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JUDGMENT

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1640 OF 2010

THANA SINGH

—

APPELLANT

VERSUS

CENTRAL BUREAU OF NARCOTICS

—

RESPONDENT

O R D E R

1. This order, and its accompanying directions, are an outcome of

the bail matter in Thana Singh Vs. Central Bureau of

Narcotics listed before this bench, wherein an accused, who

had been languishing in prison for more than twelve years,

awaiting the commencement of his trial for an offence under

the Narcotics Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as the “NDPS Act”), was consistently

denied bail, even by the High Court. Significantly, the maximum

punishment for the offence the accused was incarcerated for, is

twenty years; hence, the undertrial had remained in detention

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for a period exceeding one-half of the maximum period of

imprisonment. An express pronouncement of this Court in the

case of

Supreme Court Legal Aid Committee

Representing Undertrial Prisoners Vs. Union of India &

Ors.¹, which held that “where the undertrial accused is

charged with an offence(s) under the Act punishable with

minimum imprisonment of ten years and a minimum fine of

rupees one lakh, such an undertrial shall be released on bail if

he has been in jail for not less than five years provided he

furnishes bail in the sum of rupees one lakh with two sureties

for like amount”, finds constrained applicability in respect of

cases under the NDPS Act, in light of Section 37 of the Act.

Therefore, this Court in Achint Navinbhai Patel Vs. State of

Gujarat & Anr.² observed that “it has been repeatedly

stressed that NDPS cases should be tried as early as possible

because in such cases normally accused are not released on

bail.”

1 (1994) 6 SCC 731

2 (2002) 10 SCC 529

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2. We are reminded of Justice Felix Frankfurter’s immortal words

in Antonio Richard Rochin Vs. People of the State of

California³, coincidentally a case pertaining to narcotics,

wherein he described some types of conduct by state agents,

although not specifically prohibited by explicit language in the

Constitution, as those that "shock the conscience" in that they

offend "those canons of decency and fairness which express the

notions of justice." Due process of law requires the state to

observe those principles that are "so rooted in the traditions

and conscience of our people as to be ranked as fundamental."

The general state of affairs pertaining to trials of offences under

the NDPS Act deserves a similar description.

3. The laxity with which we throw citizens into prison reflects our

lack of appreciation for the tribulations of incarceration; the

callousness with which we leave them there reflects our lack of

deference for humanity. It also reflects our imprudence when

our prisons are bursting at their seams. For the prisoner

himself, imprisonment for the purposes of trial is as ignoble as

3 96 L. Ed. 183 (1951)

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imprisonment on conviction for an offence, since the damning

finger and opprobrious eyes of society draw no difference

between the two. The plight of the undertrial seems to gain

focus only on a solicitous inquiry by this Court, and soon after,

quickly fades into the backdrop.

4. Therefore, bearing in mind the aforesaid imperatives, after

granting the deserved bail in that case, we decided to take

cognizance of status quo and gain a first-hand account about

the state of trials in such like cases pending in all the states.

Accordingly, vide order dated 30.08.2010, we issued notice to

all states through their Chief Secretaries to file affidavits

furnishing information of all cases under the NDPS Act where

the undertrial has been incarcerated for a period exceeding five

years. In pursuance of the same, we received the valuable

assi