Prolonged pre-trial detention infringes on the right to personal liberty under Article 21, necessitating bail when an accused has languished in custody beyond half the maximum sentence duration.

JUDGMENT

Jasmeet Singh, J. (Oral)

1. This is an application seeking release of applicant on regular bail till final disposal of CBI EO-II EOU-V New Delhi registered by Central Bureau of Investigation in connection with FIR No. RC 220/2016/E0022/CBI/EO-II u/s 20 read with Sec 8 and 29 of NDPS Act, 1985 (hereinafter "Act") registered by CBI dated 17.12.2016, giving rise to filing of charge sheet no. 2/2017 dated 31.03.2017.

2. It is submitted by Mr. Natrajan, learned counsel for the applicant that the applicant has been in judicial custody since 18.12.2016 except for a period of 20 days (16.06.2021 to 06.07.2021) and she is covered by judgement of Hon'ble Supreme Court in Supreme Court Legal Aid Committee (Representing undertrial prisoners) vs. Union of India, (1994) 6 SCC 731.

3. The Ld. Counsel for the Applicant submits that in terms of this judgment where an undertrial prisoner is charged with an offence under the Act with minimum imprisonment of 10 years and minimum fine of 1 lakh, such an undertrial prisoner may be released on bail if he has been in jail for not less than 5 years subject to conditions prescribed in the said judgment.

4. Mr. Bhardwaj, learned counsel for the respondent states that the observations of the Hon'ble Supreme Court were only a one time measure passed in peculiar circumstances of that case, where the NDPS Courts were not functioning within the State of Maharashtra at that point in time.

5. Per contra, Mr. Natrajan has drawn my attention to a judgement dated 21.03.2022 passed in Bail Appl. 1724/2021 in Anil Kumar v. State by a coordinate bench of this Court, wherein this Court has held:

"12. A bare perusal of paragraph 16 indicates to this Court that the directions were not meant to be employed as one-time directions in the said case, but were meant to apply as a one- time measure in all cases in which the accused persons were in jail and their trials had been delayed. The intention of paragraph 16 was to convey that despite the absence or presence of delay in trial in a case, the Special Court was still free to exercise its power to grant bail under Section 37 of the NDPS Act. Furthermore, if the Special Court also retained the power to cancel bail if the accused was found to be misusing the same. The directions were certainly not, as the learned APP has submitted, meant to only apply in the case therein, but were directions that were to be followed by Courts in all cases pertaining to NDPS wherein the accused had been subjected to prolonged delay in their trials.

6. In the present case, as already observed, the applicant was arrested in 2016. She has been in custody for 5 and a half years.

7. It is stated that despite passage of 5 years 6 months, only the first witness is under examination out of the list of 33 witnesses.

8. A coordinate bench of this Court in another case titled Atul Aggarwal v. Directorate of Revenue Intelligence, (2021) SCC OnLine Del 5489 has observed:

"12. However, it is also pertinent to note that the Applicant herein was arrested on 20.07.2012. It has been nine years since he has been in custody. While remaining conscious of the fact that the gambit of drug trafficking must be deterred with stringent punishments, and that those who indulge in such nefarious activities do not deserve any sympathy, Courts must also n