Bombay High Court
AFFAK AASIF SAYYEDversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
- Bench
- R M JOSHI
Holding
The Court held that the prosecution complied with Section 50, the search by the Havildar was lawful, and therefore the applications for bail and suspension of sentence were dismissed.
Summary
The appellants, Affak Aasif Sayyed and Faisal Shafikul Rehman Sayyed, were convicted under the NDPS Act for possession of mephedrone and sentenced to five years' imprisonment with a fine. They filed interim applications seeking suspension of their sentences and enlargement of bail pending appeal, arguing that the search of their persons violated Sections 42 and 50 of the NDPS Act because it was conducted by a police Havildar without proper magistrate or gazetted officer presence and without adequate oral/intimation of their rights. The State contended that the search was lawful, that written consent was obtained, and that the prosecution evidence, including the CA report, was sufficient. The Court examined the testimony of the police Havildar, held that oral communication of the right to be searched satisfies Section 50 per Supreme Court precedent, and found no breach of Section 42. Concluding that the evidence against the appellants was prima facie sufficient and the offence serious, the Court dismissed the interim applications, denying bail and suspension of sentence.
Issues considered
- Whether the search of the accused complied with Section 50 of the NDPS Act requiring communication of the right to be searched in the presence of a magistrate or gazetted officer.
- Whether a police Havildar is authorized to conduct a personal search under the NDPS Act.
- Whether the Chemical Analyzer report can be relied upon without independent verification.
- Whether bail or suspension of sentence can be granted to convicted persons serving a fixed-term sentence pending appeal.
Legislation cited
- Narcotic Drugs and Psychotropic Substances Act — s. 42, 50
Subjects
- NDPS Act
- bail
- suspension of sentence
- search and seizure
- Section 50
- Section 42
- mephedrone
- fixed-term imprisonment
- appellate jurisdiction
Judgment
904-IA-3953-2025-IN-APEAL-1020-2025+1.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3953 OF 2025
IN
CRIMINAL APPEAL NO. 1033 OF 2025
Faisal Shafikul Rehman Sayyed ...Applicant
IN THE MATTER BETWEEN
Faisal Shafikul Rehman Sayyed …Appellant/
Org. Accused No. 3
Versus
The State of Maharashtra & Anr …Respondents
WITH
SHEPHALI
SANJAY INTERIM APPLICATION NO. 3958 OF 2025
MORMARE IN
Digitally signed by
SHEPHALI
CRIMINAL APPEAL NO. 1020 OF 2025
SANJAY
MORMARE
Date: 2026.02.24
10:02:16 +0530 Affak Aasif Sayyed ...Applicant
IN THE MATTER BETWEEN
Affak Aasif Sayyed …Appellant/
Org. Accused No. 1
Versus
The State of Maharashtra & Anr …Respondents
Mr Anil Lalla, with Yash Pulekar & Devang Rawal, for the
Applicant/Appellant in both matters.
Mr HJ Dedhia, APP, for Respondent No. 1-State.
Mr Vilas Kute, API, AEC MBVV, present.
CORAM: R. M. JOSHI, J.
RESERVED ON: 17TH FEBRUARY 2026
PRONOUNCED ON: 20TH FEBRUARY 2026
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ORDER:
1. These Interim Applications are for suspension of sentences
and for enlargement on bail of the Applicants, Affak Aasif Sayyed
(“Affak”), Accused No. 1 and Faisal Shafikul Rehman Sayyed
(“Faisal”), Accused No. 3 in connection with Special Case (NDPS)
No. 1 of 2023, whereby they were convicted and sentenced to
suffer five years imprisonment with fine of Rs. 50,000/- with
default sentence.
2. By consent of both sides, these Applications are heard and
decided together since they involved similar facts and law.
3. Learned counsel for the Appellants submits that the
appellants are handed over with fixed term sentence and,
therefore, the Court is required to liberally consider their Bail
Application as the Appeals are not likely to be heard in short time
and, consequently, would become infructuous. On merit, it is his
submission that here in this case, there is non-compliance of
Sections 50 and 42 of NDPS Act. He took exception to the
authority of a Havildar to take personal search of accused.
According to him, the contraband involved in the case is not of
commercial quantity. He takes exception to the impugned
Judgment and Order by contending that no evidence indicating
the accused been apprised of their right of being searched in
presence of a Magistrate or Gazetted Officer and in view of the
same, there is non-compliance of Section 50 of the NDPS Act. He
drew attention of the Court to the evidence on record and
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submitted that the person who conducted search had no authority
in law to do so. In respect of Accused No. 3, Faisal, evidence is
read over in order to submit that though there is a statement
made with regard to the written notice issued to him, however,
there is no evidence showing oral intimation about the right of the
accused to get search in presence of the Magistrate. In this regard,
he placed reliance on the Judgment of the Hon’ble Supreme Court
in case of Ranjan Kumar Chadha vs. State of Himachal Pradesh 1.
He referred to paragraphs 63 and 64 of the said Judgment to
buttress his submission. It is his further submission that the CA
Report is not proved by examining the Chemical Analyser and as
such the CA Report could not be relied upon to record conviction
against them. Lastly, it is submitted that there is no evidence
showing intimating sufficient quantity of contraband in order to
analyse the same, so also, there is no evidence that the samples
which were drawn under the Inventory Panchnama before the
Judicial Magistrate were only the one sent to CA for examination.
