The main legal point established in the judgment is the application of the 'Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India' principles to determine bail eligibility based on the duration of custody and the nature of the offense under the NDPS Act.

JUDGMENT

Dinesh Kumar Sharma,J.

1. Present bail application has been filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.) seeking regular bail in SC/534/2018 in FIR no.68/2018 registered under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), PS Crime Branch North.

2. Briefly, the facts of the case are that on 10.3.2018 at about 12:00 pm; at SI Office STARS/Crime Branch, Sector-8, R.K. Puram, New Delhi a secret information was received that a person named Paragan Ram from Phillaur, Punjab i.e. the current petitioner; smuggles drugs between Delhi and Punjab and on that day itself, i.e. on 10.3.2018 at about 3 o'clock the petitioner will come to the GT Karnal Road, ahead of Mukarba Chowk to deliver large quantity of heroin drug on route from Delhi to Karnal.

3. On the basis of this information a raiding party was constituted. The raiding party took the position near Madhuban on Karnal-Delhi Road between the two IGL CNG Pumps. The raiding party also asked public persons to join as independent witnesses but none of the public persons agreed.

4. It has been alleged that at around 3.30 p.m., the petitioner arrived there and was identified as Pargan Ram @ Nikka by the informer. The raiding party approached the petitioner and Sub Inspector informed him his rights and a notice under Section 50 NDPS Act was served. The search was conducted resulting in the recovery of a white coloured bag filled with 400 gms of brown coloured powder in a transparent polythene pouch wrapped on his wrist. When asked about the article recovered, the petitioner did not give any satisfactory reply. The article, upon checking with the Field Drugs Testing Kit, was found to be Heroin drug. The samples were taken and were kept in sealed in accordance with the legal process. The petitioner was arrested and after investigation, the charge sheet was filed. The matter is at the stage of trial.

5. Learned counsel for the petitioner submits that the accused is in custody since 10.03.2018. Learned counsel submits that de-hors merits of the case, the petitioner is entitled to be admitted to bail in view of the judgment of the Supreme Court in "Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India" (1994) 6 SCC 731.

6. Learned APP for the State has opposed the bail application on the ground that the allegation against the petitioner is very serious in nature. The petitioner was found in possession of 400 gms. of heroine drug. It has further been submitted that in case the petitioner is granted bail, he may not be available for the trial. Learned APP has also submitted that the petitioner may also threaten or intimidate the witnesses.

7. In "Supreme Court Legal Aid Committee representing Undertrial Prisoners (supra), it was inter alia held as under:

"15........ (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 or like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten year