Chand, (1998) 1 SCC 1, and Campaign for Judicial

Accountability and Reforms v. Union of India , (2018) 1 SCC 196,

must be understood in this institutional framework.



14.         For the purpose of assignment, the Court must
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ascertain the essential character and principal relief of the

proceeding. The present proceedings are criminal writ petitions

seeking quashing of crimes registered in the year 2026. That class

of    proceedings       is    expressly     assigned     to   this     Bench.    An

interlocutory    application         does        not   ordinarily     possess    an

institutional identity independent of the substantive proceeding in

which it is made. Unless the roster expressly provides otherwise,

the authority to hear the principal cause necessarily carries the

authority to consider, grant or refuse such incidental relief as the

law permits in that cause. A contrary construction would fragment

one criminal writ petition between different Benches merely

because different provisions of the Constitution or different forms

of relief are invoked at successive stages.



15.         This conclusion does not confer upon the assigned

Single   Judge      a        freestanding    jurisdiction     to     entertain   an

anticipatory-bail application prohibited by MCOCA. It means only

that the Bench validly seized of the quashing petition is competent

to determine whether the exceptional constitutional relief claimed

as incidental to that petition is legally available. The question

whether the prayer is maintainable before the assigned Bench and

the question whether it deserves to be granted are separate. The

first is answered by the assignment; the second must be answered
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by the Constitution, the special statute and the governing judicial

principles. The objection thus stands rejected.



16.        On merits of the Petitions, learned Senior Counsel for

the   petitioners   submitted   that    the   admitted    documentary

chronology itself establishes a colourable exercise of powers during

investigation. The notices of 17th and 20th June, 2026 show that the

investigating agency knew about Gajanan Agro and about the

alleged earlier sales and the weighment slip well before 2 nd July,

2026 . It is therefore urged that the subsequent remand narrative,

insofar as it projects the memorandum of 2 nd July as the source of

that knowledge, is demonstrably incorrect and was placed before

the Special Court to manufacture a later connection.



17.        It was argued that the repeated earlier visits produced

no incriminating recovery, whereas during the search on 2 nd July

the police claimed, within a short time, to have found one scheme-

marked packet and burnt or empty wrappers in an industrial

premises extending over approximately 50,000 square feet. The

petitioners' communications to superior officers, their complaint

about the removal of the DVR/NVR, and their allegation that

packets were moved and photographed were relied upon as

contemporaneous circumstances demonstrating mala fides at the
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hands of the Investigation Officers rather than an afterthought.



18.          Counsel submitted that the Government work orders

and allotments explain the possession of grain, weighing facilities,

transport dealings and large commercial transactions. The 1,370

bags, according to the pleadings and the supporting photographs

and representations, contain milling by-products and not nutrition

material diverted from an Anganwadi scheme. He further argued

that a solitary one kilogram packet and empty wrappers of

disputed origin, cannot connect the lawful business to an organised

crime syndicate. It was further submitted that a statement of a co-

accused in police custody is not substantive evidence against the

petitioners except to the limited extent of a legally proved

discovery.



19.          The petitioners further contended that they were not

named in the original FIRs or the initial remand papers and also

they were not named in the material then disclosed. The

prosecution has not, according to Learned Senior Counsel,

established the required nexus between either petitioner and the

alleged syndicate, nor the statutory requirement of continuing

unlawful activity has been demonstrated or exits in the present

case. He argued in rejoinder that previous cases referred to by the
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                                                     Cri.WP-1124-2026

State are said to be false, unrelated, disposed of, or incapable of

constituting the statutory foundation. He submitted that the

Daulatabad charge-sheet, it was pointed out, was filed after the

prior approval in the present crimes and could not retrospectively

sustain the approval order granted by the Competent Authority.



20.        Finally, learned Senior Counsel admits that Section

21(3) of MCOCA excludes anticipatory bail under Section 438 of

the Code, corresponding to Section 482 of the BNSS. He submitted,

however, that the constitutional jurisdiction survives and must be

exercised where the action is without jurisdiction, demonstrably

mala fide or unsupported by the statute. The petitioners seek

protection, not on ordinary bail considerations, but to prevent

arrest under what is alleged to be a fabricated and jurisdictionally

invalid application of MCOCA.