Thus, according to him, this is a fit case for enlargement of the
Appellants on bail. It is claimed that the Appellants have no
criminal history and that they are not likely to flee from justice.
He places reliance on the following other Judgments:
(a) Vijaysinh Chandubha Jadeja vs. State of Gujarat ,2
(b) Mohinder Kumar vs. State of Panaji, Goa,3
1 Criminal Appeal Nos. 2239-2240 of 2011 (Apex Court)
2 Criminal Appeal No. 943 of 2005 (Apex Court)
3 Criminal Appeal No. 399 of 1992
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(c) Mohd. Hussain Babamiyan Ramzan vs. State of
Maharashtra,4
(d) Shiv Kumar Ashok Mishra vs. Special Judge of
N.D.P.S. Court, Mapusa-Goa (State),5
(e) Sushant Sambhaji Rasal vs. State of Maharashtra,6
4. Learned APP opposed the said contention by submitting that
the Police Head Constable and Havildar of the equivalent rant and
as such it cannot be said that the search conducted by the Police
Havildar is illegal. It is submitted that the evidence on record
fairly indicted about the accused being informed their right of
being searched in presence of the Magistrate or Gazetted Officer
and since it was refused by the accused in writing, there is due
compliance of Section 50 of the NDPS Act. In sofar as Section 42
of the NDPS Act is concerned, it is his submission that the
evidence on record sufficiently demonstrates the said compliance.
He opposes the grant of bail to the Appellants on the ground that
the offence is serious in nature and the evidence on record proves
the charge against them.
5. No doubt the Court is required to consider the case of the
convict liberally in the event convict is sentenced to suffer
imprisonment for a fixed term. However, at the same time, the law
on the point of suspension of sentence enlargement of the convict
is fairly settled to say that the Appellant has to make out a case of
4 Criminal Appeal No.445 of 1992 with Criminal Appeal No. 438 of 1992
(Bombay High Court).
5 Criminal Appeal No. 22 of 1994 (Bombay High Court).
6 Criminal Bail Application No. 1760 of 2021 (Bombay High Court).
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fair chance of success in the Appeal and only on making out such
case, substantive sentence could be suspended.
6. Perusal of the record prima facie indicates that the
prosecution examined 11 witnesses for the purpose of proving the
seizure of contraband articles, i.e., Mephedrone from accused
persons. PW-1, Police Havildar, Yadav, who took personal search
of the accused, has specifically deposed about accused being
apprised of his right of search to be taken in presence of the
Magistrate or Gazetted Officer. He further states that the accused
in writing has allowed the search to be taken and, therefore, he
was searched and contraband was found. Similar is the case in
respect of Accused No. 3, Faisal. Perusal of the cross-examination
of the witnesses does not indicate that any exception was taken to
the said testimony of the witness with regard to accused being
apprised of their right to get search in presence of the Magistrate
or Gazetted Officer.
7. It would be relevant to take note of the Judgment of the
Hon’ble Supreme Court in case of Ranjan Kumar Chadha (Supra),
wherein the Hon’ble Supreme Court while dealing with the said
issue has held that “ Before conducting a search, it must be
communicated in clear terms through it need not be in writing
and is permissible to convey orally, that the suspect has a right of
being searched by a Gazetted Officer or Magistrate.”. The said
observations of the Hon’ble Supreme Court clearly indicate that
the communication need not be in writing and it is permissible to
convey orally. Here in this case, the communication is in writing as
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it could be seen from the oral evidence as well as the evidence of
panchnama conducted at the time of seizure of the contraband
articles in the personal search of the accused persons. Thus, the
said Judgment in fact supports the case of the prosecution rather
than the defence sought to be made out by the accused.
8. It is argued that there is raid conducted in the premises
after sunset and, therefore, the entire exercise done by the
investigating agency is bad in law. Perusal of the evidence led by
the prosecution indicates that at the first instance the contraband
articles were seized from the personal search from the Accused
No. 1, Affak. Thereafter, the said search led to Accused No. 2 and,
finally, to Accused No. 3. When it came to the knowledge of the
agency with regard to the material information about contraband
articles being obtained from Accused No. 3, Faisal, it was justified
for the agency to immediately take action in this regard. It is
pertinent to note that the information received to co-accused gets
fortified with seizure of contraband articles in the personal search
of Accused No. 3. At this stage, at least, it cannot be said that the
action of the investigating agency with regard to the conducting
search of Accused No. 3 is illegal.
9. As far as the present stage of the proceeding is concerned,
this Court is not expected to go into the details of the evidence,
which could be done only at the time of hearing of the Appeal
finally. Suffice it to say that prima facie consideration of evidence
on record, shows that there is sufficient evidence in order to
uphold the Judgment and Order of conviction. In view of nature
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of offence and the evidence appearing against the
Applicants/Appellants, this is not the fit case for grant of bail.
10. The Applications stand dismissed.
11. It is clarified that the above observations are made prima
facie and for purpose of determination of the present Appeals and
the same shall not bind parties at the time of hearing and decision
of Appeals on merit.
12. Appeal stands expedited.
(R. M. JOSHI, J.)
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