Martin Kwulire v. The Intelligence Officer, N.C.B & Anr.

Shri Taraq Sayed for the applicant. Shri R.F. Lambay for Respondent no.1. Shri J.P.Yagnik APP for State. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 15TH FEBRUARY, 2008 DATED; 15TH FEBRUARY, 2008 DATED; 15TH FEBRUARY, 2008 P.C.; P.C.; P.C.;

By the present application, the applicant is seeking his release on bail.

The applicant is accused no.1 who is convicted for contravention of section 8(c) of NDPS Act 1985 for the offence punishable under section 29 of the said act and is sentenced to suffer R.I. for ten years and to pay a fine of Rs. one lakh. In default of payment of fine to suffer further R.I. for a period of six months. The applicant is also convicted for offence punishable under section 21 of the said act and is sentenced to suffer R.I. for ten years and to pay a fine of Rs. one lakh. In default of payment of fine to suffer further R.I. for a period of six months. The applicant is also convicted for offence punishable under section 23 read with 28 of the said act and is sentenced to suffer R.I. for ten years and to pay a fine of Rs. one lakh. In default of payment of fine to suffer further R.I. for a period of six months. The substantive sentences are to run concurrently.

During the pendency of the appeal in this court, the applicant has already completed the term of the substantive sentence. It is not disputed by the learned counsel for the respondent no. 1 that the applicant has already suffered ten years of substantive sentence. The applicant has also completed one month of sentence in default of payment of fine, as he cannot afford to pay the fine amount. In this peculiar facts, the present application for bail has been filed. It is not in dispute that section 37 of the NDPS Act is not applicable while considering the present application as the applicant had already undergone the substantive sentence of ten years and he is presently undergoing the sentence in default of payment of fine. The distinction between two sentences has been dealt with by the Supreme Court 2007 AIR S.C. weekly 6494. in a judgment reported in 2007 AIR S.C. weekly 6494. 2007 AIR S.C. weekly 6494. In view of the fact that section 37 is undisputedly not applicable for considering the present application and further in view of the fact that the applicant has undergone ten years of substantive sentence during the pendency of the appeal itself, I deem it appropriate to release the applicant on bail, subject to the applicant furnishing personal bond in the sum of Rs.50,000/-. The applicant shall furnish the particulars where he would be staying in Mumbai and the applicant shall not leave Mumbai till decision of the appeal. The applicant shall attend the office of respondent no.2 twice a month i.e. alternate Mondays.