21.        The learned APP for State submitted that the relief

must be tested by its legal effect and not by its label. An order

restraining arrest for the duration of the quashing petitions would

operate as anticipatory bail notwithstanding the legislative

command in Section 21(3) of MCOCA Act. The Learned APP agree

that the extraordinary jurisdiction is not extinguished but submits

that it cannot be employed as a second statutory window. Unless
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the   petitioners   demonstrates,       on   clear   and    substantially

undisputed material, that MCOCA is wholly inapplicable or that the

threatened arrest is a proved abuse, the investigation cannot be

restrained or no relief of pre-arrest protection can be granted.



22.        The learned A.P.P. disputed the petitioners' factual

account. It was submitted that an earlier inquiry into the concern

and the later emergence of further incriminating material are not

mutually exclusive; he on instructions submitted that investigating

officer has not seized by way of a DVR/NVR during the earlier visit.

He argued that the emails and complaints relied upon by the

petitioners do not establish planting or personal enmity but the

same was an desperate effort on the part of the petitioners to make

false allegations against the Investigating officers and create undue

pressure on the officers. He submitted that the falsity of the

allegations in the emails and communications can be perused from

the date and time when the allegations are made. According to him

the allegations are levelled only after the search and disclosure

about the statement of co-accused on 2 nd July, 2026 was informed

to the petitioners and search was actually carried out in the

factory premises. He further submitted that the lawful authority to

mill paddy and return custom milled rice does not, according to the

State, authorise possession of beneficiary specific nutrition packets
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or other diverted welfare commodities. He further submitted that

the petitioners or its entity had no licence to deal and possess the

commodities that were specialised and specific nutrition packets

meant for the welfare of children, pregnant and lactating mothers.

The Government licences to the petitioners was in altogether

different commodities and for different godown premises. The

Godown premises in which the search was carried out was not

listed in the licenced premises permitted by the government.



23.        The State further submitted that prior approval under

Section 23(1)(a) of MCOCA was obtained before MCOCA provisions

were added. He argued that that the alleged syndicate has

qualifying antecedent charge-sheets; and that the investigation

indicates contact and commercial linkage between the alleged

members and the petitioners. It was argued that a person whose

role emerges during investigation need not have been named in the

FIR or in the prior approval order. The investigation into the

source, transport, storage, payment and earlier transactions is

continuing and custodial interrogation is stated to be necessary.



24.        During the hearing, the learned A.P.P. tendered the

case papers, an investigation update and a report prepared for the

Public Prosecutor for the Court's perusal. Those papers were not
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supplied to the petitioners because the investigation is in progress.

The Court has therefore not treated their contents as part of the

petitioners' pleadings or as material to which their counsel had an

opportunity to furnish a factual answer. The details of that

material are deliberately not reproduced. They have been looked at

only to the limited extent necessary to ascertain whether the

State's opposition and the continuing investigation are wholly

unsupported. The submissions attributed to the petitioners in this

order are confined to the petitions, their annexures and the oral

submissions recorded at the hearing.



25.        The   production    of   investigation   papers   for   the

confidential perusal of the Court presents a distinct procedural

situation. At the stage of an incomplete investigation, the Court

may legitimately refrain from directing disclosure of material

whose disclosure may prejudice the investigation. At the same

time, material which has not been disclosed to the affected party

cannot be used to return an affirmative finding upon a disputed

fact, to pronounce upon guilt, or to reject a factual explanation as

false. Judicial perusal of such material and adversarial proof of its

contents are not interchangeable processes.



26.        The permissible use of such material at this stage is
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therefore limited. It may assist the Court in deciding whether the

investigation is real and continuing and whether constitutional

interdiction is presently indispensable. It cannot cure a patent

absence of statutory jurisdiction, nor can it be the sole foundation

for an adverse conclusion against the Petitioners. The order

refusing protection must remain sustainable upon the nature of the

petitioners’ own pleaded and annexed case, the FIRs and other

disclosed material, and their failure to satisfy the exceptional

constitutional threshold. This limitation preserves both the

confidentiality of a legitimate investigation and the elementary

requirement that no adverse adjudication be founded upon

material which the affected person has had no opportunity to meet.



