The court retains discretion to grant bail pending appeal even if the accused has not served half of the sentence, emphasizing the protection of rights under Article 21.

JUDGMENT :

(Abhay S. Oka, J.)

1. Leave granted.

2. Heard Shri S.V. Raju, learned ASG appearing for the appellant.

3. By the impugned order, the High Court has granted relief of suspension of sentence and bail to the respondent/accused pending an appeal against the conviction. The respondent was convicted for an offence punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”). The substantive sentence of the respondent is 10 years of rigorous imprisonment. In the appeal of the year 2021, the High Court noted that the respondent had undergone incarceration for a period of 4 ½ years out of the fixed term sentence of 10 years. As the appeal was not likely to be heard before the completion of the sentence, the High Court granted relief of suspension of sentence and bail to the respondent.

4. The learned ASG relies upon a decision of this Court in the case of the Supreme Court Legal Aid Committee representing Undertrial Prisoners vs. Union of India & Ors., (1994) 6 SCC 731 He submitted that, as laid down in the decision, unless the respondent had undergone a sentence for the one-half period, he was not entitled to bail pending the final hearing of the appeal against conviction. This is so when he is already held guilty of the offence punishable under the NDPS Act.

5. The relevant part of paragraph 15 and paragraph 16 of the said decision read thus:

“15. ... We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order.

The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;

(ii) the undertrial accused shall on