[Cites 10, Cited by 0]
Bombay High Court
Saif Husain Ishtiyak Husain Chaudhary vs State Of Maharashtra on 1 December, 2025
2025:BHC-AS:52200
S.S.Kilaje 2 -IA-72-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 72 OF 2025
IN
CRIMINAL APPEAL NO. 1291 OF 2024
Saif Husain Istiyak Husain Chaudhary ... Applicant
Versus
State of Maharashtra ... Respondent
...............
Mr. Kiran Gogavale, Advocate for the Applicant/Appellant.
Mr. C.D.Mali, APP for the State.
Mr. Sachin Palve, API, Worli Police Station, Mumbai present.
CORAM : R. M. JOSHI, J.
RESERVED ON : 25th NOVEMBER, 2025.
PRONOUNCED ON : 1st DECEMBER, 2025.
P.C. :
1. This application is filed by the appellant for suspension of
substantive sentence and enlargement on bail in connection with Judgment
and Order dated 27.11.2024 passed in N.D.P.S. Special Case No. 815 of
2022 whereby the appellant is sentenced to suffer rigorous imprisonment
for 10 years with fine.
2. Learned counsel for the appellant submits that during the trial the
appellant was on bail and since the imposition of the sentence, he is in jail.
It is his submission that the evidence on record indicates about non
compliance of Section 50 of the Narcotic Drugs and Psychotropic
Substances Act (for short "NDPS Act") read with Section 41 and Section 42
S.S.Kilaje 2 -IA-72-2025.doc
thereof. In this regard, attention of this Court has been drawn to the
evidence on record which indicates that before carrying out personal
search, the appellant /accused was not apprised of his right to be produced
before the Gazetted officer or Judicial Magistrate by relying upon the
following Judgments :
(i) Mohinder Kumar Vs. The State, Panaji, Goa (Cri.Appeal No.
399 of 1992); (ii) Shiv Kumar Ashok Mishra Vs. Special Judge of
N.D.P.S. Court, Mapusa-goa State. (Criminal Appeal No. 22 of
1994); (iii) Arif Khan @ Agha Khan Vs. State of Uttarakhand
(Criminal Appeal No. 273 of 2007) ; (iv) Union of India Vs. Leen
Martin (Criminal Appeal No. 2150 of 2011); (v) Leen Martin Irish
National Vs. Union of India, Air Intelligence Unit and Ors.
(Criminal Appeal No. 379 of 2007); (vi) Pyare Mohammad s/o.
Mohammad Isaq Vs. State of Maharashtra (Criminal Appeal No.
310 of 2002); (vii) Mangilal Vs. State of Madhya Pradesh (Criminal
Appeal No. 1651 of 2023); (viii) Union of India Vs. Jarooparam
(Criminal Appeal No. 741-742 of 2011) ; (ix) Vijaysinh Chandubha
Jadeja Vs. State of Gujarat (Criminal Appeal No. 943 of 2005 with
Nos. 974 of 2003 and 1809 of 2009); (x) Mohinder Kumar Vs. The
State, Panaji, Goa; (xi) Shiv Kumar Ashok Mishra Vs. Special Judge
of N.D.P.S.Court, Mapusa-goa State.
S.S.Kilaje 2 -IA-72-2025.doc
It is further argued that the case of the prosecution has not been
supported by panch witnesses so also the destruction certificate has not
been produced before the Trial Court. To support this submission.
Reference is made to the following judgments :
(i) Union of India Vs. Leen Martin
(ii) Leen Martin Irish National Vs. Union of India, Air Intelligence
Unit and Ors.
3. Learned Special P.P. opposed the application by submitting that the
applicant has been convicted and sentenced to suffer 10 years
imprisonment and that he has not even undergone half of the sentence. In
response to the submissions of the learned counsel for the appellant with
regard to the non compliance of the provisions of Section 50 and Section
42 of the Act, reliance is placed on the Judgment of the Hon'ble Supreme
Court in the case of Ranjan Kumar Chadha Vs. State of Himachal Pradesh
in Criminal Appeal Nos. 2239-2240-2011, to argue that in view of the law
settled by the Hon'ble Supreme Court the compliance of Section 50 would
be required only in the case of personal search of the accused i.e. search of
his body and / or apparels on the body. It is argued that since as per the
evidence on record, the contraband articles are seized from the polythene
bag held by the appellant / accused, there is no substance in the argument
of non compliance of Section 50 read with Section 42 of the Act.
S.S.Kilaje 2 -IA-72-2025.doc
Reference is also made to the Judgment of Hon'ble Supreme Court in the
case of Narcotic Vs. Kasif in [Criminal Appeal No. 5544 of 2024 (@Special
Leave Petition (Cri.) No. 12120 of 2024)], to argue that any irregularity
committed in disposal of contraband the articles may not affect the trial
being irregularity and not illegality.
4. At this stage, this Court is required only to prima facie consider as to
whether the appellant would have any chance of success during the
hearing of the appeal. The only issue sought to be argued before this
Court is that there is non compliance of Section 50 read with 42 of the Act.
It is submitted that it was the right of the appellant / accused of being
apprised of the fact that he has right to seek his personal search before the
Gazetted Officer or before the Judicial Magistrate. Here in this case, there
is no evidence on record to indicate so. However, the prima facie
consideration of evidence indicates that the seizure of the contraband
articles has not been done from the person of the accused but the same has
been done from, the polythene bag held by him. Hence, it would be
relevant to take note of the judgment of the Hon'ble Supreme Court in the
case of Ranjan Kumar Chadha (Supra) as well as in the case of State of
Kerla Vs. Prabhu in Criminal Appeal No. 3434 of 2024.
5. The perusal of the said Judgments clearly indicate that according to
the Hon'ble Supreme Court the compliance of Section 50 would come in
S.S.Kilaje 2 -IA-72-2025.doc
play only in the case of personal search of the accused i.e. appearance on
his person and would not apply to the bag held by him in his hand. Thus,
there is no prima facie substance in contention of appellant in that regard.
6. Apart from this, the Judgment in the case of Narcotics Control
Bureau (supra) indicates that unless there is procedural legality, the same
would not vitiate the trial. Hence, this Court can not accept that such
procedural irregularity would help the accused to succeed in Appeal.
7. Having regard to these facts, this Court finds it difficult to accept the
contention of the appellant that there would have reasonable chance of
success in the appeal. The appellant has not been undergone half of the
sentence. Owing to these reasons, no case is made out for appellant for
enlargement on bail, hence dismissed.
8. Appeal stands expedited.
9. The observations made above are limited for decision of this
application and could not come in way of either side during hearing of
appeal finally.
( R. M. JOSHI, J.)
SONALI SATISH
SATISH Date:
KILAJE
KILAJE 2025.12.01
15:55:26
+0700