27.        Before considering the interim relief on merits of the

matters, it is necessary to consider the statutory framework

governing the issue in hand. Section 2(1)(d) of MCOCA defines

continuing unlawful activity as an activity prohibited by law,

constituting a cognizable offence punishable with imprisonment of

three years or more, undertaken singly or jointly as a member of

an organised crime syndicate or on behalf of such syndicate, in

respect of which more than one charge-sheet has been filed before a

Competent Court within the preceding ten years and the Court has

taken cognizance. Section 2(1)(e) defines organised crime as such
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continuing unlawful activity committed by the specified unlawful

means with the objective, amongst others, of obtaining pecuniary

benefit or undue economic or other advantage. Section 2(1)(f)

defines an organised crime syndicate as a group of two or more

persons acting singly or collectively as a syndicate or gang and

indulging in organised crime.



28.        Sections   3(1)(ii),   3(2) and    3(4),   invoked   here,

respectively address the punishment for organised crime not

resulting in death, conspiracy or intentional facilitation of

organised crime, and membership of an organised crime syndicate.

Section 23(1)(a) requires prior approval by the competent police

authority before information about an offence of organised crime is

recorded. These requirements are safeguards against casual

invocation of an exceptionally stringent enactment and must

ultimately be shown to have been satisfied.



29.        Section 21(3) expressly excludes the application of

Section 438 of the Code, corresponding section 482 of BNSS, in

relation to an arrest for an offence punishable under MCOCA.

Section 21(4), which governs release after arrest, adds to the

ordinary bail requirements the familiar twin conditions, including

reasonable grounds for believing that the accused is not guilty and
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is not likely to commit an offence while on bail. Although the twin

conditions do not mechanically operate as a statutory anticipatory-

bail test, Sections 21(3) and 21(4) unmistakably disclose a

legislative policy of exceptional restraint in matters of liberty once

MCOCA is lawfully attracted.



30.          The power of judicial review under Article 226 of

Constitution of India is part of the basic constitutional structure

and is not ousted by Section 21(3) of MCOCA. That proposition,

however, is only the beginning of the inquiry. It does not follow that

an accused may obtain, through an interim writ, substantially the

same relief which the special statute has expressly withheld. The

Court must preserve the constitutional power for a truly

exceptional case without converting it into a parallel jurisdiction of

anticipatory bail.



30.          The survival of the power under Article 226 and the

manner of its exercise must not be confused. Section 21(3) cannot

extinguish    the    constitutional     power   of   judicial   review.

Nevertheless, the legislative policy embodied in that provision is a

relevant constitutional consideration when the Court determines

the form and intensity of interim relief. Respect for that policy is

not an abdication of judicial review. Equally, invocation of Article
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226 cannot become a means of circumventing a statutory

prohibition which the Court is otherwise bound to respect.



32.        The stringency of MCOCA operates in two directions.

Because the enactment is drastic in its consequences, its

definitional requirements, the approval contemplated by Section

23 and the procedural safeguards must be strictly observed when

their validity is finally examined. At the same time, because the

Legislature has expressly excluded anticipatory bail, interlocutory

pre-arrest protection cannot be granted upon the ordinary

considerations which govern an application under Section 438 of

the Code or Section 482 of the BNSS. Strict scrutiny of the

statutory foundation and exceptional restraint in granting pre-

arrest immunity are not inconsistent propositions. They are

complementary consequences of the same statutory stringency.



33.        The distinction may be stated in another manner. A

jurisdictional   objection   asserts that,   even if   the   essential

prosecution allegations are provisionally accepted, the law does

not permit MCOCA to be invoked. A merits objection asserts that

the prosecution allegations are factually false, unreliable or

ultimately incapable of proof. A patent jurisdictional objection may,

in an exceptional case, invite constitutional protection. A merits
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objection which requires selection between rival factual versions

ordinarily cannot. Article 226 is not the forum for conducting a

pre-arrest trial into which version of a disputed search, recovery,

transaction or disclosure is true.



34.          An arguable case for issuance of Rule is not, by itself, an

exceptional case for protection from arrest. The threshold for

entertaining a challenge, the threshold for finally quashing

criminal proceedings and the threshold for granting pre-arrest

immunity during a MCOCA investigation are related but not

identical. The Court may find that the petition raises an issue

requiring final consideration and yet decline to suspend, in the

meantime, the statutory incidents of the investigation. The

pendency of a challenge does not create an independent equity

against arrest.



