Bombay High Court
Iliyas Mehmood Shaikh vs The State Of Maharashtra on 6 May, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
1/5 4 ia 1345-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1345 of 2024
IN
CRIMINAL APPEAL NO. 823 OF 2022
Illiyas Mehmood Shaikh .. Applicant
Versus
The State of Maharashtra .. Respondent
...
Mr.Sherali S. Khan for the applicant.
Smt. Mahalakshmi Ganpathy, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 6th MAY, 2024
P.C:-
1 For the second time, Interim Application is moved in
the pending Appeal, challenging the judgment of conviction in
Sessions Case No.5/2013, and the applicant Iliyas Mehmood
Shaikh, who was refused his relief on 15/3/2023, claim parity
with other co-accused.
2 When I had specifically raised a query as to whether
the second Bail Application in a pending Appeal would lie, the
learned counsel has relied upon the decision of the Allahabad
High Court in case of Dal Chand and ors Vs. State of U.P,1.
1 2000 Cri.L.J. 4579
Tilak
2/5 4 ia 1345-24.doc
The said decision is based upon the decision of the
Apex Court in case of Babu Singh Vs. State of U.P, 2, which has
held that it cannot be said that the second Bail Application by
way of interlocutory relief, is not maintainable, but at the same
time, the Apex Court also emphasized the factors which have to
be kept in mind while granting bail to an accused and in
paragraph no.13, what is observed, is relevant to note:
"13 Let us have a glance at the pros and cons and the true principle
around which other relevant factors must revolve. When the case is
finally disposed of and a person is sentenced to incarceration, things
stand on a different footing. We are concerned with the penultimate
stage and the principal rule to guide release on bail should be to secure
the presence of the applicant who seeks to be liberated, to take judgment
and serve sentence in the event of the Court punishing him with
imprisonment. In this perspective, relevance of considerations is
regulated by their nexus with the likely absence of the applicant for fear
of a severe sentence. If such is plausible into the case. As Erla, J,
indicated, when the crime charged (of which a conviction has been
sustained) is of the highest magnitude and the punishment of it assigned
by law is of extreme severity, the Court may reasonably presume, some
evidence warranting that no amount of bail would secure the presence of
the convict at the stage of judgment, should lie be enlarged."
3 It being a settled position of law that repeated
applications for bail cannot be entertained, and it is only in the
wake of the changed circumstances; one of it may be delay in
hearing of the Appeal, the application can be renewed. However,
before me, what the learned counsel has pressed into service are
two orders passed in case of co-accused; and they being passed
subsequent to the relief being refused to him, this is being sought
to be construed as change in circumsance, and I totally disagree
2 1978 (1) SCC 579
Tilak
3/5 4 ia 1345-24.doc
with the submission of the learned counsel, for the reasons
recorded in the subsequent paragraph.
4 On 15/3/2023, while considering the application for
suspension of sentence filed in the pending Appeal, he having
been convicted and found guilty of Section 20(c) of the NDPS
Act, 1985 and being sentenced to suffer RI for 10 years and to
pay fine of Rupees One lakh, on considering the case of the
prosecution, which has clearly surfaced through its witnesses, and
based on the evidence, the learned Sessions Judge had recorded
the guilt of the accused persons, including the present
appellant/applicant, I had referred to the evidence on the basis of
which the finding was rendered, resulting into imposition of
sentence.
5 The prosecution had proved beyond reasonable
doubt that five persons were travelling in a Pajero vehicle, which
started from Nepal with the contraband, and when the trap was
laid, on the information received, they were found in the vehicle
along with the incriminating substance, and their search laid to a
seizure of 6 kg 900 gms of contraband, which, on testing, was
found to be charas.
Since the evidence led before the Sessions Judge was
clinching and pointing out towards the accused, including the
applicant - Iliyas Mehmood Shaikh, I clearly recorded that the
case of the prosecution do not suffer from any material
Tilak
4/5 4 ia 1345-24.doc
contradictions and the finding of guilt recorded against the
present applicant, was supported by cogent and reliable evidence.
The argument that the contraband was found in the
vehicle and not in conscious possession, was also rejected by me
by recording reasons in the said order.
6 Co-accused Chandrashekhar Sherekar filed an
Interim Application No.1059/2023 in the Appeal, being
aggrieved by the very same judgment, and in the backdrop of the
argument that he was resident of Nasik and he knew the main
accused and therefore, he carried his vehicle to Indore and towed
the vehicle of the accused from Indore to Nasik, where the
vehicle of the accused was intercepted and contraband was seized,
the argument advanced was, "except this, the appliant has no
other involvement in the alleged offence."
The learned Judge, merely on the ground that there
are no criminal antecedents and prima facie, there appears to be
substance in the contention of the applicant, and he was not
involved in the alleged offence, because he was towing the
vehicle, when the vehicle of the accused was raided, released him
on bail.
Drawing parity, another co-accused Nikhil Alias
Sunny Suresh Gaikwad, was also released on bail on 13/3/2024,
following the same analogy.
Tilak
5/5 4 ia 1345-24.doc
7 As far as the present applicant/appellant is concerned,
the prosecution has very much established that he was present in
the pajerao vehicle from where the contraband of commercial
quantity was recovered and rightly appreciating the evidence
placed on record, the Sessions Judge found him guilty u/s.20C of
the NDPS Act, 1985 and convicted him.
8 Once there is a finding by a competent Court by
appreciating the evidence placed on record by the prosecution,
unless and until there is something convincing to establish that
the finding is perverse, I do not think that the case is made out for
releasing such an accused on bail.
In the present case, on distinguishing the observation
of the learned Judge in cases of one of the accused and the other
claiming parity with the first one, this definitely cannot be
considered as change in circumstance, as has been highlighted in
case of Babu Singh (supra).
Application is therfore, rejected.
( SMT. BHARATI DANGRE, J.)
Tilak
