JUDGMENT : MP No.01/2016 1. Through the medium of instant miscellaneous petition, applicants/appellants seek grant of bail on the ground that although the appeal stands admitted by this Court but no response to the MP No.45/2011 seeking suspension of sentence and grant of bail has been filed by the State till date. 2. It is submitted that the applicants were arrested on 21st February, 2010 and throughout the trial, they remained in custody and were never released on bail. As such, the applicants have been behind the bars for more than six years. As per the latest amendment in the Criminal Procedure Code, a right has accrued to the applicants in the shape of bail as they have spent more than half of the sentence behind the bars. It is also submitted that keeping in view the pendency of huge number of cases, there is no possibility of the appeal being finally heard in near future. Applicants seeks grant of bail on the conditions whatever this Court deems fit in the facts and circumstances of present case. 3. Objections stand filed on behalf of the State stating therein that a strong prima facie case is made out against the applicants. It is stated that the applicants have been convicted under Section 8/21/23 NDPS Act having in possession of commercial quantity of Diacetyl-Morphine (Heroin). The offence is against the ethics of the society and heinous in nature and also the growing menace of drug trafficking in the society needs a check by putting a strong hand, as such, the applicants have no right to seek bail. Learned State Counsel, therefore, prays for dismissal of the bail application moved by the applicants. 4. From the perusal of challan, it reveals that army personnel of 19 Sikh Regiment stationed on Indo-Pak border under the jurisdiction of P/S Khour filed written report on 21.02.2010 with P/S Khour alleging thereby that two individuals namely Yash Paul S/o Parkash Chand, age 32 years, and Arjun Singh S/o Rattan Singh, both residents of Amirpur were caught moving suspiciously at the border area carrying thailas. On instant search of two individuals 7 packets of heroin were recovered from Yash Paul and 8 packets of heroin and 1 packet of Opium was recovered from Arjun Singh and accordingly the police agency was requested to take necessary legal action under law. On instant search of two individuals 7 packets of heroin were recovered from Yash Paul and 8 packets of heroin and 1 packet of Opium was recovered from Arjun Singh and accordingly the police agency was requested to take necessary legal action under law. They also produced the seizure recorded by Major Adjutant PW Rahul Aggarwal that was countersigned by the Commanding Officer of 19 Bn. Sikh Regiment. Upon receipt of this information case FIR No.12/2010 u/s 8/21/23 NDPS Act came to be registered on 21.02.2010. I.O. proceeded on spot, recorded spot map. During investigation the seized packets were re-seized and upon weighing the packets recovered from Yash Paul total weight of the material so seized from him happens to be 7 kg 103 grams and that of Arjun Singh happens to be 7 kg 927 grams besides one opium packet weighing 1.40 kg in presence of witnesses, requisitioned Inspector Legal Metrology Akhnoor for weighing of samples and accordingly the said officers withdrew 30 grams from each pack weighing 450 grams (white substance), 30 grams (brown substance) was drawn from one another pack for the purpose of analysis. Each of the samples were sealed and numbered as IA/IB/IC/ID/IE/IF/IG A1, A-2, A-3, A-4, A-5, A-6 and A-7 respectively and as regards the sample drawn from packets pertaining to Arjun Singh they were marked with seal as IH/II/IK/IL/IM/IN/IO B-1, B-2, B-3, B-4, B-5, B-6, B-7 and B-8. Besides, sample (brown powder) was sealed and marked with seal as I-P/C1 where-after, the remnant was kept in the Malkhana, the samples were later got re-sealed before Tehsildar Executive Magistrate First Class, Akhnoor and re-sealed with brass seal and put specimen mark (LAB/54) which material later on was sent to FSL Jammu for expert opinion, who opined that exhibit 1-A to 1-O was detected as Diacetyl-Morphine (Heroin) whereas, sample IP was detected as Opium which both are stated to be narcotic substance. During investigation it further came to be noticed that the consignment