Completion of 1/3rd of a maximum sentence does not automatically entitle a first-time offender to bail; statutory provisions and precedents dictate strict criteria for drug-related offences.

JUDGMENT :

Tarlok Singh Chauhan, J.

By medium of this application under 1^st Proviso to Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (in short B.N.S.S) the applicant has sought release on regular bail on the ground of having completed more than 1/3^rd incarceration/ sentence of the maximum sentence awarded under Section 20 (1) Cof the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.& P.S.Act).

2. Heard. It is not in dispute that the applicant has completed 1/3^rd of the sentence as submitted in the application. However, the moot question is whether solely on account of having completed 1/3^rd of the sentence, the applicant would be entitled to bail.

3. Learned counsel for the applicant has placed reliance upon order passed by a Division Bench of this Court, in Cr.M.P. No.3672 of 2024 in Criminal Appeal No.137 of 2023 decided on 14.10.2024, in which one of us (Justice Tarlok Singh Chauhan) was a member, wherein this court had granted bail only on the ground that the applicant therein had undergone more than 1/3^rd of the sentence. It shall be apt to reproduce paras 4 to 7 thereof, which read as under:-

“4. We have heard the learned counsel for the applicant/appellant as well as learned Additional Advocate General and have also gone through the material available on record.

5. In Satender Kumar Antil vs. Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the provisions of Section 436A, Cr.P.C., the Hon’ble Apex Court held as under:-

“63. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word ‘trial’ will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 64. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded…..”

6. Section 436-A of Cr.P.C. has now been replaced by Section 479 of the BNSS , the relevant portion whereof reads as under:-

“479. Maximum period for which undertrial prisoner can be detained. – (1) Where a person has,