SRJ cr.bail.appln.854-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.854 OF 2009 IN CRIMINAL APPEAL NO.1253 OF 2008 Akinsanya Baba Tunde Lateef @ Ibrahim .. Applicant V/s. Shri Sanjay A. Poojari & Anr., .. Respondents. Shri Sherali S. Khan, for Petitioner. Mrs. R.V.Newton, APP for the State. Shri D.N.Salvi, for Respondent No.1. CORAM : B.R.GAVAI, J.. DATE : March 09, 2010. P.C. : 1] This application is for grant of bail. The Applicant, has been convicted for an offence punishable under section 8(c) r/w 21(c) of Narcotic Drugs and Psychotropic Substances Act and directed to undergo R.I. for 10 years and to pay fine of Rs.1,00,000/-, in default, further R.I. for 3 years. 2] The application is basically filed on the ground that the Applicant has already undergone sentence of 6 years and 3 months and, therefore, in view of the Judgment Mansingh V/s. Union of India, reported 2006 (Criminal )279 and various other orders passed by the Division Bench and Single Judge of this Court, the Applicant is entitled to be released on bail, since he has already undergone more than 6 years. SRJ cr.bail.appln.854-09.sxw 2 3] Shri Salvi, the Learned counsel appearing on behalf of the Respondent opposes the application. He submits that in so far as the reliance placed on the judgment of Apex Court in the case of Mansingh is concerned, the same is not a Judgment, laying down ratio decidendi but only an order. He further submits that on the contrary, the Apex Court in the case of Ratan Kumar Vishwas vs. State of U.P. & Anr., reported in 2008 AIR SCW 7719, has clearly held that the mandatory condition provided under section 37 of N.D.P.S. Act, are required to be followed, even while considering the application for bail pending appeal. He, therefore, submits that in view of decision of the Apex Court, the application is liable to be rejected. 4] No doubt, that the Learned Counsel appearing on behalf of Respondent submits that the order passed by the Apex Court in the case of Mansingh is only an order and not a judgment. However, it is settled law that this Court is bound even by the order passed by the Apex Court and also even by obiter dicta of the Apex Court. In the said case, taking into consideration the facts that the accused was convicted for 10 years and had already undergone sentence for more than 7 years, and taking into consideration, the facts that there was no possibility of appeal being heard in near future, the Apex Court directed the release of accused on bail. Following the order of the Apex Court in the case of Mansingh, the Division Bench and Single Judges of this Court, have released the accused SRJ cr.bail.appln.854-09.sxw 3 after considering that they have undergone half of the sentence, when it was found that there was no possibility of hearing of the appeal in the regular course. 5] So far as reliance placed on the judgment of Ratan Kumar Vishwas is concerned, it could be seen that in said case, the accused after conviction, had filed an appeal before the High Court. Alongwith Appeal on application for suspension of sentence came to be filed. The said application was rejected by the High Court. The Apex Court on facts found that the High Court, after elaborate discussion of the evidence had found that no case for suspension of sentence was made out and, therefore, dismissed the appeal. It can, thus be seen that in the said case, application was made for suspension of the sentence, at the threshold of the filing of the appeal. 6] In the present case, it can be seen that the Applicant has undergone almost 6 years and 3 months. The total sentence is of 10 years. The applicant has, therefore, undergone 63% of the sentence. There is no possibility of appeal being heard in the near future. In the event, if appeal is not heard and disposed of till the completion of the sentence period, and if ultimately, after the sentence period is over, appeal is allowed, it would amount nothing else but travesty of justice. I find that in the present case, more than 60% of the sentence has already been undergone. As to what period of sentence should be considered as a sufficient period to follow the SRJ cr.bail.appln.854-09.sxw 4 judgment of the Apex Court in the case of Mansingh would always depend on the facts of such case and no straight jacket formula can be laid down for that purposes. 7] In that view of the matter, I am inclined to allow application. In so far as the interest of prosecution is concerned, care is taken up. The Applicant is, therefore, directed to be released on bail in the sum of Rs.25,000/- with one or more local surety in the like amount. The Applicant shall report once in every week to the Narcotic Control Bureau, Bombay. 8] Needless to state that this Court has not suspended the part of the order which imposes the fine upon the Applicant. (B.R.GAVAI, J. )