BABLU PUNWASI GUPTAversusSTATE OF MAHARASHTRA

                                                        24-IA1547-2026INAPEAL108-2026.DOC

                                                                                  Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                 INTERIM APPLICATION NO. 1547 OF 2026
                                                  IN
                                   CRIMINAL APPEAL NO. 108 OF 2026

                      Bablu Punwasi Gupta                                  ...Applicant-
                                                                               Appellant
                                       Versus
                      The State Of Maharashtra                           …Respondent

                      Mr. Dilip Mishra, a/w Ayaz Khan, Zehra Charania and Mallika
                            Sharma, for the Applicant - Appellant.
                      Mr. D. J. Haldankar, APP for the State – Respondent.
SANTOSH
SUBHASH               H. C. Mr. Suresh Chavan, ANC, Azad Maidan Unit, present.
KULKARNI
Digitally signed by
SANTOSH SUBHASH
                                                    CORAM:        N. J. JAMADAR, J.
KULKARNI
Date: 2026.09.04
15:36:18 +0530
                                                    DATED:        3rd SEPTEMBER, 2026

                      Order:-

                      1.   Heard the learned Counsel for the parties.

                      2.   This is an application for suspension of sentence and to

                      enlarge the Applicant on bail during the pendency of the appeal.

                      3.   By a judgment and order dated 23 rd December, 2022, the

                      learned Judge, Special Court (NDPS), Greater Bombay, was

                      persuaded to convict the Applicant for an offence punishable

                      under Section 21(c) of the Narcotic Drugs and Psychotropic

                      Substances Act, 1985 (“NDPS Act, 1985”) and sentence him to

                      suffer rigorous imprisonment for 10 years and pay a fine of

                      Rs. 1,00,000/-, with default stipulation.
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4.   In NDPS Special Case No. 725/2022, the gravamen of

indictment against the Applicant was that, pursuant to an

information, at about 23:40 hours on 31st December, 2021, the

Applicant    was     accosted     moving     under     suspicious

circumstances. The Applicant was carrying a blue bag with

yellow stripes. After complying with the mandate contained in

Section 50 of the NDPS Act, 1985, a personal search of the

Applicant was conducted in the presence of panch witnesses. In

the bag which the Applicant was carrying, 136 bottles of

Chlorpheniramine Maleate and Codeine Phosphate Syrup (100

ml each, branded as MORCERX, containing 10 ml of Codeine

Phosphate per 100 ml liquid) were recovered. The samples were

collected. The contraband substance was seized. Eventually, the

Applicant was sent for trial.

5.   In the trial, after appraisal of the evidence and material on

record, the learned Special Judge returned the finding of guilt

qua an offence punishable under Section 21(c) and acquitted the

Applicant of the offence punishable under Section 29 of the

NDPS Act, 1985. Sentence was imposed on the Applicant, as

indicated above.

6.   Mr. Mishra, the learned Counsel for the Applicant,

submitted that the Applicant has a strong case on merits. The

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bulk of the contraband was not produced before the Special

Court, nor there was any material to show that permission of

the Magistrate was obtained to destroy the bulk.         The search

and seizure is vitiated as the evidence of the panch witness

contradicts the testimony of the members of the raiding party.

Moreover, since the panch witness is a habitual witness, his

testimony does not command implicit reliance.

7.   Mr. Mishra further submitted that, in any event, the

Applicant has been in custody for four years and eight months.

The Applicant has undergone almost half of the substantive

sentence. Thus, the Applicant deserves to be enlarged on bail

during the pendency of the appeal, lest the right of appeal

would be rendered illusory if the entire sentence runs out and

the appeal is not finally heard.

8.   Mr. Haldankar, the learned APP for the State, strongly

opposed the prayer for suspension of sentence and to enlarge

the Applicant on bail. It was submitted that the Applicant was

found in possession of a commercial quantity of the contraband

substance. There was full compliance of the mandate contained

in Section 52A of the NDPS Act, 1985. The learned Special

Judge has correctly appreciated the evidence and returned the

finding of guilt. Therefore, at this stage, the endeavor of the

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Applicant to pick loopholes in the prosecution case cannot be

countenanced.

9.    The learned APP is justified in canvassing a submission

that a meticulous evaluation of evidence is impermissible at this

stage. The Appellate Court cannot embark upon an exercise of

evaluating   the   evidence   and     material   to   pick   lacunae,

shortcomings, and loopholes in the prosecution case. The

Appellate Court has to see whether the appellant has a fair

chance of success in the appeal.

10.   The submissions canvassed by Mr. Mishra touch upon the

merits of the matter. The question whether the learned Special

Judge has correctly evaluated the evidence of the panch

witness, is a matter which can be legitimately considered at the

stage of final hearing of the appeal. It is not a case that there is

infraction of mandatory statutory requirement which renders

the conviction of the Applicant suspect.

