Bombay High Court
AFSAR ABU TALIB KHANversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The High Court allowed the interim applications, suspended the substantive sentences pending appeal, and granted bail to the appellants.
Summary
Parvez Barkatali Ansari and Afsar Abu Talib Khan were convicted by a Special Judge under Section 20(b)(ii)(B) of the NDPS Act for possession of charas and sentenced to five years' rigorous imprisonment and a fine. They filed interim applications seeking suspension of the sentence, arguing non‑compliance with Section 50 (right to be searched before a magistrate or gazetted officer) and Section 52A of the NDPS Act. The High Court examined the trial evidence and noted that the witnesses did not clearly state that the appellants were informed of their right to be searched, indicating a possible breach of Section 50, and also observed non‑compliance with Section 52A. Considering the fixed‑term nature of the sentence, the lack of statutory restriction on suspension, the pendency of the appeals, and the appellants' clean antecedents, the Court exercised its discretion in their favour. The applications were allowed, the sentences were suspended pending final disposal of the appeals, and bail was granted on condition of a bond and surety.
Issues considered
- Whether the trial court complied with the mandatory provisions of Section 50 of the NDPS Act regarding informing the accused of their right to be searched before a magistrate or gazetted officer.
- Whether the provisions of Section 52A of the NDPS Act, which provide certain benefits to the accused, were complied with.
- Whether a sentence of fixed term imprisonment under the NDPS Act can be suspended pending appeal.
- Whether bail can be granted pending the final disposal of the appeal.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act, 1985 — s. 20(b)(ii)(B), 37, 50, 52A
Subjects
- NDPS Act
- Section 50
- Section 52A
- suspension of sentence
- bail
- possession of charas
- fixed term imprisonment
- procedural compliance
- appeal
Judgment
12-APEAL338-2026+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 338 OF 2026
WITH
INTERIM APPLICATION NO. 2087 OF 2026
Parvez Barkatali Ansari ...Appellant-
Applicant
Versus
The State Of Maharashtra …Respondent
WITH
SANTOSH
CRIMINAL APPEAL NO. 340 OF 2026
SUBHASH WITH
KULKARNI
INTERIM APPLICATION NO. 2091 OF 2026
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.08.28
17:37:51 +0530
Afsar Abu Talib Khan ...Appellant-
Applicant
Versus
The State Of Maharashtra …Respondent
Mr. Ayaz Khan, a/w Zehra Charania and Mallika Sharma, for
the Appellant – Applicant.
Mr. D. J. Haldankar, APP for the State.
CORAM: N. J. JAMADAR, J.
DATED: 27th AUGUST, 2026
Order:-
Criminal Appeal/338/2026 and Criminal Appeal/340/2026
1. Heard.
2. Admit.
3. Call R&P.
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12-APEAL338-2026+.DOC
IA/2087/2026 and IA/2091/2026
4. These applications are preferred by the appellants in the
respective appeals preferred against the judgment and order
dated 2nd March, 2026 passed by the learned Special Judge in
NDPS Special Case No. 32 of 2012, wbereby and whereunder
Parvez Ansari (A1), the applicant in IA/2087/2026, and Afsar
Khan (A2), the applicant in IA/2091/2026, have been convicted
for an offence punishable under Section 20(b)(ii)(B) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS
Act, 1985”), and are sentenced to suffer rigorous imprisonment
for a term of five years and pay a fine of Rs. 50,000/- each, with
default stipulation.
5. The prosecution case was that, pursuant to an intimation
a trap was laid at Marol Naka Junction, Andheri. The applicants
(A1 and A2) reached the specified spot and were found moving
in suspicious circumstances. The applicants were accosted. In
their search, after following the due process, 240 grams of
charas was found in the possession of Parvez (A1) and 135
grams of charas was found in possession of Afsar (A2). The
contraband substance was seized and the samples were
collected.
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6. After appraisal of the evidence adduced by the
prosecution, the learned Special Judge was persuaded to return
a finding that the guilt of the applicants (A1 and A2) was proved
beyond reasonable doubt and, thus, the applicants were
convicted and sentenced, as indicated above.