35.          In the considered view of this Court, the following

questions provide a workable constitutional test when pre-arrest

protection is sought in a writ petition involving MCOCA:

      (i)    whether the alleged defect is patent upon the FIR,
             prior   approval   or   substantially   undisputed
             documents, rather than dependent upon disputed
             evidence;

      (ii)   whether the defect goes to the legal authority to
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              invoke MCOCA, and not merely to the probable
              sufficiency of evidence at trial;

      (iii)   whether the Court can determine the defect without
              testing a disclosure statement, choosing between
              rival accounts of a search, assessing electronic or
              financial records, or conducting a mini-trial;

      (iv)    whether refusal of protection would produce a total
              miscarriage    of    justice  or    an irreversible
              constitutional injury which cannot adequately be
              corrected in the ordinary course; and

      (v)     whether any protection which may be necessary can
              be precisely reasoned, narrowly tailored and limited
              in   duration    without   obstructing    a lawful
              investigation.

              Unless   the   case      satisfactorily   crosses   these

requirements, an order restraining arrest would cease to operate

as an exceptional constitutional remedy and would become

anticipatory bail in substance.



36.            In Hema Mishra v. State of Uttar Pradesh , (2014)

4 SCC 453, the Hon’ble Supreme Court considered pre-arrest

protection under Article 226 of the Constitution where the

statutory provision for anticipatory bail was unavailable. The

Court held that the constitutional power survives, but it must be

exercised sparingly, in rare and appropriate cases and in extreme

circumstances; it cannot be used to open a second route which
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defeats the legislative exclusion. Protection may be justified only

where refusal would produce a total miscarriage of justice.



37.        In Neeharika Infrastructure Pvt. Ltd. v. State of

Maharashtra, (2021) 19 SCC 401, the Hon’ble Supreme Court

reiterated that investigation of a cognizable offence is the statutory

right and duty of the police. During an ongoing investigation, when

the facts are incomplete and disputed, an order of 'no coercive

steps' or 'no arrest' cannot be made routinely or in vague terms.

Even where an exceptional case is shown, the High Court must

record reasons demonstrating why interference is indispensable.

The test for such interim intervention is informed by the same

circumspection that governs the extraordinary power to quash.


38.        Though the factual framework in State of Maharashtra

v. Pankaj Jagshi Gangar, (2022) 2 SCC 66, concerned post-arrest

interim bail, the constitutional principle is instructive: writ

jurisdiction cannot be used at an interlocutory stage to confer

substantially the same liberty which the special statutory regime

withholds, particularly by virtually deciding the validity of the

MCOCA prosecution before final adjudication.



39.        The controlling inquiry is therefore not whether the
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petitioners have roots in society or are willing to attend the police

station, or can be subjected to suitable conditions. Those are

ordinary anticipatory bail considerations. The writ Court asks

whether, on the FIRs, the petitions, their annexures and

substantially undisputed material, the invocation of MCOCA or the

threatened arrest is demonstrably without jurisdiction, founded on

established mala fides, or so plainly abusive that constitutional

intervention is the only means of preventing a total miscarriage of

justice. If answering the prayer requires the Court to choose

between rival submissions of a search, determine whether an

article was planted, test a panchanama, assess call or financial

records, or decide the evidentiary weight of a disclosure, the case

ordinarily falls outside that narrow class amenable to writ

jurisdiction.



40.         It is equally necessary to clarify what rejection of the

present prayer does not mean. Section 21(3) excludes anticipatory

bail; it does not make arrest an automatic consequence of the

registration of every MCOCA offence. The investigating officer

continues to be governed by Articles 21 and 22, the applicable

provisions of the BNSS and the settled requirements governing a

lawful arrest. The power to investigate must not be confused with a

duty to arrest in every case. Correspondingly, refusal by the writ
                               -26-
                                                    Cri.WP-1124-2026

Court to grant pre-arrest immunity is neither a direction to arrest

nor judicial approval of a mechanical arrest. It merely leaves the

investigating agency free to exercise its statutory powers in

accordance with law.


41.         Two further principles are material. In Kavitha

Lankesh v. State of Karnataka , (2022) 12 SCC 753, the Hon’ble

Supreme Court held, while construing pari materia organised-

crime legislation, that prior approval is in respect of the offence

and need not name every person whose role may emerge during

investigation. Absence of the petitioners' name from the FIRs or

the approval, though factually relevant, is therefore not by itself

fatal. In State of Gujarat v. Sandip Omprakash Gupta, (2024) 14

SCC 401 : 2022 SCC OnLine SC 1727, the Court explained that

qualifying earlier charge-sheets and cognizance establish the

element of continuing unlawful activity, while a later incident of

continuation is necessary to constitute the substantive organised-

crime offence. Thus the existence of earlier cases alone is

insufficient, but the Court cannot at the interim stage insist that

every later participant must personally be named in each

predicate case if the prosecution otherwise shows a real nexus with

the syndicate. The existence and sufficiency of that nexus remain

open to final scrutiny.
                                 -27-
                                                     Cri.WP-1124-2026




