Bail can be granted to undertrials in NDPS cases based on prolonged incarceration and delay in trial, in accordance with the principles established in the Supreme Court Legal Aid Committee case and subsequent decisions.

JUDGMENT :

ANISH DAYAL, J.

1. By this petition, the petitioner is seeking regular bail in FIR No. 26 of 2014, registered at PS Special Cell under Sections 21/29 NDPS Act.

2. The facts as per the FIR are that pursuant to an information received on 23rd June 2014, that Afghan nationals residing at Lajpat Nagar, Arhar colony and other places in Delhi were running a macrodrug cartel, informants were deployed at various places to identify these drug traffickers. Based upon subsequent specific information that there would be a collection of consignment of drugs opposite Oberoi Hotel flyover, Delhi, and pursuant to information being conveyed to the ACP, a raid was directed to be conducted. The information was lodged vide DD No. 15 at 2.45 p.m. and submitted before the Inspector in charge in compliance with Section 42 NDPS Act. Subsequently, when the reading team reached the spot, opposite Oberoi Hotel flyover, they found a private Maruti car parked on Lodi Road near Amir Khushro Park. One person came on foot from the park along with a black and grey colour bag and stood near a streetlight pole and was identified by the informer as Jumah Khan, a resident of Afghanistan (the petitioner herein). Later another person came who was identified by the informer as Arif Ali, a resident of Rajasthan. Both started talking to each other and the raiding party advanced and apprehended them. After due compliance of Section 50 NDPS Act, search of Arif Ali revealed a transparent polythene parcel containing heroin of about 50g. Subsequently, the petitioner was also searched and his black grey handbag was found having 72 capsules of heroin, found to be weighed 682g. Both the petitioner and Arif Ali were implicated for offences punishable under Sections 21/29 NDPS Act and a rukka was sent for registration of the case. During the investigation, samples were deposited at FSL Rohini and the expert opined that it was heroin. Charge-sheet was filed before the learned Trial Court on 10th December 2014. The supplementary charge sheets were filed on 21st July 2016 and 19th April 2018 (despite subsequently after the charges had been framed) and charges were framed in July 2015.

3. The learned counsel for the petitioner contended that the petitioner had been in custody since 23rd June 2014, and had been in custody as an undertrial for about 8 years and 5 months. This was also evident from the Nominal Roll on record of this Court. The learned counsel further contended that the trial was still to conclude and prosecution witnesses were yet to be examined, and therefore there was no guarantee of an expedited conclusion of the trial. In the meantime, the petitioner had already suffered 8½ years of incarceration, which was more than half the sentence that could be visited on the petitioner assuming that he would be convicted. Considering it was a commercial quantity of heroin, the minimum sentence that would be visited on the petitioner would be 10 years and a fine of 1 lakh. The learned counsel for the petitioner, in support of the plea of bail on the grounds of delay in trial and a long period of incarceration, relied on inter alia the following decisions of the Hon’ble Supreme Court and this Court:

Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731; Manoj Kumar Singh v. The State of West Bengal, SLP (Crl) No. 4711-4712/2020 vide order dated 06.10.2021; Anil Kumar v. State, 2022 SCC OnLine Del 778; Gurmito v. CBI, 2022 SCC OnLine Del 2316; Thana Singh v. Central Bureau of Narcotics, (2013) 2 SCC 603 and Rakesh Kumar Bhola v. Directorate of Revenue, 2022 SCC OnLine Del 3502.

4. Responding to the contentions raised by the counsel for the petitioner, the learned APP stated that that the prosecution was not at fault for the delay in trial and the charges having been framed, the petitioner could not get the benefit of section 37 NDPS Act considering the facts of the case. The learned APP also adverted to the decision by th