The court established that an appellant who has served more than half of their sentence and has satisfactory jail conduct may be granted bail during the appeal process.

O R D E R

CRL.M.(BAIL) 1405/2023

1. An application under Section 389 read with Section 482 of the Code of Criminal Procedure, 1973 („ Cr.P.C .‟) has been preferred on behalf of appellant for suspension of sentence and release on bail during pendency of appeal in FIR No. 0098/2017 under Section 21/25/29 of NDPS Act registered at P.S. Crime Branch.

2. Appellant has been convicted vide judgment dated 06.09.2023 and sentenced vide order dated 16.09.2023 to undergo Rigorous Imprisonment (RI) for ten years and fine of Rs. 1,00,000/- (in default of payment of fine to undergo SI for 06 months) for offence punishable under Section 21(c) of NDPS Act.

3. Learned counsel for appellant submits that appellant has been convicted for possession of 260 grams of Heroin, which is just above the CRL.A. 841/2023 Page 1 of 3 threshold commercial quantity of 250 grams. He further submits that appellant has already undergone more than half of the sentence and disposal of appeal is likely to take some time.

4. On the other hand, learned APP for State opposes the application. However, she does not dispute the proposition of law as laid down in “ Sonadhar vs. The State of Chhattisgarh ”, S.L.P. (CRL.) No. 529/2021 .

5. As per nominal roll, as on 05.12.2023, appellant has already undergone custody of 06 years 01 month 07 days and unexpired portion of sentence is 03 years 10 months 23 days. Appellant is further stated to be in custody for a period of 09 months. Further, as per nominal roll, appellant has no other involvement and the jail conduct of the appellant is satisfactory.

6. Hon‟ble Supreme Court in “ Sonadhar vs. The State of Chhattisgarh ”

(supra), observed as under :

“ b) The Delhi High Court Legal Services Committee would take up cases for those convicts who have undergone more than half the sentence in case of fixed term sentences and examine the flexibility of filing a bail application before the High Court”

7. It cannot be ignored that appellant has undergone incarceration for a period of more than half of the maximum period of the sentence. The disposal of the appeal is likely to take some time. The valuable right of appeal may turn out to be illusory in case the appellant is required to undergo the complete sentence as imposed by the learned Trial Court during the pendency of the appeal itself. It may be noticed that in Saudan Singh vs. State of UP, 2021 SCC OnLine SC 3259 , it has been observed that the broad parameter of 50% of the actual sentence undergone can be the basis for grant of bail. Also, it has been observed in Satender Kumar Antil vs. Central Bureau of Investigation and Another, 2022 LiveLaw SC 577 , that the CRL.A. 841/2023 Page 2 of 3 period of custody for purpose of Section 436A Cr.P.C . includes the custody during investigation, inquiry and trial. Also, trial will have to be given an expanded meaning particularly when an appeal or admission is pending.

Considering the facts and circumstances and without expressing any opinion on the merits of the appeal, the sentence of the appellant is suspended during the pendency of appeal and is admitted to bail on furnishing a personal bond in the sum of Rs. 50,000/- (Rupees Fifty Five Thousand only) with one surety in the like amount to the satisfaction of the learned Trial Court, subject to following conditions:

(i) Appellant shall provide his mobile number to the Investigating Officer (IO) / SHO concerned at the time of release;

(ii) In case of change of address, appellant shall intimate / communicate his fresh address to the IO / SHO concerned as well as learned Trial Court.

(iii) Appellant is directed to appear before this Court as and when directed.

Application is accordingly disposed of.

A copy of this order be forwarded to Superintendent Jail and learned Trial Court for information and compliance.

CRL.A. 841/2023 List in due course.