had been dropped near border by one Devi Singh S/o Ravail Singh R/o Badoni Rattan, Tehsil Akhnoor on 19.02.2010 who passed on information to Yash Paul requiring him that all the packets containing heroin/opium be transported by him against consideration of Rs.40,000/-. During investigation it further came to be noticed that the consignment had been dropped near border by one Devi Singh S/o Ravail Singh R/o Badoni Rattan, Tehsil Akhnoor on 19.02.2010 who passed on information to Yash Paul requiring him that all the packets containing heroin/opium be transported by him against consideration of Rs.40,000/-. On this accused-Yash Paul in company of accused-Arjun Singh lifted the consignment from the specified place near zero point which consignment of 16 packets was recovered by the Army jawans from them who used to search the inhabitants of the locality who after performing farming activities during day would return back home and both the accused were found carrying such packets. 5. The appellants-accused faced the trial before learned 3rd Additional Sessions Judge, Jammu and after conclusion of trial, they were convicted and sentenced to undergo rigorous imprisonment of ten years and fine of Rs. One lac each for offence under section 8/21(C) of NDPS Act. After their conviction and sentence, appellants have filed Criminal Appeal No.31/2011, which is pending before this Court for final argument. 6. I have heard learned counsel for both the sides and considered the law on the subject. 7. From the perusal of challan, it also reveals that the appellants-accused are in custody since 21.02.2010. In this way, accused are languishing in jail for more than seven years. 8. In case titled ‘Mithu Pasi and Anr. Vs. State of Jharkhand’ 2016 (8) Scale 654, it is held as under:- “Criminal Procedure Code, 1973 Section 389 Indian Penal Code, 1860 Section 326 Sentence-Suspension of-Appellant inflicted injury with knife on victim-Already undergone 6 years imprisonment without remission out of ten years awarded-Just and proper to direct suspension of remaining sentence.” 9. In case titled ‘Thana Singh Vs. Vs. State of Jharkhand’ 2016 (8) Scale 654, it is held as under:- “Criminal Procedure Code, 1973 Section 389 Indian Penal Code, 1860 Section 326 Sentence-Suspension of-Appellant inflicted injury with knife on victim-Already undergone 6 years imprisonment without remission out of ten years awarded-Just and proper to direct suspension of remaining sentence.” 9. In case titled ‘Thana Singh Vs. Central Bureau of Narcotics’ 2013 AIR (SCW) 800, it is held as under:- “Narcotic Drugs and Psychotropic Substances Act, 1985-Criminal Procedure- Bail in NDPS case- Delay in Trial- Appellant was languishing in jail for more than 12 years, awaiting, even the commencement of his trial for an offence under NDPS Act and he consistently denied bail, as noted, even by the High Court- Court took serious note of the fact that the maximum punishment for the offence in question is incarceration for 20 years, hence the undertrial remained in detention for a period exceeding 1/2 of the maximum period of imprisonment, in the light of Section 37 of the Act, stated to be against the express pronouncement of it in Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors., (1994) 6 SCC 731 - Court not only granted the bail deserved by appellant-Thana Singh, but in a view to ensure that in future no undertrial under NDPS Act is made to suffer such an anguish and plight, issued several directions.” 10. Hon’ble Supreme Court in case ‘Bhim Singh Vs. Union of India and ors.’ 2016 (1) SCC (Cri) 663, it is held that ‘under trial prisoners who have completed half of maximum sentence for which they were arrested not be detained in jail’. 11. In view of the above, I am inclined to enlarge the applicants/appellants on bail, subject to the following conditions:- (a) That the applicants/appellants shall furnish personal bond in the amount of Rs. One lac each with two sureties each of like amount to the satisfaction of the Registrar Judicial of this Court. (b) The applicants/appellants shall not leave the State of Jammu and Kashmir without permission of this Court. (c) The applicants/appellants shall appear before this Court on each and every date of hearing. Accordingly, the application is allowed.