1 cr-appa-638-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 638 OF 2010 IN CRI. APPEAL NO. 525 OF 2007 IN N.D.P.S.CASE NO. 47 OF 2001 Mr. Mohd. Kamil Mohd. Shabuddin ..Applicant Vs. Union of India & Anr. ..Respondents .... Mr. Atul Sarpande Adv. for applicant Smt.Poornima H.Kantharia with Mr. Kiran J.Kandpile Adv. for Respondent no.1 Smt. U.V.Kejariwal APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : OCTOBER 04 , 2010 P.C.: 1 Heard the learned advocate for the applicant-original accused no.2 and the learned APP for the State. 2 The applicant has been convicted in NDPS Special Case No. 47 of 2001 under Sections 8(c), 21 and 8(c) read with Section 29 of the NDPS Act. The appeal preferred by the applicant is pending. The applicant is now seeking bail. 3 The learned advocate for the applicant states that the co- 2 cr-appa-638-10 accused no.1 Ramprasad @ Bhairav Prasad Yadav has been granted bail by this Court by order dated 14.10.2008 in Cri. Application No.1011 of 2008, hence, the present applicant may be granted bail on the ground of parity. He has placed reliance on the order dated 14.10.2008 wherein this Court has observed that all the provisions of Section 42 of the NDPS Act have not been complied with and there is prima facie material to show that what is sent to CA is different substance altogether. 4 He has also placed reliance on the decision of the Division Bench of this Court dated 3.2.2009 in Cri. Application No. 733 of 2008 in Cri. Appeal No. 520 of 2008 in Arun Trimbak Gawade Vs. P.S.Namboodiri and Anr. (Coram: Bilal Nazki and Anoop V.Mohta, JJ.) which is also a case under the N.D.P.S. Act. In the said case this Court granted bail to the accused as the co-accused had already been granted bail and no steps were taken by the respondents to challenge the said order. It was observed therein that the Court cannot give different treatment to the accused who sail in the same boat and therefore, the bail came to be granted. Mr. Sarpande submitted that the case of the applicant stands on better footing than that of accused no.1. He further pointed out that only accused no.1 was found in possession of the drugs and the present applicant was not found in possession of any drug but he is implicated in the present case on the statement of accused no.1. 3 cr-appa-638-10 5 The learned APP submitted that the applicant had earlier preferred applications for bail which came to be rejected by this Court by orders dated 17.4.2009 and 21.8.2009. On perusal of the order dated 17.4.2009, it is noticed that the said application came to be withdrawn. On perusal of the order dated 21.8.2009, it is noticed that the said application was not considered on merits. Hence, this Court can consider the present application for bail. 6 Looking to the fact that the original accused no.1 has been granted bail and looking to the fact that the maximum sentence of imprisonment imposed on the applicant is ten years RI and the applicant has been in custody for nine years and eight months, I am inclined to grant bail to the applicant. 7 The applicant-Mohd. Kamil Mohd. Shabuddin be released on bail in the sum of Rs.25,000/- (Rs. twenty five thousand only) with one or two sureties to make up the said amount. The applicant is directed to report to the office of the NCB Mumbai once in a week till the disposal of the appeal. 8 Application is disposed of. [ SMT. V.K.TAHILRAMANI, J.]