1 Crappln-804.09 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 804 OF 2009 IN CRIMINAL APPEAL NO. 1228 OF 2008 IN SPECIAL NDPS CASE NO. 15 OF 2003 Rasool Mohd. Yunus Shah. .. Applicant Vs I.O., N.C.C.P, New Customs House, Ballard Peer, Mumbai & Another. .. Respondents -- Shri Atul Sarpande for the Applicant. Mrs. Anuradha Mane, Spl. PP for the Respondents. -- CORAM : A.S.OKA, J. DATE : 14TH DECEMBER, 2010 P.C: . By order dated 19th October 2010, Hon’ble the Chief Justice has assigned this application to this Court. . Heard learned counsel appearing for the Applicant and the learned counsel appearing for the 1st Respondent. The Applicant has been convicted for an offence punishable under Section 8(c) read with Sections 29 and 20(b) of Narcotic Drugs and Psychotropic Substance Act, 1985 ( hereinafter referred to as “the NDPS Act” ). The substantive sentence is of 10 years’ rigorous imprisonment with fine of Rs.1 lakh. The Applicant is 2 Crappln-804.09 in custody since September, 2002. Thus, he has completed more that 8 years in custody. The first application for bail made by the Applicant in this Court was not pressed. The said application was filed along with the appeal. The second application was rejected by an order dated 4th May, 2009. The main consideration of this Court while rejecting the application was that the hearing of the appeal was expedited and the paper book was already received. The period of nearly 1 and ½ years thereafter has elapsed and the appeal has not reached final hearing. Learned counsel appearing for the Applicant has relied upon the decision of the Apex Court in the case of Mansingh v. Union of India [ (2006) 1 SCC (Cri) 279 ]. Learned counsel also relied upon the order dated 7th January, 2009 passed in Criminal Application No.620 of 2008. Lastly he relied upon a decision of this Court dated 14th March, 2008 in Criminal Application No.1380 of 2006. His submission is that a substantial part of the substantive sentence has been undergone by the Applicant and in near future, there is no possibility of the appeal being heard finally. 2. The learned counsel appearing for the 1st Respondent has placed reliance on the order dated 21st January, 2010 passed by this Court in Criminal Application No. 433 of 2009. Learned counsel submitted that Section 37(1)(b) of the NDPS Act will govern the application for bail in the appeal and in the present case, both the conditions covered by the said Section were not satisfied. 3 Crappln-804.09 3. The decision of the Apex Court in the case of Mansing (supra) arose out of an order passed in the appeal where conviction was under the NDPS Act. The orders of this Court dated 7th January, 2009 and 14th March, 2008 have been passed in appeals against an order of conviction under NDPS Act. The view taken is that if the Appellant has undergone a substantial part of the sentence and if the appeal is not likely to reach final hearing, the prayer for grant of bail has to be considered. As far as the order dated 21st January, 2010 in Criminal Application No.433 of 2009 is concerned, the learned Judge has taken into consideration the factual matrix of the case before him as is apparent from Paragraph 13 of the order. In the facts of the present case, the Applicant who is Accused No.1 is found guilty for having conspired together and thereby controverted in relations to cannabis with Accused No.4, Gulam Gilani Khan, to sell the said substance. As pointed out earlier, the Applicant has been in custody for 8 years and 3 months. The appeal is of the year 2008 and considering pendency of the appeals, there is no possibility of the appeal being finally heard in near future. By the time Appeal reaches hearing, the Applicant may have undergone the entire substantive sentence. Therefore, a case is made out for grant of bail subject to stringent conditions. Hence, I pass the following order. ORDER (i) The Applicant shall be enlarged on bail on furnishing 4 Crappln-804.09 PR bond in the sum of Rs.25,000/- with two solvent sureties in the like amount. (ii) The Applicant shall be entitled to avail of benefit of bail only after deposit of the entire fine amount. (iii) The Applicant shall be enlarged on bail only after he furnishes to the concerned Officer/s of the Jail his correct and detailed address of the place of residence and contact telephone number/s. (iv) Bail is granted subject to condition that the Applicant will not travel abroad without prior permission of this Court. (v) Bail is granted subject to condition that the Applicant will report to the office of Narcotics Control Cell at New Customs House, Ballard Peer, Mumbai once in every calender month till disposal of the Appeal. (vi) The Criminal Application is disposed of in above terms. 5 Crappln-804.09 (A.S.OKA, J)