Bombay High Court
Abdul Karim Noor Mohd. Shaikh vs State Of Maharashtra on 7 November, 2023
Bench: Nitin B. Suryawanshi
2023:BHC-AS:34017
sg 902.ia2351-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.2351 OF 2022
IN
CRIMINAL APPEAL NO.644 OF 2019
Abdul Karim Noor Mohd. Shaikh ...Applicant
vs.
The State of Maharashtra ...Respondent
.....
Ms. Zehra Charania, for Applicant.
Mr. A.R. Patil, APP, for Respondent State.
.....
CORAM : NITIN B. SURYAWANSHI, J.
DATED : 7th NOVEMBER 2023
P. C. :
This is an application for suspension of sentence and grant
of bail during the pendency of criminal appeal preferred by Applicant
challenging the judgment and conviction.
2. Applicant is convicted by Additional Sessions Judge,
Greater Bombay in NDPS Case No.220 of 2016 under Section 235(2)
of the Code of Criminal Procedure and under Section 8(c) read with
22(c) of the Narcotic Drugs and Psychotropic Substances Act (NDPS
Act) and thereby sentenced to suffer rigorous imprisonment for 10
(ten) years and to pay fine of Rs.1,00,000/- in default in payment of fine
to undergo rigorous imprisonment for one year.
sg 902.ia2351-22.doc
3. Heard learned Counsel for Appellant/Applicant and learned
APP for Respondent-State.
4. Learned Advocate for Applicant submits that there is non-
compliance of Section 52A of the NDPS Act and, on that ground,
Applicant is entitled for acquittal. In support of the said application, she
relies on a decision of the Apex Court in Yusuf @ Asif vs. State in
Criminal Appeal No.3191 of 2023 arising out of SLP (Cri.) No.3010 of
2023. She further submits that out of substantive sentence of 10 years as
imposed on Applicant, Applicant has already completed 7 years and 10
months of imprisonment. She, therefore, prays for suspension of
substantive sentence of Applicant.
5. Learned APP, on the other hand, vehemently opposed the
prayer. He stated that the offence is proved and the trial court has
rightly convicted Applicant. Learned APP submits that evidence cannot
be appreciated at this stage and, therefore, the application deserves to be
dismissed.
6. Prima facie there appears substance in the contention of
Applicant that there is non-compliance of Section 52A in the present
matter. Learned Advocate for Applicant is justified in relying on the
decision of Yusuf @ Asif (supra). Taking into consideration the fact
that out of 10 years imprisonment, Applicant has already undergone 7
years 3 months imprisonment and appeal of the Applicant is not likely
sg 902.ia2351-22.doc
to be heard in near future and considering the pendency of jail appeals,
application deserves to be allowed. Hence, following order:
(i) Interim application is allowed.
(ii) Substantive sentence of imprisonment imposed vide
judgment and order dated 19th January 2019 in NDPS Case
No.220 of 2016 arising out of C.R.No.81 of 2016 registered
with the ANC, Azad Maidan is suspended during the
pendency of the appeal.
(iii) Applicant- Abdul Karim Noor Mohd. Shaikh be released on
bail on executing PR bond in the sum of Rs.50,000/- with
one or more sureties in the like amount.
(iv) Applicant shall attend the concerned police station twice a
month on first and third Sunday between 10.00 a.m. to
12.00 p.m..
(v) Applicant shall furnish his permanent address as well as
present address and Cell number/s to the concerned police
station.
[NITIN B. SURYAWANSHI, J.]
Signed by: Smita Gonsalves
Designation: PS To Honourable Judge
Date: 07/11/2023 18:39:07
