High Court

Judgment20 apl1123.251IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPURCRIMINAL APPLICATION APL NO.1123 OF 20251. Sheikh Mahebub Sheikh Sadik, aged 39years, occupation business, r/o Shastri Nagar,Arni, taluka Arni, district Yavatmal.2. Mohammad Saleem Peer MohammadSayani, aged 58 years, occupation agriculturist,r/o Vai Road, Vali Sahab Nagar, WardNo.05, Ner, taluka Ner, district Yavatmal. ….. Applicants.:: V E R S U S ::1. State of Maharashtra, through PoliceStation Officer, Police Station NerPansopant, taluka Ner, district Yavatmal.2. Food Safety Officer, Food and DrugAdministration (MS) Yavatmal. ….. Non-applicants.==============================Shri S.A.Mohta, Counsel for the Applicants.Shri N.B.Jawade, APP for Non-applicant Nos.1 & 2/State.==============================CORAM : URMILA JOSHI-PHALKE, J.DATE : 19/01/2026ORAL JUDGMENT.....2/- Judgment20 apl1123.2521. Heard learned counsel Shri S.A.Mohta for theapplicants and learned Additional Public Prosecutor ShriN.B.Jawade for the State. Admit. Heard finally by consent.2. By this application, the applicants are seekingquashing and setting aside FIR in connection with CrimeNo.855/2023 registered under Sections 188, 272, 273, and328 of the IPC and under Sections 26(2)(i), 27(3)(e), 30(2),(a) and 59 of the Food Safety and Standard Act, 2006 andconsequent proceeding arising out of the same bearingSessions Case No.52/2024 pending before learned AdditionalSessions Judge, Yavatmal.3. As per allegations in the FIR, PSI i.e. informant hasreceived a secret information that in “Bolero Pick-Up Vehicle”bearing registration No.MH-29/T/6279, some persons aretransporting “Banned Contraband Article” and “ScentedTobacco” near Bye-Pass of Ner and, therefore, he along withother raiding party members intercepted the said vehicle and.....3/- Judgment20 apl1123.253during interception of the vehicle, he found co-accusedSayeed Jahagir was driver and accused Sheikh Kadar Shaikh,was cleaner in the said vehicle. Upon inspection of the saidvehicle, they were found along with contraband articles worthof Rs.7,07,760/- and, therefore, co-accused driver and cleanerwere taken into custody.4. After registration of the crime, the driver and thecleaner were interrogated. They disclosed applicant No.1 as“supplier” and applicant No.2 as “receiver” of the saidcontraband articles. On the basis of the said investigation, theapplicants were arrayed as accused. 5. Learned counsel for the applicants submitted thatexcept statements of the co-accused, there is absolutely nomaterial to connect the applicants in the alleged offence. Thestatement of the co-accused is not admissible in evidence andas far as involvement of the applicants, either in supplying orreceiving the amount, is not revealed from the entire.....4/- Judgment20 apl1123.254investigation papers. In view of that, the application deservesto be allowed.6. Per contra, learned APP for the State has stronglyopposed the said contentions and invited my attentiontowards the criminal antecedents of the applicants especiallyapplicant No.1 Sheikh Mahebub Sheikh Sadik against whomin all eleven offences are registered and against the otherapplicant one offence is registered. He submitted thatconsidering various offences are registered against theapplicant No.1 for the similar type of offences, the applicationdeserves to be rejected as prima facie involvement reveals. Hesubmitted that considering the allegations levelled against theapplicants, that one is the “supplier” and one is the “receiver”of the said contraband articles banned in the State ofMaharashtra, the application deserved to be rejected.7. On hearing both the sides and perusing theinvestigation papers, it reveals that on the basis of the secret.....5/- Judgment20 apl1123.255information, the informant conducted a raid and one vehiclewas intercepted and from the possession of driver SayeedJahagir and cleaner Sheikh Kadar Shaikh of the said vehicle,the said contraband articles were seized.8. Perusal of the entire chargesheet reveals that exceptstatement of the co-accused, admittedly, there is no materialcollected during the investigation by the investigating officerto show involvement of the applicants either as “supplier” or“receiver”. 