Undertrials charged under punitive statutes may be entitled to bail after five years of custody, emphasizing adherence to judicial precedents set in similar cases.

Headnote:(A) NDPS Act, 1985 - Section 21(1) - Bail eligibility - Petitioner charged under Section 29 of NDPS Act for abetting drug-related offences. Five years in custody meets eligibility for bail per Supreme Court Legal Aid Committee judgment - Important factors considered: length of custody leading to bail entitlement, relevance of past judgments. (Paras 3, 6, 7, 11)

(B) Appeal - Bail - Courts have followed a precedent allowing bail for undertrials having served five years or more in custody. Prosecution claims petitioner is a supply source and risks tampering with evidence if released. (Paras 4, 11)

Facts of the case:
The petitioner was arrested after an alleged transaction involving heroin. He has been in custody for over five years. Prosecution opposes bail, citing his active involvement in supplying drugs.

Findings of Court:
The court noted the eligibility of the petitioner for bail based on his custody duration and followed precedent for bail in such cases. Conditions for bail have been imposed.

Issues: Whether the petitioner is entitled to bail per the Supreme Court’s guidelines after five years in custody despite prosecution's claims against him.

Ratio Decidendi: The court reaffirmed that an undertrial charged under punishable offences as per the NDPS may be released on bail after five years of custody, emphasizing the importance of adhering to established legal principles and precedents in bail matters.

Result: Bail application permitted with conditions.

Table of Content
1. facts of the case regarding the arrest and charges. (Para 1 , 2)
2. parties' arguments for and against bail. (Para 3 , 4)
3. court's analysis on relevant legal precedents and implications. (Para 5 , 6 , 7 , 8 , 9 , 10)
4. final judgment granting bail with specified conditions. (Para 11 , 12 , 13)

JUDGMENT

Dinesh Kumar Sharma, J. (Oral)

CRL.M.A. 7300/2022 (exemption)

Exemption is allowed subject to all just exceptions.

Application stands disposed of.

BAIL APPLN. 1225/2022

1. Present application has been moved for regular bail in case FIR No.0040/2015 under Section 21 (1) of NDPS Act, 1985 registered at PS Special Cell.

2. Case of the prosecution is that on the basis of surveillance and intelligence inputs, accused Ram Pal was apprehended on 24.05.2015 and from his possession 1 kg heroine was recovered from the dickey of his motorcycle no. DL-13SG 2747. During the course of investigation accused Rampal disclosed that recovered heroine was purchased by him from the present petitioner namely Ved Prakash @ Mistri. On the basis of this information the petitioner was arrested on 25.05.2015. Subsequently, other accused persons namely Shabrati Shah @ Sabir and Shakir Ali were also arrested. After investigation, the charge sheet was filed against the accused persons and the charges were framed on 30.10.2017.

3. Learned counsel for the petitioner submits that as per the custody certificate issued by office of the Deputy Superintendent of Prison, Central Jail No.03, Tihar, New Delhi dated 31.12.2022, petitioner has undergone custody of 5 years, 3 months and 19 days. Learned counsel submits that since the custody of the petitioner is of more than 5 years, he is entitled to be admitted to bail in view of the judgment of the Supreme Court in Supreme Court Legal Aid Committee vs. Union of India, (1994) 6 SCC 731. Learned counsel submits that coordinate benches of this court have followed the judgment of the supreme court and granted bail to the persons whose custody in cases are beyond five years. Reliance has been placed upon the order dated 07.09.2022 in Bail Appln. No.1182/2022 titled Jagannath vs. State (NCT of Delhi), order dated 24.11.202 in Bail Appln.2737/2022 titled Nabi Alam @ Abbas vs. State (Govt. of NCT of Delhi) and judgment dated 14.12.2022 in Bail Appln.2630/2022 titled as Johri vs. State (NCT of Delhi).

4. Learned APP for the state has submitted that the petitioner is a source of supply of heroine and has actively participated in the commission of the offence in the present case. It has been submitted that charge under 29 NDPS Act has already been framed. Learned APP submits that if the accused is released on bail he may not be available for trial.

5. I have considered the submissions and perused the record.

6. In Supreme Court Legal Aid Committee (supra), it was inter alia held as under:

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 Ac