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 CRIMINAL APPEAL NO. 340 OF 2026 WITH INTERIM APPLICATION NO. 2091 OF 2026 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. 1/7 SANTOSH SUBHASH KULKARNI Digitally signed by SANTOSH SUBHASH KULKARNI Date: 2026.08.28 17:37:51 +0530 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. 2/7 12-APEAL338-2026+.DOC 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. 3/7 12-APEAL338-2026+.DOC 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 4/7 12-APEAL338-2026+.DOC 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, 5/7 12-APEAL338-2026+.DOC 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: : O R D E R : (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. 6/7 12-APEAL338-2026+.DOC (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.] 7/7