Bombay High Court
Vinod Sitaram Bharmal S/O Sitaram ... vs The Intelligence Officer Narcotic ... on 1 July, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:25758
Gokhale 1 of 5 2-ia-4220-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 4220 OF 2023
IN
CRIMINAL APPEAL NO. 123 OF 2023
Vinod Sitaram Bharmal ..Applicant
Versus
The Intelligence Officer,
Narcotic Control Bureau, Mumbai & Anr. ..Respondents
__________
Mr. Advait Tamhankar a/w. S. S. Bhandary for Applicant.
Mr. Arfan Sait, APP for State/Respondent.
Smt. Manisha Jagtap, Spl.P.P. for Respondent No.1.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 1 JULY 2024
PC :
1. This is an application for suspension of sentence and
grant of bail during pendency of Criminal Appeal No.123 of 2023.
2. Vide the Judgment and order dated 17.05.2019, the
applicant, who was the original accused No.2 in N.D.P.S. Case No.1
of 2016 before the Special Judge (N.D.P.S.), Palghar, was convicted
for commission of offence punishable under sections 20(b)(ii)(c)
r/w. Section 8(c) and Sections 29 and 30 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as
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'NDPS Act'). He was sentenced to suffer R.I. for 10 years and to
pay a fine of Rs.1 lakh.
3. The prosecution case is that, the four accused were
travelling in Toyota Qualis vehicle on 08.01.2016, near Charoti toll
plaza, District Palghar. The investigating agency had received prior
information, therefore, a team was formed to conduct the raid. At
about 5:30a.m., the vehicle was seen coming from Gujarat side
and was waiting in the queue of toll booth. The raiding team
encircled the car. It was found that, there were 18 packets of
hashish/charas weighing about 2kg. each. They were kept
concealed in a false cavity made on both sides of the rear part of
the vehicle. Inspection was taken and by following the procedure
under the NDPS Act, the contraband was seized. The total weight
of the contraband was 36kg. The samples were drawn. The
accused were arrested and in all four accused faced the trial. Out
of which, accused nos.3 and 4 were acquitted and accused Nos.1
and 2 were convicted, as mentioned earlier.
4. Learned counsel for the applicant submitted that, there
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is absolutely no difference between the case of the accused No.1
Raju Kavde and the present applicant. The accused No.1 Raju
Kavde has filed Criminal Appeal No.122 of 2022; which is already
admitted. He had also filed I.A.No.1199 of 2023 for his release on
bail during the pendency of his appeal. The said application was
allowed by a co-ordinate bench of this Court (Coram: Prakash D.
Naik, J.) vide the order dated 15.06.2023. The said accused No.1
Raju Kavde was granted bail and his substantive sentence was
suspended on certain conditions. He submitted that, grounds of
parity applied to the present applicant and, therefore, the present
applicant also deserves to be released on bail during pendency of
his Appeal.
5. Learned Special P. P. opposed these submissions by filing
an Affidavit-in-reply. It is taken on record. In paragraph-8 of that
affidavit, it is mentioned that the said order granting bail to the co-
accused during pendency of his Appeal has not attained finality
and it is yet to be challenged before the Apex Court.
6. I have considered these submissions. As of today, the
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order granting bail to the co-accused pending his Appeal has not
been challenged before the Hon'ble Supreme Court. Therefore, as
of today, the said order stands. I have perused that order. It was
observed in that order that the arguments regarding non
compliance of section 42 of the NDPS Act will have to be
appreciated at the final hearing stage. However, the said accused
was in custody for 7 years and 6 months. Thereafter, the co-
ordinate bench discussed the effect of his detention for that period
in the further paragraph Nos.9 to 12. Finally, in paragraph-13 it
was observed that the case of suspension of sentence was made
out. The applicant was in custody for a substantial period of time.
Out of the sentence of 10 years, he had spent 7 years and 6
months in custody. As far as the present applicant is concerned, he
is in custody for 8 years and 6 months. Therefore, in the case of
the present applicant, the principle of parity applies with more
force because the present applicant has spent more time in the
custody than the co-accused who is granted bail.
7. In this view of the matter, the applicant also deserves to
be released on bail during pendency of his Appeal.
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8. Hence, the following order:
ORDER
i) The substantive sentence imposed on the
applicant vide the Judgment and order dated
17.05.2019 in N.D.P.S. Case No.1 of 2016 passed
by the Special Judge (NDPS) Palghar, is
suspended. During pendency and final disposal of
Criminal Appeal No.123 of 2023, the applicant is
directed to be released on bail on his executing P.
R. bond in the sum of Rs.30000/- with one or
two sureties in the like amount.
ii) The Applicant shall not leave India without prior
permission of this Court.
iii) If the Applicant has passport, he shall deposit the
same before the Trial Court. If he does not have
passport and/or in the event his passport has
been seized by the Investigating Agency, the
applicant is exempted from depositing the
passport. However, he shall file Affidavit in that
regard before the Trial Court while executing bail
bond.
iv) The Interim Application is disposed of.
(SARANG V. KOTWAL, J.)
