In The Matter Of vs Md. Nur Ali & Anr

Re : CRAN 4580 of 2019

This application for suspension of sentence and granting bail against a conviction and sentence handed down by the Court below under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is being considered hearing learned counsel for the appellants/applicants and learned counsel for the Union of India (N.C.B.).

The gist of the prosecution case was that the two accused persons were intercepted within the premises of the Netaji Subhash Chandra Bose International Airport and heroine was recovered from them totalling to such quantity that would be commercial quantity for the purpose of Section 21(c) of the Act. The complaint was presented through PW 1. PW 3 is the scientist who analyzed the sample. PW 2 is the person who is said to have intercepted the accused and the contraband along with other officers. While it is the case that the currency notes were handed over by the accused persons, the contraband is stated to have been seized in polythene covers from a bag that they were found to be carrying. We say this at this point of time on the basis of the submission made on either side to indicate that this is not one of those cases to which Section 50 would apply. The situation in hand is one where the possession of the contraband with the accused persons ought to be proved by tangible legal evidence; in which event, the burden of proof would shift based on the impact that Section 35 of the Act would have on the fact situation. Apart from the testimony of PW 2, there is no corroborating evidence regarding the search and seizure, even through any other member of the search team. It is submitted by learned counsel for the appellants that two witnesses were cited to prove the search and seizure, but they were not examined.

In the light of the aforesaid fact situation, subject to the final outcome of this appeal, we are of the view that the appellants, who are applicants in this application, have established a strong prima facie case which entails them for grant of an order of suspension of sentence and for bail pending appeal, however, on conditions which we would impose hereinunder.

In the result, the appellants/applicants are eligible to grant of bail and we accordingly allow this application to the extent that the appellants/applicants shall be released on bail upon furnishing bail bonds of Rs.50,000/- each, with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Convicting Court and on further condition that the appellants/applicants shall record their presence before the Court below between 25th and 30th of every month commencing from January, 2020 and further that the appellants shall be personally present or be represented before this Court when the appeal is taken up for hearing.

List the appeal for hearing as and when the same becomes ready for hearing.

The application being CRAN 4580 of 2019 is, thus, disposed of.

Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of all necessary formalities.