P. K. MISRA, J. ( 1 ) THIS is an application under S. 459 of the Code of Criminal Procedure (hereinafter referred to as the " Cr. P. C. " ). ( 2 ) THE petitioner is in jail custody since 7-5-1992 on the allegation that he has committed offence under S. 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "n. D. P. S. Act" ). It is alleged that the petitioner along with another accused person was found in possession of brown sugar. The petitioner had earlier filed Crl. Misc. Case No. 3404 of 1995 which was withdrawn by the petitioner for the purpose of filing another application before the trial Court on the ground of contravention of S. 167 (2), Proviso, of the Cr. P. C. The subsequent bail petition of the petitioner having been rejected by the Addl. Sessions Judge on 1-2-1996, the petitioner filed Cri. Misc. Case No. 813 of 1996. The said application was dismissed on technical ground as wrong case number had been indicated and thereafter the present bail application has been filed. ( 3 ) AT the threshold it was submitted on behalf of the learned standing counsel that the previous applications for bail filed by the petitioner having been rejected on earlier occasions, the present application could not be entertained. The submission of the learned standing counsel is unacceptable. As earlier indicated, the first bail application by the petitioner numbered as Cri. Misc. Case No. 3404 of 1995 was withdrawn to enable the petitioner to file a fresh application before the trial Court. The subsequent bail application numbered as Cri. Misc. Case No. 813 of 1996 was not dismissed on merit but on a technical ground and opportunity had been given to the petitioner to file fresh application giving the correct case member. Moreover, law is well settled that rejection of a bail application at an earlier stage does not preclude an accused person to file a fresh application, keeping in view the change in circumstances. ( 4 ) THE learned counsel for the petitioner first submitted that the co-accused Viswajit Pande having been released on bail, the petitioner against whom similar allegations have been made may be released on bail. ( 4 ) THE learned counsel for the petitioner first submitted that the co-accused Viswajit Pande having been released on bail, the petitioner against whom similar allegations have been made may be released on bail. On perusal of various materials on record including the previous cases, it appears that the said co-accused was released on bail by applying the provision of S. 167 (2), Proviso, of the Cr. P. C. Though it is reasonable to expect that the two co-accused persons similarly situated should be treated alike as far as practicable. It is not an inexorable rule. If the co-accused person would have been released on bail on merit, I would have considered such a plea of the present petitioner. Since the co-accused person was released on the ground of non-compliance of S. 167 (2), Proviso, of the Cr. P. C. I am not inclined to accept this submission. The learned counsel for the petitioner faintly raised the question of applicability of S. 167 (2), Proviso, of the Cr. P. C. to the facts of the present case, but in view of the decision of the Supreme Court reported in (1996) 10 OCR (SC) 265 : (1996 Cri LJ 1652), Dr. Bipin Shantilal Panchal v. State of Gujarat, he abondoned such an argument. As has been held in the aforesaid decision of the Supreme Court, since the right of petitioner to avail of the provision of 167 (2),proviso, of the Cr. P. C. has not been exercised, the petitioner is not entitled to be released on bail, applying the said provision at this stage, as charge sheet has already been filed. ( 5 ) THE learned counsel for the petitioner then submitted that in the absence of any prima facie case and since the mandatory provisions of Ss. 42 and 50 of the N. D. P. S. Act have not been complied with, the petitioner should be released on bail. Keeping in view the embargo imposed under S. 37 of the N. D. P. S. Act and the materials on record, I am not in a position to accept this submission of the learned counsel for the petitioner. ( 6 ) LASTLY, it is submitted that the petitioner is in custody for more than four years and he should be released, as trial has been unduly delayed. ( 6 ) LASTLY, it is submitted that the petitioner is in custody for more than four years and he should be released, as trial has been unduly delayed. In the case of Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, (1995) 8 OCR (SC) 1 : (1994 AIR SCW 5115), it has been held that a person in custody for more than half the period of the prescribed punishment, may be released on bail. In the present case, the petitioner has been in actual custody for about four years and three months and since the minimum punishment prescribed under S. 21 of the N. D. P. S. Act is ten years, literally interpreted, the said decision may not be applicable. The question of taking into account the possible period remission under the Cr. P. C. does not arise in cases under the N. D. P. S. Act in view of the specific provision contained in S. 32-A. Strictly speaking, therefore, the ratio of the decision of the Supreme Court is also not applicable. However, in the peculiar circumstances of this case, as indicated hereunder, I am inclined to release the petitioner on bail. The petitioner is a young man and as per the prosecution case he had become a drug-addict. It is reasonable to assume that during this period of more than four years in jail, he must have kicked his bad habit. It has been submitted that he is the sole bread earner of his family. Though the charge sheet had not been filed in the stipulated period, the petitioner could not avail of the said right, possibly because there was a lot of doubt regarding the applicability of the provision of S. 167 (2), Proviso, of the Cr. P. C. to the accused persons alleged to have committed offences under the N. D. P. S. Act. Thereafter, by the time the petitioner thought of availing the said right, the subsequent decision of the Supreme Court was in the field. The co-accused person has been released on bail by applying the provision of S. 167 (2), Proviso, of the Cr. P. C. obviously because he had availed of the opportunity and filed the application at the proper time. The co-accused person has been released on bail by applying the provision of S. 167 (2), Proviso, of the Cr. P. C. obviously because he had availed of the opportunity and filed the application at the proper time. Keeping in view the aforesaid special circumstances and the liberal spirit of the decision reported in (1995) 8 OCR (SC) 1 : (1994 AIR SCW 5115), I direct that the petitioner may be released on bail of Rs. 1,00,000/- (one lakh rupees) with the sureties each for the like amount to the satisfaction of the Additional Sessions Judge, Bhubaneswar. In connection with S. T. case No. 26/248/93 subject to the following other conditions :- (i) The petitioner shall deposit his passport, if any, with the Additional Sessions Judge and if he does not hold a Passport, he shall file an affidavit to that effect and the Additional Sessions Judge if has reason to doubt the accuracy of the affidavit may write to the concerned passport Officer to verify the statement and to send a reply within three weeks and if no reply is received within the said time, he may act on the affidavit of the petitioner; (ii) The petitioner on being released on bail shall present himself at Sahidnagar Police Station once a week on every Sunday between 4 p. m. and 7 p. m. , unless leave of absence is obtained in advance from the Additional Sessions Judge; (iii) The petitioner shall not leave the Bhubaneswar municipal area without prior permission of the Addl. Sessions Judge; (iv) Unless his presence is otherwise dispensed with by the trial Court, the petitioner should attend the said Court on each and every date to which the case is posted; and (v) The Addl. Sessions Judge is at liberty to cancel the bail if any one of the above conditions is violated or a case for cancellation of bail is otherwise made out. The Criminal Misc. Case is disposed of accordingly. Order accordingly.