9. In the backdrop of these facts, chargesheet is filed onrecord after completion of the investigation. 10. As observed earlier, the applicants were not found inpossession of any contraband articles or they were not foundon the spot. Their involvement is only on the basis ofstatements of co-accused.11. Section 188 of the IPC deals with disobedience toorder duly promulgated by public servant. .....6/- Judgment20 apl1123.25612. Thus, disobedience in the present case pertains toNotification dated 18.7.2023 of the Food SafetyCommissioner.13. As far as offence under Section 328 of the IPC isconcerned, it speaks about causing hurt by means of poisonwith intent to commit an offence.14. Now, this issue is already pending before the Hon’bleApex Court, which is yet to be finalized. 15. As far as offence under 26(2)(i) of the Food Safety andStandard Act, 2006 is concerned, it contemplates that no foodbusiness operator shall himself or by any person on his behalfmanufacture, store, sell, or distribute any article of food. 16. Section 27(3)(e) of the Food Safety and Standard Act,2006 states that seller shall be liable under this Act for anyarticle of food which is received with him with knowledge ofbeing unsafe......7/- Judgment20 apl1123.25717. In the present case, as far as ingredients of offencesare concerned, admittedly, except the statements of the co-accused, there is nothing on record to disclose the same.18. The law relating to quashing of FIRs was explained bythe Hon’ble Apex Court in the case of State of Haryana andors vs. Bhajan Lal and ors, reported in 1992 Supplementary(1) SCC 335 wherein principles have been laid down whichare required to be considered while considering applicationsfor quashing of the FIRs, which read as under:“(a) where the allegations made in the FirstInformation Report or the complaint, even if theyare taken at their face value and accepted in theirentirety do not prima facie constitute any offenceor make out a case against the accused; (b) where the allegations in the First InformationReport and other materials, if any, accompanyingthe F.I.R. do not disclose a cognizable offence,justifying an investi- gation by police officersunder Section 156(1) of the Code except under.....8/- Judgment20 apl1123.258an order of a Magistrate within the purview ofSection 155(2) of the Code;(c) where the uncontroverted allegations made inthe FIR or 'complaint and the evidence collectedin support of the same do not disclose thecommission of any offence and make out a caseagainst the accused; (d) where the allegations in the FIR do notconstitute a cognizable offence but constituteonly a non-cognizable offence, no investigation ispermitted by a police officer without an order of aMagistrate as contemplated under Section 155(2)of the Code; (e) where the allegations made in the FIR orcomplaint are so absurd and inherentlyimprobable on the basis of which no prudentperson can ever reach a just conclusion that thereis sufficient ground for proceeding against theaccused; .....9/- Judgment20 apl1123.259(f) where there is an express legal bar engraftedin any of the provisions of the Code or theconcerned Act (under which a criminalproceeding is instituted) to the institution andcontinuance of the proceedings and/or wherethere is a specific provision in the Code or theconcerned Act, providing efficacious redress forthe grievance of the aggrieved party; (g) where a criminal proceeding is manifestlyattended with mala fide and/or where theproceeding is maliciously instituted with anulterior motive for wreaking vengeance on theaccused and with a view to spite him due toprivate and personal grudge”.19. In view of the above, the application deserves to beallowed. Accordingly, I proceed to pass following order:ORDER(1) The Criminal Application is allowed......10/- Judgment20 apl1123.2510(2) FIR in connection with Crime No.855/2023 registeredunder Sections 188, 272, 273, and 328 of the IPC and underSections 26(2)(i), 27(3)(e), 30(2),(a) and 59 of the FoodSafety and Standard Act, 2006 and consequent proceedingarising out of the same bearing Sessions Case No.52/2024pending before learned Additional Sessions Judge, Yavatmalare hereby quashed and set aside to the extent of theapplicants. Application stands disposed of. (URMILA JOSHI-PHALKE, J.)!! BrWankhede !!...../-