The Madhya Pradesh High Court has granted bail to a convict under the NDPS Act pending appeal, emphasizing that prolonged pre-appeal custody and the likelihood of delayed appellate hearing justify suspension of sentence under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The order underscores that mere conviction does not preclude interim relief when justice demands it.
Background & Facts
The Dispute
The appellant, Raees Khan, was convicted by the Special Judge (NDPS Act), Sehore, in S.C. NDPS No. 13/2022 for an offence under Section 8(C) read with Section 20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was sentenced to five years of rigorous imprisonment and a fine of Rs. 10,000, with a default stipulation. The conviction was based on alleged recovery of narcotics, but the appellant contends that the prosecution failed to comply with mandatory procedural safeguards under Sections 41, 42, and 52-A of the NDPS Act.
Key Facts
- The alleged seizure of narcotics occurred on or around 17.45 hours on an unspecified date during the trial period
- The trial court, in Paragraph 28 of its judgment, held that the search was conducted in an open area during summer, and therefore Section 42 of the NDPS Act did not apply
- The prosecution did not examine Ramraj Meena, an independent seizure witness named in the seizure memo
- Ruksar (PW5), another independent witness, did not support the prosecution’s version
- The Investigation Officer’s testimony was found inconsistent and unreliable by the appellant
- No compliance with Section 52-A of the NDPS Act regarding timely sampling and forwarding of the seized substance to the forensic laboratory was established
- The appellant was arrested on 14.05.2022 and remained in custody until 05.01.2023 (236 days)
- The judgment of conviction was delivered on 04.11.2025
- As of the date of the bail order (23.03.2026), the appellant had served approximately 1 year and 10 months in custody (including pre-trial and post-conviction)
Procedural History
- 14.05.2022: Arrest of appellant
- 04.11.2025: Conviction and sentencing by Special Judge (NDPS Act), Sehore
- 05.01.2023: End of pre-trial custody
- 23.03.2026: Filing of I.A. No. 553 of 2026 before the Madhya Pradesh High Court seeking suspension of sentence and bail
- 23.03.2026: Order passed by the High Court allowing the application
Relief Sought
The appellant sought suspension of the remaining sentence of rigorous imprisonment and enlargement on bail pending appeal, citing:
- Already served custody of over one year
- Fixed term sentence of five years
- No prospect of early hearing of the appeal
- Non-compliance with mandatory procedural provisions under the NDPS Act
- Risk of undue hardship due to prolonged incarceration
The Parties' Positions
For the Appellant
The appellant’s counsel argued that:
- The trial court erred in ignoring non-compliance with Sections 41 and 42 of the NDPS Act
- The failure to examine a named independent witness (Ramraj Meena) and the unreliable testimony of the Investigation Officer vitiated the conviction
- Section 52-A was violated by undue delay in sampling
- The appellant had already served a substantial portion of his sentence
- The appeal was unlikely to be heard in the near future
For the Respondent/State
The State opposed the application, arguing that:
- The conviction was based on sufficient evidence
- Procedural lapses, if any, were not material
- The gravity of the offence under the NDPS Act militates against granting bail
- Suspension of sentence would undermine deterrence
The Legal Issue
Whether the High Court may suspend the execution of a sentence under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, pending appeal, where the appellant has already served a significant portion of the sentence and the appeal is likely to face prolonged delay.
Arguments Presented
For the Appellant
The appellant’s counsel relied on the Supreme Court’s decision in Aasif @ Pasha v. State of U.P. (2025 INSC 944), which held that suspension of sentence pending appeal is not contingent upon the appellant proving a prima facie case on merits, but rather on the balance of convenience, delay in appellate hearing, and time already spent in custody. It was submitted that the appellant had served over one year in custody, including 236 days pre-trial, and that the appeal was unlikely to be heard for an indefinite period. The counsel emphasized that the appellant was not a flight risk and had no prior criminal record.
For the Respondent/State
The State contended that offences under the NDPS Act are serious and involve public interest, and that granting bail pending appeal would set a dangerous precedent. It argued that procedural irregularities alleged by the appellant were not substantiated and that the trial court’s findings should not be disturbed at the bail stage. The State further submitted that the appellant had not demonstrated any exceptional hardship warranting interim relief.
The Court's Analysis
The High Court explicitly declined to evaluate the merits of the conviction or the validity of the trial court’s findings. Instead, it confined its analysis to the legal principles governing suspension of sentence under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is the successor to Section 389 of the CrPC.
"The law laid down in Aasif @ Pasha v. State of U.P. makes it clear that the grant of suspension of sentence pending appeal is not dependent on the appellant demonstrating a prima facie case on the merits of the appeal. The primary considerations are the length of custody already undergone, the likelihood of delay in the disposal of the appeal, and the nature of the sentence imposed."
The Court noted that the appellant had already undergone custody for over one year, including 236 days during trial, and that the sentence imposed was a fixed term of five years. Given the backlog in appellate courts and the absence of any indication that the appeal would be heard in the foreseeable future, the Court found that the appellant faced a real risk of serving a disproportionate portion of his sentence before appellate review.
The Court further observed that the appellant was not a repeat offender and had no history of absconding. The conditions proposed for bail were deemed sufficient to ensure his presence before the trial court and the appellate forum.
The Court rejected the State’s argument that the gravity of the NDPS offence alone justified denial of bail, holding that such considerations are already factored into the sentence and cannot override the statutory right to seek suspension pending appeal.
The Verdict
The appellant succeeded. The Madhya Pradesh High Court allowed I.A. No. 553 of 2026 and directed that the execution of the remaining sentence of rigorous imprisonment be suspended pending appeal. The appellant was enlarged on bail subject to furnishing a personal bond of Rs. 50,000 with one solvent surety of like amount. He was directed to deposit the fine of Rs. 10,000 immediately, appear before the trial court on dates fixed, and ensure legal representation at the hearing of the appeal. The trial court was authorized to issue warrants under Section 446 of CrPC/Section 491 of BNSS, 2023, and to recover the bond amount in case of breach, without reference to the High Court.
What This Means For Similar Cases
Suspension of Sentence Is Not Dependent on Merits
- Practitioners may now invoke Aasif @ Pasha to argue that suspension under Section 430 BNSS is a procedural right, not a merit-based privilege
- The burden is not on the appellant to prove the conviction is likely to be set aside
- Courts must focus on custody duration, appellate delay, and proportionality
Custody Duration Triggers Relief
- Over one year of custody (including pre-trial) is a strong indicator for suspension
- Fixed-term sentences of five years or more are particularly vulnerable to suspension if appeal is delayed
- Pre-trial custody must be counted toward total time served
Procedural Lapses Are Not Required for Relief
- Even if procedural violations under NDPS Act are unproven, suspension may still be granted
- The focus is on the practical reality of incarceration, not the strength of the appeal
- Courts must avoid conflating bail on merits with suspension of sentence
Conditions Are Strict but Enforceable
- Bond and surety conditions must be specific and enforceable
- Trial courts are empowered to act independently on breach without High Court intervention
- Non-appearance triggers automatic forfeiture and re-arrest without prior notice to the High Court
