Uday Kumar Abhevardhan vs. The Union Of India

Order - Status 6: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.113 OF 2010 IN CRIMINAL APPEAL NO.388 OF 2007 Uday Kumar Abhevardhan .. Petitioner -versus The Union of India and anr .. Respondent Mr. Anil Lalla i/b Lalla and Lalla for the Petitioner Mrs. Revati Mohite Dere for the union of India CORAM: V. M. KANADE, J. DATED: 23rd March, 2010 P.C. vks This is the second Application for bail. The first bail application rejected by this Court (Coram: A.M. Khanwilkar, J.). Therefore it is appropriate that this application be placed before the same Court. The Office to take steps. ( V.M. KANADE, J.)

Order - Status 8: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.113 OF 2010 IN CRIMINAL APPEAL NO.388 OF 2007 ...... ...... Uday Kumar Abhevardhan ...Applicant Versus Union of India & Anr. ...Respondents Mr.Shankar Dhoble i/b M/s.Lalla & Lalla for Applicant. Ms.Revati Mohite Dere for Respondent No.1. CORAM:- A.M.KHANWILKAR, J. DATED :- APRIL 16, 2010. P.C. I am informed that Mr.Anil Lala is in personal difficulty. Request for adjournment is made. Stand over to 30th April 2010 at 3.00 p.m. (A.M.KHANWILKAR, J.)

Order - Status 10: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 113 of 2010 IN CRIMINAL APPEAL NO. 388 of 2007 Uday Kumar Abhev Ardhan ....Petitioner Vs. Union of India & anr. ....Respondents Mr. Sunil Gadre i/b. Anil Lalla i/b. M/s. Lalla & Lalla for the applicant. Ms. S.V.Gajare-APP for the State. Smt. Revati Mohite Dere, advocate for respondent no.1. CORAM:- A.M.KHANWILKAR, J DATED:- MAY 07, 2010 P.C. Request for adjournment is made on the ground that Mr. Lalla, advocate for the applicant is unavailable. Stand over to 11th June, 2010 at 3.00 p.m. (A.M.KHANWILKAR, J)

Order - Status 14: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.113 OF 2010 IN CRIMINAL APPEAL NO.388 OF 2007 Uday Kumar Abhev Ardhan. ....Applicant. Vs. Union of India & Anr. ....Respondents. Mr.Anil Lalla i/b. M/s. Lalla & Lalla for the applicant. Smt. Revati Mohite Dere for Respondent No.1. Mr.S.V.Gajare, APP for the State. CORAM:- A.M.KHANWILKAR, J DATED:- JUNE 11, 2010 P.C. Heard Counsel for the parties. S Present application is filed on the sole ground that the applicant has already undergone more than 6 years and 11 months of imprisonment when the application was filed. The fact that the applicant's prayer for bail was considered on merits and rejected by this Court on 7th April, 2008 while deciding Criminal Application No.950 of 2008 is not disputed. The applicant has been convicted for the offence punishable under section 21(c) r/w sec.8(c) of the N.D.P.S. Act and sentenced to suffer R.I. for 10(ten) years and to pay fine of Rs. 1,00,000/-(Rupees one lakh only) in default to suSffer further R.I. for one year. The fact that the applicant as of now has undergone 7 years of imprisonment is not in dispute. The question is whether inspite of mandate of section 37 of the N.D.P.S. Act, the Court can show indulgence to the applicant on the ground that he has undergone substantive part of sentence. In this case, the sentence undergone is over 7 years out of 10 years of Rigorous Imprisonment. To buttress the contention, the learned Counsel for the applicant has essentially relied on the decision of the Apex Court in the case of Mansingh V/s. Union of India (2006) 1 SCC (Cri.) 279, which was decided by the Apex Court on September 27, 2004. Indeed, in that case the appellant was held guilty of the offence punishable under sections 8/18 and 8/15 of the N.D.P.S. Act, 1985 and directed to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lakh on each count. The Apex Court considering the fact that the Appellant before it had undergone more than 7 years of imprisonment, released the appellant on bail. It is noticed that the said order has been passed by the Apex Court in the pending appeal filed by the Accused to question the order of conviction and sentence before the High Court. The question is: whether this order can be treated as a binding precedent. The learned APP has rightly invited my attention to the subsequent decision of the Apex Court in the cases of Union of India V/s Rattan Malik alias Habul (2009) 2 SCC 624, Ratan Kumar Vishwas V/s. State of U.P. & Anr. 2008 AIR SCW 7719 and Union of India v/s. Shiv Shanker Kesari(2009) 3 SCC(Cri) 505 . These decisions have expounded the sweep of section 37 of the Act. The mandate of section 37 of the Act applies on all fours to the situation where the person is in custody as under trial prisoner or for that matter at the stage of appeal before the High Court. Going by the said mandate, it is not possible to countenance the stand of the applicant that since he has undergone substantial part of the sentence should be released on bail only on that consideration. My attention has already been invited to the said decisions of our High Court in the case of Pritam Namdeo v/s. Union of India and Anr. decided on 23rd March, 2010 in Criminal Application No.1 of 2010 in Criminal Appeal No.394 of 2007 as well as in the case of Aniruddh Chavan vs. The Union of India & Anr . in Criminal Application No.433 of 2009 in Criminal Appeal No.618 of 2008 decided on January 21, 2010. Similar argument has been considered and rejected. I am in agreement with the opinion expressed in the said decisions. The Counsel for the applicant however, placed reliance on recent decision of another Single Judge of our High Court in Criminal Bail Application No. 854 of 2009 in Criminal Appeal No.1253 of 2008 decided on March 9, 2010. With utmost respect, it is not possible to place reliance on this decision to uphold the contention of the applicant. For, the said view is only on the basis of Mansingh's case (supra) . This Court would be bound by the subsequent decisions of the Apex Court which have restated the settled legal position about the sweep of section 37 of the Act. Further, the order in the case of Mansingh(supra) pressed into service may be ascribable to the inherent powers of the Apex Court under Article 142 of the Constitution of India. Suffice it to note that the said decision has not decided the case with reference to the sweep of section 37 of the Act, which aspect has been considered in the subsequent decisions of the Apex Court. Keeping in mind the mandate of section 37, it is not open for this Court to carve out further exception to section 37 of the Act, which would inevitably result in rewriting of the said section. In other words, merely because the applicant has already undergone substantial part of the sentence, by itself cannot be the basis to release him on bail. In the circumstances, taking over all view of the matter, this application should fail. The same is rejected. (A.M.KHANWILKAR, J)