7. Mr. Ayaz Khan, the learned Counsel for the applicants,
would submit that, the learned Special Judge has committed a
manifest error in convicting the applicants as a clear case of
non-compliance with the mandate contained in Section 50 of
the NDPS Act, 1985 was made out. Inviting the attention of the
Court to the deposition of Dilip Ghag (PW-1) and Mr. Yahaya
Katleriwala (PW-2), the panch witness, Mr. Khan submitted that
both witnesses have not categorically stated that the applicants
were apprised of their right to be searched in the presence of the
Magistrate or Gazetted Officer. The learned Special Judge was in
error in placing reliance on the notices purportedly served on
the applicants reflecting the purported compliance of the
mandate contained in Section 50 of the NDPS Act, 1985.
8. To buttress the aforesaid submission, Mr. Khan placed
reliance on a judgment of a Division Bench of this Court in the
case of Nilkanth Mahadeo Chandekar vs. State of Maharashtra1.
1 2000(1) MhLJ 64.
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9. Secondly, Mr. Khan would urge, there was a complete non-
compliance of the provisions contained in Section 52A of the
NDPS Act, 1985, the benefit of which must enure for the
applicants.
10. Mr. Haldankar, the learned APP for the State, countered
the submissions on behalf of the applicants. Placing reliance on
the deposition of the abovenamed and other witnesses, Mr.
Haldankar would submit that, the applicants were found in
conscious possession of contraband substance and failed to
discharge the presumption of culpable mental state. In the face
of the evidence on record, prima facie, there is no legal infirmity
in the impugned judgment and order. Thus, the sentence cannot
be suspended.
11. At the outset, it is necessary to note that since the
applicants were allegedly found in possession of an intermediate
quantity of charas, the interdict contained in Section 37 of the
NDPS Act, 1985 does not come into play. As noted above, the
applicants have been sentenced to suffer rigorous imprisonment
for a term of five years. Thus, it is a fixed term sentence.
12. The legal position is well-settled that, when a convicted
person is sentenced to a fixed period of sentence, the prayer for
suspension of sentence is required to be considered by the
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Appellate Court rather liberally unless there are circumstances
which render the suspension of sentence unjustifiable. In the
case at hand, since there are no statutory restrictions in the
matter of suspension of sentence, as Section 37 of the NDPS
Act, 1985 has no play, the prayer for suspension of sentence
deserves to be appreciated on the touchstone of the general
principles applicable to a fixed term sentence.
13. I am conscious that, at this stage, this Court is not
supposed to delve into the merits of the matter by resorting to a
process of meticulous evaluation of the evidence. The evidence
of the prosecution witnesses, especially Dilip Ghag (PW-1) and
Mr. Yahaya Katleriwala (PW-2), however, does indicate that the
aspect of scrupulous compliance of the mandate contained in
Section 50 of the NDPS Act, 1985 is debatable. Prima facie, the
witnesses have not, in terms, deposed that the applicants were
apprised of their ‘right’ to be searched before the Magistrate or
Gazetted Officer.
14. Non-compliance of Section 52A also appears rather
indisputable, though that cannot be the sole ground for release
of the applicants on bail.
15. What weighs with this Court is the unlikelihood of these
appeals being heard and decided within a reasonable period,
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having regard to the large pendency of cases before this Court.
The applicants have undergone a sentence of almost five
months. It is extremely unlikely that these appeals can be heard
before the substantive sentence runs out. Moreover, the Court
was not informed that there are no antecedents of the
applicants.
16. In the totality of the circumstances, this Court considers it
appropriate to exercise the discretion in favour of the applicants.
17. Hence, the following order:
:ORDER:
(i) The applications stand allowed.
(ii) The substantive sentence of imprisonment imposed by
the learned Special Judge in NDPS Special Case
No.32/2012 arising out of CR No.33/2011, registered with
MIDC Police Station, Mumbai, qua the applicants stands
suspended till the final disposal of the appeal.
(iii) The applicants, Parvez Barkatali Ansari (A1) and Afsar
Abu Talib Khan (A2), be enlarged on bail on furnishing a
PR Bond in the sum of Rs.25,000/- each, and a surety in
the like amount to the satisfaction of the learned Special
Judge.
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(iv) The applicants shall mark their presence at MIDC Police
Station, Mumbai, on the first Monday of September and
March every year, till the final disposal of the appeal.
(v) The applicants shall not indulge in any activity of the
similar nature which led to the prosecution and
conviction of the applicants
(vi) The applicants shall regularly attend the proceedings in
these appeals.
[N. J. JAMADAR, J.]
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