IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.380 OF 2009 IN CRIMINAL APPEAL NO.154 OF 2007 Emmanuel Togo Malienne National .. Applicant V/s. Air Intelligence Unit & Anr. .. Respondents Mr.Atul Sarpande for the Applicant. Mr.H.V.Mehta for Respondent No.1. A.R.Shinde, A.P.P.for the State. CORAM : A.R.JOSHI, J. DATED : APRIL 27th , 2009. P.C. Heard rival submissions for some time. 2. It is an application for bail filed by sole accused for releasing him, during the pendency of appeal. Said appeal is already admitted, for the offences punishable under section 67 of NDPS Act. 1 The applicant accused was arrested when he was found in possession of 1991 grams of heroine from the bottles of liquid detergent soap at Ethiopian and Kenyan Airways by the officers of Air Intelligence Unit at Sahar Airport. 3. The applicant accused got tried for the offence punishable under section 8 (c) read with section 21 and 28 read with 23 of NDPS Act and convicted on 7th November, 2006 and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1 lac and in default to undergo further rigorous imprisonment for two months . Since arrest i.e. on 30th June, 2002 till today the applicant is in jail and almost 7 years of imprisonment out of 10 years. On this aspect the learned counsel for the applicant relied on the following authorities : “(2006) 1 SCC (Cri.)279 Mansingh V/s.Union of India (2007) 1 SCC (Cri.)370 Vijaysingh Chandubha Jadeja Criminal application NO.1380 of 2006 Judgment of Justice A.S.Oka of Bombay High Court, dated 14/3/2008 Mirza Qumer Hyder V/s.A.K.Thakker & Anr. Criminal application NO.1381 of 2006 Judgment of Justice A.S.Oka of Bombay High Court, dated 14/3/2008 Bhanudas More V/s.A.K.Thakker & Anr.” 2 It is submitted by learned Advocate Mr.Sarpande for the Applicant that only on this count of undergoing major parts of sentence and possibility of not taking up the matter for final hearing, the applicant may be released on bail. 4. Counter to the above, learned A.P.P. for the A.I.U. submitted that the ratio in the above authorities may not be applicable in the instant matter considering the specific circumstances that the applicant is a foreign national, arrested and convicted, there is every possibility that he may return to his country and may not be available during hearing of the appeal. It appears that as the matter is ready for final hearing, it will not be proper to release the applicant on bail, considering the possibility of non availability of the applicant during hearing of the appeal. 5. In order to consider the conviction for the offence punishable under NDPS Act in the opinion of this Court, the Criminal appeal can be expeditiously tried, however it cannot be a case of releasing of the accused on bail. Moreover, it may be noticed in the cited authorities of the Apex Court that, the accused came to be released on temporary bail during the pendency of such appeals. All the same, it is not the case in which only on the ground of undergoing 7 years imprisonment and conviction of 10 years, the 3 applicant can be released on bail. 6. In view of the above, there is nothing to grant bail to applicant original accused. Hence, application for bail is rejected. (A.R. JOSHI, J.) 4