-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 433 OF 2009 IN CRIMINAL APPEAL NO. 618 OF 2008. Aniruddh Chavan. ..Applicant. Versus The Union of India & Anr. ..Respondents. Mr. Anil Lalla for the applicant. Mr. Francis Saldhana, Spl. PP for Union of India. Mr. K. V. Saste, APP for the State Coram : R. V. MORE, J. Date : January 21, 2010. P. C. : 1. Heard Mr. Lalla, learned counsel for the applicant and Mr. Saldhana, learned counsel for the respondent no.1. 2. This application is filed for bail pending the final hearing and disposal of the above said criminal appeal. The applicant is convicted for the offences punishable under section 8(c) read with 22(c) and section 29 read with 8(c) punishable under section 22(c) of the NDPS Act, 1985 and sentenced to suffer R.I. for 10 years and to pay a fine of Rs.1 lakh, in default, to further undergo R.I. for 3 months. 3. Mr. Lalla, learned counsel for the applicant submitted that earlier in the month of January 2009 the applicant filed criminal application No. 1199 of 2008 for bail pending disposal of the appeal and this Court by -: 2 :- order dated 19th January 2009 fixed the criminal appeal for hearing in the week commencing from 2nd March 2008 alongwith liberty to the applicant to file fresh applicaiton in case the appeal is not heard. The present application is filed since the appeal is not heard. He further submitted that the applicant was taken into custody on 23rd April 2002 and since then he is continuously in custody till date. As on today the applicant has undergone sentence of 7 years and 9 months approximately. He also submitted that there is no likelihood to reach this appeal for final hearing and therefore the applicant deserves to be released on bial. He relied upon the Apex Court judgment in the case of Mansingh v/s. Union of India [(2006) 1 SCC (Cri) 279] and in the case of Bhagwan Rama Shinde v/s. State of Gujarat [1999 Cri.L.J. 2568]. He also relied upon several orders passed by the Single Judge of this Court in this regard. 4. Mr. Saldhana, Special counsel for the Union of India on the contrary relied upon the Apex Court judgment in the case of Ratan Kumar Vishwas v/s. State of UP and Anr. [(2009) 1 SCC 546], in the case of Union of India v/s Ratan Mallik @ Habul [(2009) 2 SCC 624], in the case of Union of India v/s. Shiv Shanker Kesari [(2009) 7 SCC 798], in the case of N.R.Mon v/s. Mohd. Nasimuddin [(2008) 6 SCC 721] and in the case of Collector of Customs, New Delhi v/s. Ahmadalieva Nodira [2004 SCC (Cri) 834] and submitted that the applicant is not entitled for the bail and suspension of sentence. -: 3 :- 5. Having gone through the application and the decisions of the Apex Court cited by the learned counsel and having considered the rival submissions, I am of the view that the applicant cannot be granted bail. 6. In Mansingh’s case (supra) the Apex Court released the appellant on the ground that the appellant had already undergone more than 7 years of imprisonment and there was no likelihood of appeal being heard in the near future. This case also arose under the provisions of the NDPS Act, 1985. However, it is important to note that the Apex Court was not considering the provisions of section 37 of the NDPS Act, 1985. Apart from this the Apex Court has special power under Article 142 of the Constitution of India. While considering the application for bail under the NDPS Act, 1985 the High Court cannot overlook the mandatory provisions of Section 37 of the NDPS Act. 7. In Ratan Kumar Vishwas’s case (supra) the Apex Court held that to deal with the menace of dangerous drugs flooding the market, Parliament has provided that a person accused of offence under the Act should not be rleased on bail during trial unless the mandatory conditions provided under section 37 of the NDPS Act, viz., there are reasonable grounds for holding that the accused is not guilty of such offence and accused is not likely to commit any offence while on bail, are satisfied. This judgment is delivered by a Bench consisting of three judges and decided on 7th November 2008, i.e., subsequent to the decision in the Mansing’s case -: 4 :- (supra). 8. In Ratan Maillik’s case (supra) the Union of India approached the Apex Court against the order of the High Court granting bail to the respondent – accused in an offence under the NDPS Act. The Apex Court remitted the matter to the High Court for fresh consideration of the application. The Apex Court held that it is not permissible to the High Court to overlook the provisions of Section 37 of the NDPS Act. 9. In Shiv Shanker Kesari’s case (supra) the Apex Court explained the meaning of the expression “reasonable grounds” used in section 37 of the NDPS Act, and held that there must be existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. 10. In N.R. Mon’s case (supra), the Apex Court in terms held that the bail to the accused under the NDPS Act cannot be granted without specifically considering the parameters of Section 37(1)(b) of the NDPS Act. 11. In Ahmadalieva Nodira’s case (supra) the Apex Court again emphasised that the conditions under section 37(1)(b) of the NDPS Act are required to be satisfied before grant of bail. 12. In the light of the above decisions of the Apex Court post Mansing’s case, which was decided in the year 2004, in my opinion, the applicant cannot be enlarged bail merely because he has undergone major portion of his sentence. -: 5 :- 13. That apart, the quantity of the drugs siezed, i.e., mandrax tablets was 220 kgs packed in 17 baskets of mangoes. Statement of the accused given under section 67 of the NDPS Act that he was involved in the transportation of this contraband from Rajsthan to Mumbai is considered by the learned Special Judge. The prosecution also relied upon evidence of the owner of the premises where from this contraband was seized. The owner in terms stated that the applicant alongwith others transported the baskets containing the contraband to the house from where the same was seized. 14. In the light of this evidence on record, in my opinion, the twin conditions mentioned in section 37(1)(b) of the NDPS Act are not satisfied. Taking the totality of the facts and circumstances into consideration, I am of the opinion that the applicant has failed to make out any case for grant of bail. In the circumstances, application is rejected. (R.V. MORE, J.)