42.          The statutory architecture further reveals two distinct

inquiries. “Continuing unlawful activity” is substantially activity-

and syndicate-centric: its existence may be founded upon

qualifying charge-sheets and cognizance concerning the activities

of the alleged syndicate. Criminal liability under Sections 3(1),

3(2) or 3(4), however, remains person- and conduct-centric. The

prosecution must ultimately establish the particular accused’s

connection with the continuing unlawful activity and the degree of

conscious participation, facilitation or membership required by the

provision invoked. It is therefore neither necessary that every

later accused should personally figure in every predicate offence,

nor sufficient that the prosecution merely shows that such person

had commercial acquaintance with an alleged member of the

syndicate.



43.          The same distinction assumes significance where an

otherwise lawful commercial undertaking is alleged to have been

used as an interface for organised crime. A licence, Government

contract or legitimate business activity does not confer immunity if

the undertaking is knowingly employed for receiving or processing

diverted welfare commodities. Conversely, the possession of large

stocks,   weighing    equipment,    banking   turnover,   transport
                                -28-
                                                     Cri.WP-1124-2026

arrangements     or   commercial       communications   are    facts

intrinsically compatible with the licensed business and cannot,

without more, establish membership of or intentional facilitation to

an organised crime syndicate. The necessary bridge must consist of

circumstances capable of connecting the particular transaction

and the particular accused with the unlawful activity. Whether

such a bridge is ultimately established is a matter of proof; the

interim writ inquiry is confined to whether its existence is

demonstrably impossible or the prosecution’s assertion of it is a

mere pretence.



44.        Considering the aforesaid legal and constitutional

position lets proceed to analyze the case of the petitioners. The

petitioners' strongest circumstance is the documentary chronology

of 17th and 20th June, 2026. Those notices establish that the

investigating agency knew before 2nd July about Gajanan Agro and

also about the allegation of proposed and earlier sales, and of a

weighment slip attributed to the said entity. Any subsequent

remand applications suggesting that the said entity itself came to

light for the first time on 2nd July, 2026 according to petitioner

therefore would be inaccurate. This aspect of the petitioners

requires a clear explanation in the investigation and will be

relevant when the challenge to the proceedings is finally examined.
                               -29-
                                                    Cri.WP-1124-2026




45.        That chronology of events put up by the petitioners,

according to them however, lead inexorably to the conclusion that

the search on 2nd July, 2026 was fabricated. It must be noted that

knowledge of the identity and location of a business entity are

different from acquisition of later material said to relate to a

particular transaction or articles. Earlier visits of investigating

agency without recovery do not make a subsequent recovery

legally impossible. To accept the petitioners' submission at this

stage, the Court would have to find that the packet and wrappers

were planted, reject the search record and the State's denial, and

accept the petitioners' averments of the DVR/NVR recovery

controversy. Those are disputed questions of fact which cannot

fairly be concluded upon affidavits and submissions in an interim

writ inquiry.


46.        Secondly, representations made by the petitioners to

superior authorities are undoubtedly relevant. Their timing

prevents the allegation of police impropriety from being brushed

aside merely as a defence devised after arrest. They require

preservation and objective examination of the contemporaneous

electronic and official record. Yet a contemporaneous allegation is

not, by that fact alone, proof of the allegation. The petitioners'
                                -30-
                                                      Cri.WP-1124-2026

communications and the official search record remain competing

versions. The present record does not permit a finding that mala

fides or planting stand established on substantially undisputed

material.


47.         The petitioners reliance The Government work orders

and allotments also have real explanatory value. They render the

presence of large quantities of paddy or rice, milling by-products,

weighing machinery, transport payments and routine commercial

contacts consistent with lawful business. At this stage, no adverse

conclusion can be drawn merely from the scale of the petitioners'

stock or turnover. But those documents do not, by themselves,

answer the allegation concerning the scheme-marked packet and

wrappers said to have been found at the managed premises.

Whether those articles were genuinely recovered, how they came

there, and whether they have any transaction-level connection

with the petitioners are matters for investigation and later judicial

scrutiny.


