ORDER

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 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.[(1994) 6 SCC 731], 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.[ (2002) 10 SCC 529] 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.”

2. We are reminded of Justice Felix Frankfurter’s immortal words in Antonio Richard Rochin Vs. People of the State of California[96 L. Ed. 183 (1951)], 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 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 assistance of the Additional Solicitor General of India, Mr. P. P. Malhotra, learned amicus curiae, Ms. Anita Shenoy; Mr. R. K. Gauba, District and Sessions Judge (South), Saket, New Delhi; Registrar Generals of High Courts; Director General, Narcotics Control Bureau, Ministry of Home Affairs, senior-most Officer-in-Charge of Investigations and Prosecution for offences under the NDPS Act; representatives of the Directorate of Revenue Intel