The Bombay High Court has granted bail to an accused pending final determination by the Supreme Court on whether the sale of Pan Masala constitutes an offence under the Bharatiya Nyaya Sanhita, 2023. This decision underscores the principle that prolonged incarceration cannot be justified when the very applicability of the charged provision remains legally unsettled.
Background & Facts
The Dispute
The applicant, Adnan Siraj Ahamad Shaikh, was arrested in connection with C.R. No. 20 of 2026 registered at Mira Road Police Station for alleged offences under Sections 123, 223, 272, 275 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS), along with provisions of the Food Safety and Standards Act, 2006 and the Prohibition of Electronic Cigarettes Act, 2019. The core allegation involves the sale and storage of Pan Masala packets, which the prosecution contends violates Section 123 of the BNS, the successor to Section 328 of the IPC.
Procedural History
- 15 January 2026: First information report registered against the applicant
- Late January 2026: Applicant denied bail before the Additional Sessions Judge, Thane
- 20 February 2026: Bail application filed before the Bombay High Court
- Pending: A similar legal question regarding the scope of Section 123 BNS is under consideration by the Supreme Court
Relief Sought
The applicant sought immediate release on bail, citing his one-month incarceration, the pendency of a decisive Supreme Court matter on the legal interpretation of the charged provision, and the absence of a charge sheet.
The Legal Issue
The central question was whether pre-trial detention can be sustained when the very applicability of the statutory provision under which the accused is charged is under active judicial review by the Supreme Court, and no charge sheet has been filed.
Arguments Presented
For the Appellant
Mr. Abhinav Utekar, counsel for the applicant, argued that the Bombay High Court had previously held that mere possession or sale of Pan Masala does not attract Section 328 IPC, and by extension, Section 123 BNS. He emphasized that the Supreme Court is currently examining this precise legal ambiguity. He submitted that continued incarceration pending a definitive ruling would violate the right to liberty under Article 21, especially in the absence of a charge sheet and with no evidence of flight risk or tampering.
For the Respondent
The State, represented by Mr. Mayur Sonavane, contended that the applicant has prior antecedents in similar offences, suggesting a pattern of conduct. However, the State did not oppose bail outright and acknowledged the pendency of the Supreme Court matter, refraining from asserting strong grounds for denial.
The Court's Analysis
The Court acknowledged that the legal interpretation of Section 123 BNS in relation to Pan Masala remains unresolved and is the subject of pending adjudication before the Supreme Court. It noted that the charge sheet had not yet been filed, indicating the investigation was incomplete and no formal evidentiary foundation had been established. The Court emphasized that pre-trial detention must be exceptional, particularly when the legal basis for prosecution is uncertain.
"The issue pending before the Supreme Court raises a substantial question of law which, if resolved in the applicant’s favour, could render the entire prosecution unsustainable. To keep him incarcerated pending that determination would be to presume guilt before adjudication."
The Court further observed that the applicant had no history of absconding, and the conditions proposed were sufficient to ensure his presence during trial. It held that the balance of convenience and the principle of presumption of innocence tilted decisively in favour of bail.
The Verdict
The applicant won. The Bombay High Court held that pre-trial detention cannot be justified when the legal basis for prosecution is under active Supreme Court review and no charge sheet has been filed. The applicant was granted bail subject to specific conditions, including monthly police reporting and surrender of passport.
What This Means For Similar Cases
Bail Is Warranted When Legal Validity of Charge Is Uncertain
- Practitioners must raise the pendency of a Supreme Court or High Court ruling on the interpretation of a charged provision as a decisive factor in bail applications
- Courts must not treat mere allegations as sufficient grounds for detention when the underlying law is in flux
- The absence of a charge sheet strengthens the case for liberty pending clarification
Pre-Trial Detention Requires Concrete Risk, Not Speculative Harm
- Antecedents alone cannot override the principle of presumption of innocence when the legal foundation of the charge is questionable
- Courts must distinguish between habitual offenders and cases where the very nature of the offence is legally contested
- Conditions such as monthly reporting and passport surrender are adequate safeguards without requiring monetary bonds beyond reasonable limits
Judicial Restraint in Interim Orders
- Courts must avoid making observations that could prejudice the trial court’s independent assessment
- The Bombay High Court’s explicit disclaimer that its order is "prima facie" and "confined to this application" sets a standard for interim bail orders
- Practitioners should cite this judgment to resist attempts by trial courts to treat interim bail orders as de facto rulings on merits
