IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1011 OF 2008 CRIMINAL APPLICATION NO. 1011 OF 2008 CRIMINAL APPLICATION NO. 1011 OF 2008 IN IN IN CRIMINAL APPEAL NO. 456 OF 2007 CRIMINAL APPEAL NO. 456 OF 2007 CRIMINAL APPEAL NO. 456 OF 2007 Ramprasad @ Bhairav Prasad Yadav ...Applicant (Orig.Accused No.1) vs. Union of India & Anr. ...Respondents Ms.Nilofar Saiyed i/b. Mr.Ayaz Khan for the Applicant. Mr.D.N. Salvi for Respondent - Union of India. Mr.P.A. Pol, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 14, 2008 DATED : OCTOBER 14, 2008 DATED : OCTOBER 14, 2008 P.C. :- P.C. :- P.C. :- 1. The applicant admittedly is in custody since 2nd February, 2001. He has been convicted by the trial Court for the offence punishable under Section 8(c) read with 21 of the NDPS Act and 8(c) read with 29 of the NDPS Act and sentenced to under RI for 10 years and to pay a fine of Rs.1 Lakh and in default, to suffer further RI for three months. The applicant already has undergone 7 years 8 months out of the said period of 10 years. 2. Counsel for the applicant has relied on the - 2 - judgment of the Apex Court in the case of Mansingh v/s. Mansingh v/s. Mansingh v/s. Union of India, reported in (2006) 1 SCC (Cri) 279. Union of India, reported in (2006) 1 SCC (Cri) 279. Union of India, reported in (2006) 1 SCC (Cri) 279. She also invited my attention to several orders passed by this Court wherein the accused was released on bail after he had undergone more than 7 years of imprisonment. 3. Counsel for Union of India invited my attention to Section 37 of the NDPS Act and submitted that in view of the said provision, the applicant was not entitled to be released on bail. He also submitted that the applicant be directed to pay a fine amount as imposed by the trial Court. 4. It is no doubt true that under Section 37 of the NDPS Act, a restriction has been imposed on the power of the court to grant bail and this restriction also applies to cases in which the appeal has been filed against the order of conviction. However, the Court is entitled to grant an order of bail under certain circumstances. The appeal filed by the applicant is not likely to be heard immediately in the near future and - 3 - therefore, it is possible that before the statutory remedy which is made available to the applicant and his appeal is heard, he may have already undergone sentence imposed by the trial court. The Apex Court in similar circumstances, therefore, in the case of Mansingh v/s. Mansingh v/s. Mansingh v/s. Union of India (supra) Union of India (supra) Union of India (supra) directed that the appellant in the said case be released on bail. The Apex Court had placed reliance on the earlier decision of the Apex Court in the case of Dadu vs. State of Maharashtra Dadu vs. State of Maharashtra Dadu vs. State of Maharashtra, (2000) SCC (Cri) 1528. (2000) SCC (Cri) 1528. (2000) SCC (Cri) 1528. In this case, the question of directing the appellant to pay the amount of fine at this stage does not arise in view of the specific provision made under Section 357 subclause 2. Section 357 subclause 2 reads as under :- "357. Order to pay compensation.- 357. Order to pay compensation.- 357. Order to pay compensation.- (2) If the fine is imposed in a case which (2) If the fine is imposed in a case which (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be is subject to appeal, no such payment shall be is subject to appeal, no such payment shall be made before the period allowed for presenting made before the period allowed for presenting made before the period allowed for presenting the appeal has elapsed, or, if an appeal be the appeal has elapsed, or, if an appeal be the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal." presented, before the decision of the appeal." presented, before the decision of the appeal." 5. The submission made by the learned Counsel for Union of India that the appellant be directed to deposit the amount of fine, cannot be accepted at this stage. - 4 - Even on merits, I am of the view, prima facie case also, all the provisions of Section 42, 57 have not been complied and what is recovered and what is sent to the CA is a different substance all together. Therefore, even on merits, the applicant has a good case. 6. The applicant, under these circumstances, to be released on bail in the sum of Rs.10,000/- with one or two sureties of the like amount. He shall, however, report to NCB, Mumbai, once in a month. The applicant shallprovide one local surety. 7. The application is disposed of in the aforesaid terms. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)