Bombay High Court
Najir Ahmad Mohamad Hajrat Shaikh ... vs The State Of Maharashtra on 31 March, 2021
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.405 OF 2021
IN
CRIMINAL APPEAL NO.493 OF 2020
Nazir Ahmad Mohamad Hajrat Shaikh & Anr... Applicants
Vs.
The State of Maharashtra .. Respondent
...
Mr.Advait Tamhankar i/b Mr.Taraq K. Sayed for the
Applicants.
Mr.Y.Y.Dabake, A.P.P. for the State.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 31ST MARCH, 2021.
P.C:-
1. The appeal fled by the appellant is already admitted.
2. This is an application seeking stay of the judgment and
order of conviction passed by the Special Court in NDPS
Special Case No.23 of 2009 and praying for suspension of
sentence. A categorical statement is made that the applicants
were on bail, pending the trial and this statement is not
disputed by the learned APP.
M.M.Salgaonkar
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3. The learned counsel for the applicants has taken me
through the impugned judgment and submitted that though
the report of the Chemical Analyser has been the basis of the
conviction, the Chemical Analyser has not stepped into the
witness box and has not been examined. The fact of non-
examination of the Chemical Analyser and mere reliance upon
the report of the Forensic Science Laboratory, Pune, which is
not refective of the method adopted for analysis of the samples
and the absence of any person to depose as to what was the
method that was adopted to analyse the sample, is the core
issue, which is required to be tested in the appeal.
4. The applicants have relied upon the decision of the
learned Single Judge of this Court in case of Mirza Qumer
Hyder Vs. Mr.A.K.Thakker & Anr.1 and in case of Bhanudas
Vasantrao More Vs.Mr.A.K.Thakker & Anr. 2. Reliance is also
placed reliance on the order passed by the learned Single
Judge of the Gujarat High Court in the case of Suleman Usman
Memon Vs. The State of Gujarat3, which has been relied upon
in the case of Mirza Qumer Hyder (supra). This line of
judgment, according to the learned counsel, reiterate the
importance of examining the Chemical Analyser and
particularly, discusses the position of the said evidence and its
evidentiary value in terms of the Indian Evidence Act and in
particular, Sections 45 and 51.
5. The learned APP has placed reliance on a decision of the
learned Single Judge of this Court in case of Pradeep
1 Cri. Appeal No.554 of 2006 decided on 31/01/2018
2 Cri. Appeal No.555 of 2006 decided on 31/01/2018
3 AIR 1961 Guj 120
M.M.Salgaonkar
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Ramniklal Bhat Vs. The State of Maharashtra 4 and he would
submit that since particular point or objection about non-
examination of the Chemical Analyser was not taken at the
time of trial, the trial court had no opportunity to deal with the
said issue and for the frst time, this has been raised in appeal.
Prima facie, I do not fnd any merit in the submission since
Section 386 of the Cr.P.C. empowers the appellate court to re-
appreciate the proseuction evidence. This, however, has to be
considered at the time of fnal hearing of the appeal. On
consideration of the fact that the applicants were already on
bail, pending the trial, the present application is allowed in
terms of prayer clauses (a) and (b).
6. The impugned sentence passed in NDPS Special Case
No.23 of 2009 against the applicants is suspended. The
applicants are directed to be released on bail on the same
terms and conditions as they were, pending trial, with fresh
bond and sureties.
SMT. BHARATI DANGRE, J.
4 Criminal Appeal No.337 of 2000 decided on 12/09/2006
M.M.Salgaonkar
