The Bombay High Court has granted bail to an accused pending final determination by the Supreme Court on whether mere possession and sale of Pan Masala constitutes an offence under the Bharatiya Nyaya Sanhita, 2023. This decision underscores the principle that prolonged pre-trial incarceration cannot be justified when the very legal basis of the charge remains unsettled at the highest judicial level.
Background & Facts
The Dispute
The applicant, Junaid Ali Mehraj Ali Rayeeni, was arrested in connection with C.R. No. 20 of 2026 registered at Mira Road Police Station for alleged violations under Section 123 of the Bharatiya Nyaya Sanhita (BNS), which replaces Section 328 of the Indian Penal Code. The prosecution alleges involvement in the storage, transportation, and sale of Pan Masala packets containing harmful substances. The charges also include violations of the Food Safety and Standards Act, 2006, and the Prohibition of Electronic Cigarettes Act, 2019.
Procedural History
- 15 January 2026: First information report registered against the applicant
- Late January 2026: Applicant applied for bail before the Additional Sessions Judge, Thane
- 29 January 2026: Bail application rejected by the Sessions Judge
- 11 February 2026: Bail application filed before the Bombay High Court
Relief Sought
The applicant sought immediate release on bail, citing one month of incarceration, the pendency of a similar legal question before the Supreme Court, and the absence of a charge sheet.
The Legal Issue
The central question was whether pre-trial detention can be sustained when the very foundation of the offence - whether possession and sale of Pan Masala attracts Section 123 of the BNS - is under active consideration by the Supreme Court and no charge sheet has been filed.
Arguments Presented
For the Applicant
Learned counsel for the applicant relied on the Bombay High Court’s prior observation that mere possession or sale of Pan Masala does not, by itself, constitute an offence under Section 328 IPC, now Section 123 BNS. He emphasized that the Supreme Court is currently examining this precise legal ambiguity and that continued incarceration without a charge sheet or trial date violates the right to personal liberty under Article 21. He further noted the applicant’s clean record apart from the current allegations.
For the Respondent
The State, through the Additional Public Prosecutor, contended that the applicant has prior antecedents in similar offences and that the nature of the alleged violations - pertaining to food safety and prohibited substances - warrants continued custody. However, the State did not dispute that the charge sheet had not yet been filed.
The Court's Analysis
The Court acknowledged that the legal interpretation of Section 123 BNS in the context of Pan Masala is not settled and is currently under review by the Supreme Court. It noted that the applicant had been in custody for over a month without a charge sheet being filed, a delay that raises concerns under Article 21 and the principles laid down in Arnesh Kumar v. State of Bihar. The Court observed that the absence of a charge sheet indicates the investigation is still in progress and that the gravity of the offence cannot be assessed without clarity on the legal threshold.
"The issue pending before the Supreme Court is of substantial legal importance and affects the very validity of the charge framed against the applicant. Prolonged incarceration in such a context cannot be countenanced."
The Court further held that the applicant’s cooperation with the investigation, lack of flight risk, and the absence of any allegation of violence or public endangerment weighed in favor of bail. The Court emphasized that its observations were strictly prima facie and would not influence the trial court’s independent assessment.
The Verdict
The applicant won. The Bombay High Court held that pre-trial detention cannot be justified when the legal basis of the charge is unsettled and no charge sheet has been filed. The applicant was granted bail subject to strict conditions, including monthly police reporting and surrender of passport.
What This Means For Similar Cases
Bail Cannot Be Denied Solely on Alleged Nature of Offence
- Practitioners must argue that Section 123 BNS requires proof of intent to endanger public health, not mere commercial sale
- Courts must distinguish between regulatory violations and criminal offences under BNS
- Absence of a charge sheet should trigger heightened scrutiny of detention
Legal Uncertainty Must Inform Bail Decisions
- When a legal question is pending before the Supreme Court on the scope of a criminal provision, courts must weigh the risk of wrongful incarceration
- Pre-trial detention should not be used as a punitive measure while legal interpretation remains unresolved
- The prima facie nature of bail orders must be clearly stated to avoid prejudicing trial outcomes
Procedural Delay Undermines Legitimacy of Custody
- Failure to file a charge sheet within a reasonable time weakens the State’s case for continued custody
- Courts should treat prolonged investigation without formal charges as a factor favoring release
- Bail conditions must be proportionate and not punitive, even in cases involving public health laws