48.         The argument based on the custodial statement of a co-

accused is likewise not sufficient to grant the present relief. The

Petitioners are correct that such a statement is not substantive

evidence against them except within the limits prescribed by the

law of evidence. But an investigation may lawfully follow
                                    -31-
                                                         Cri.WP-1124-2026

information received from an accused and collect independent

material. At the present stage, the Court is not deciding

admissibility at trial. The question is whether the entire

investigation against the Petitioners is demonstrably founded on

nothing except an inadmissible statement. On the Petitioners’ own

annexures, including the prior notices, it cannot presently be

concluded that the investigation rests exclusively upon an

inadmissible   custodial   statement.      The   investigation   papers,

examined only for the limited purpose stated in paragraph 20, also

do not justify treating the continuing investigation as wholly

fictitious or as a mere pretence.



49.        The absence of the petitioners' names from the original

FIRs and the prior approval does not create a jurisdictional bar to

their later implication. The law laid down in case of Kavitha

Lankesh (Supra), answers that submission. The State must

ultimately prove a genuine nexus between each Petitioner and the

alleged organised crime; ordinary commercial acquaintance or

isolated business contact will not suffice. At the present stage,

however, the allegations of earlier supply to the concern, the

weighment material and the disputed search prevent the Court

from declaring that no such nexus can possibly exist.
                                 -32-
                                                      Cri.WP-1124-2026

50.        The challenge to the statutory predicates under Section

2(1)(d) is important and remains open. At this stage the State

asserts that the approval was based upon qualifying charge-sheets

of alleged members of the syndicate and not merely upon

antecedents personal to the present petitioners. Whether those

cases meet every statutory requirement is a mixed question of fact

and law reserved for final consideration; the material presently

available does not render the approval non est on its face.



51.        The plea of mala fides raised by the petitioners is

serious but has not crossed the exceptional threshold. The

petitions contain allegations against named police officers and

refer generally to business rivals. They do not presently disclose a

clear pre-existing personal or legal animus which, on admitted

facts, makes the prosecution explicable only as retaliation. The

complaints may justify inquiry into the fairness of the search, but

they do not enable the Court to hold, without testing evidence, that

the entire application of MCOCA is a colourable exercise and mala

fides on the part of the investigation agency.



52.        The submission that petitioner No.2 was present during

the search but was not then arrested, and that no notice under

Section 35(3) of the BNSS was served before his name appeared in
                                  -33-
                                                        Cri.WP-1124-2026

later remand papers, does not establish an enforceable immunity

from arrest. The statutory safeguards governing arrest remain

binding upon the investigating agency. Their alleged breach may be

examined in the appropriate proceeding. But the fact that

immediate arrest was not made during an earlier stage of inquiry

does not preclude arrest if the investigating officer later records

lawful reasons on further material.



53.         The Court has also kept in view the undisclosed

investigation papers tendered for its limited perusal. Since the

petitioners had no opportunity to meet their factual contents, the

rejection of relief cannot rest upon treating every assertion in

those papers as proved. Equally, the Court cannot ignore that the

investigation is live and that the State's assertion of further links is

not shown to be a mere pretense. The proper course is to refrain

from publishing or conclusively evaluating that material and to

decide whether the petitioners have established the exceptional

constitutional case from their own pleaded and annexed record. In

the present case the petitioners have failed to establish the same.



54.         The interim relief sought by the petitioners         would

remain operative throughout the pendency of the quashing

petitions. In practical effect it would confer the very pre-arrest
                                  -34-
                                                          Cri.WP-1124-2026

immunity which Section 21(3) withholds. Granting it would

require   this   Court   to   accept     the   petitioners'   commercial

explanation as conclusive, adjudge the disputed recovery to be

planted, reject the State's account of the investigation, and hold the

MCOCA foundation invalid before the full record is available. That

would amount to an interlocutory trial of the defence and would

trench upon the investigation in the manner disapproved in the

case of Hema Mishra, Neeharika Infrastructure and Pankaj Jagshi

Gangar (Supra).