11.   The submissions of Mr. Mishra premised on the long

period of incarceration, however, deserves consideration. The

Applicant has been in custody since the date of his arrest i.e. 1 st

January, 2022. Out of the 10 years sentence, the Applicant has

already undergone four years and eight months. Having regard

to the large pendency of the cases before this Court, it is

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extremely unlikely that this appeal can be taken up for hearing

and final disposal in the immediate future.

12.   This long period of incarceration is also required to be

appreciated in light of the situation in life of the applicant noted

by the learned Special Judge while determining the quantum of

sentence. The learned Special Judge has noted that there were

metigating circumstances. The Applicant appeared to be a first

offender. He was 29 years of age. The applicant had no criminal

antecedents. The entire family of the applicant was dependent

on him.

13.   If the aforesaid personal attributes of the Applicant are

considered in conjunction with almost half of the sentence

already undergone by the applicant, in the view of this Court,

notwithstanding the interdict contained in Section 37 of the

NDPS Act, 1985, the exercise of discretion in favour of the

Applicant may be justifiable.

14.   A profitable reference, in this context, can be made to a

judgment of the Supreme Court in the case of Narcotic Control

Bureau vs. Lakhwinder Singh1, wherein the Supreme Court

enunciated two principles. First, it is not peremptory that the

accused must have undergone half of the substantive sentence


1     2025 SCC Online Sc 366.
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before he can be released on bail pending an appeal. Second,

notwithstanding the bar contained in Section 37 of the NDPS

Act, 1985, if the accused has undergone a substantial part of

the substantive sentence, the Appellate Court can exercise its

discretion to release the accused on bail. The observations of

the Supreme Court in paragraphs 5, 6 and 7 are instructive and

hence extracted below:

      “5. …... Therefore, in our view, if a case is made out for
      the grant of suspension of sentence and/or bail in deserving
      cases on merits, the Court is not powerless to grant relief of
      suspension of sentence and bail pending an appeal, even if
      an accused has not undergone half of the sentence. There
      cannot be a rule of thumb that a convict cannot be released
      on bail pending an appeal against conviction unless he has
      undergone half of substantive sentence.
      6.    In the case of fixed-term sentences, if the Courts start
      adopting a rigid approach, in a large number of cases, till
      the appeal reaches the stage of the final hearing, the
      accused would undergo the entire sentence. This will be a
      violation of the rights of the accused under Article 21 of the
      Constitution. Moreover, it will defeat the right of appeal.
      7.     At this stage, the learned ASG appearing for the
      petitioner submitted that the power of the Court was
      constrained by Section 37 of the NDPS Act, which is
      applicable even at the stage of an appeal. He relies upon a
      decision of this Court in the case of Dadu vs. State of
      Maharashtra (2000) 8 SCC 437. There is no dispute about
      the fact that the Appellate Court is bound by constraints of
      Section 37 of the NDPS Act while considering the prayer for
      the grant of bail during the pendency of an appeal. However,
      if, in the facts of the case, an accused has undergone a
      substantial part of the substantive sentence and,
      considering the pendency of criminal appeals, his appeal is
      not likely to be heard before the accused undergoes the
      entire sentence, the Appellate Court can exercise the power
      of releasing the accused on bail pending the appeal. If the
      relief of bail is denied in such a factual situation only on the
      grounds of Section 37 of the NDPS Act, it will amount to the
      violation of the rights of the accused under Article 21 of the
      Constitution of India.”



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15.     Applying the aforesaid principles to the facts of the case at

hand, in the considered view of this Court, the substantive

sentence deserves to be suspended, and the Applicant enlarged

on bail. The Applicant has already undergone almost half of the

substantive sentence, and the Applicant is relatively young, and

a first-time offender without any criminal antecedents. The

Court may thus have an assurance that the Applicant may not

indulge in similar offences, if enlarged on bail.

16.     Hence, the following order:

                            :ORDER:

(i)     The application stands allowed.

(ii)     The substantive sentence imposed by the learned Special

         Judge in NDPS Special Case No. 725/2022 arising out of

         CR No.2/2022 registered with Anti Narcotic Cell, Azad

         Maidan Unit, Mumbai, stands suspended till the final

         disposal of the appeal.


(iii)    The applicant, Bablu Punwasi Gupta, be enlarged on bail

         on furnishing a PR Bond in the sum of Rs.50,000/- with

         one or two sureties in the like amount to the satisfaction

         of the learned Special Judge.




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(iv)    The applicant shall mark his presence at the Anti

        Narcotic Cell, Azad Maidan Unit, on the first Monday of

        October and April of every year, till the disposal of the

        appeal.


(v)     The applicant shall furnish his residential address and

        cell phone number to the Investigating Officer and keep

        him updated in case of any change therein.


(vi)    The applicant shall not leave country without prior

        permission of this Court.


(vii)   The applicant shall attend the proceedings in this appeal,

        as and when directed.



                                            [N. J. JAMADAR, J.]




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