55.        The Court is therefore unable, at this stage, to hold that

the invocation of MCOCA is demonstrably without jurisdiction and

that mala fides as alleged by the petitioners stands established on

admitted or incontrovertible material. On the petitioners’ pleaded

and annexed record, and having regard to the initial stage of

investigation, it cannot be held that the asserted nexus is

demonstrably impossible or that the prosecution is a mere

pretense. The petitioners have raised matters in particular the

prior documentary chronology, the statutory predicates and the

fairness of the disputed search. Those matters do not, however,

satisfy the much higher threshold for constitutional pre-arrest

protection during a pending MCOCA investigation.
                                -35-
                                                      Cri.WP-1124-2026

56.        In C.R. No.181 of 2026, the Petitioners were not

present at the original godown and were not named in the FIR. No

Public Distribution System commodity was initially recovered from

them. Those circumstances are important. Nevertheless, the

Petitioners’ own annexures disclose that, before their implication,

the investigation had proceeded upon allegations of intended or

earlier sales to their concern and upon a weighment slip attributed

to the concern. Determination of the truth, admissibility and

transaction-level significance of that material would require

examination of the investigation record. The case cannot therefore

presently be placed in the category where the asserted connection

with C.R. No.181 is legally impossible on admitted facts.



57.        In C.R. No.182 of 2026, the Petitioners directly dispute

the search of 2 July 2026 and allege planting of the scheme-

marked packet and wrappers. The chronology relied upon by them

gives the allegation sufficient seriousness to require examination

at the final hearing. But granting protection now would require the

Court to accept the allegation of planting, disbelieve the official

search record and determine the character of the articles and bulk

bags without evidence. The very nature of that exercise places the

case outside the narrow class in which constitutional pre-arrest

protection can be granted.
                                        -36-
                                                                 Cri.WP-1124-2026



58.           The legal position emerging from the above discussion

may be summarised thus:

      “(i)    where the assignment expressly entrusts criminal
              writ petitions seeking quashing of FIRs or crimes to
              a Single Bench, that Bench is competent, unless the
              roster provides otherwise, to consider every
              incidental      interim      prayer        made    in     such
              proceedings;

      (ii)    the competence to consider the prayer does not
              convert the proceeding into an anticipatory-bail
              application and does not dilute Section 21(3) of
              MCOCA;

      (iii)   Article 226 remains available as a constitutional
              safety valve, but not as a statutory substitute for
              anticipatory bail;


      (iv)    pre-arrest protection in a MCOCA matter may be
              considered only where the absence of jurisdiction,
              established mala fides or abuse of process is
              apparent     from    admitted         or    incontrovertible
              material     and     can         be   determined        without
              undertaking a factual or evidentiary adjudication;


      (v)     an arguable challenge to the application of MCOCA,
              sufficient for issuance of Rule, is not by itself
              sufficient to restrain arrest during the pendency of
              the petition;
                                        -37-
                                                                Cri.WP-1124-2026

       (vi)   confidential investigation material may be perused
              for the limited purpose of deciding whether
              immediate constitutional interdiction is necessary,
              but cannot be used to return an adverse factual
              finding    against    a    person    who    has     had   no
              opportunity to meet it; and


       (vii) refusal     of   constitutional      pre-arrest    protection
              neither directs arrest nor relieves the investigating
              officer    of   the   constitutional       and     statutory
              safeguards governing the exercise of the power of
              arrest.”


59.           Tested upon these principles, the Petitioners have

raised issues which deserve consideration at the final hearing,

particularly concerning the pre-existing documentary chronology,

the statutory predicates and the fairness of the disputed search.

They     have    not,    however,       established    upon     admitted     or

incontrovertible material that either prosecution is a jurisdictional

nullity, that the application of MCOCA is a mere pretence, or that

refusal of protection would produce a total miscarriage of justice.

The interim prayers must therefore fail.


                                    ORDER

(i)           Rule. Rule is made returnable. The learned A.P.P.
waives service for the Respondent-State.

(ii)          The prayer in Criminal Writ Petition No.1124 of 2026
                                   -38-
                                                        Cri.WP-1124-2026

to restrain the police authorities from arresting the petitioners or
taking coercive action against them in connection with C.R. No.181
of 2026, pending hearing and final disposal of the petition, is
rejected.

(iii)       The corresponding prayer in Criminal Writ Petition
No.1117 of 2026 to restrain the police authorities from arresting
the petitioners or taking coercive action against them in
connection with C.R. No.182 of 2026, pending hearing and final
disposal of the petition, is rejected.


(iv)        The Registry shall list both petitions together for final
hearing in accordance with their turn.


(v)         All observations in this order are pri ma facie confined
to the interim relief, and shall not prejudice the investigation, the
Special Court, or the final adjudication of the petitions.



                                          (HITEN S. VENEGAVKAR)
                                                 JUDGE




Tandale