Bail – NDPS Act – Commercial Quantity – Long Incarceration – Parity – Section 37 rigours – Relaxation – Granted (Paras 2–4) Where the accused is charged under Sections 8(c), 20(b)(ii)(C), 22(c), 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 involving commercial quantity, but has undergone incarceration for over four years and an identically placed co-accused has been granted bail, the Court may grant bail notwithstanding the statutory rigours of Section 37, particularly where trial has not concluded.

A. Bail – NDPS Act – Commercial Quantity – Long Incarceration – Parity – Section 37 rigours – Relaxation – Granted
(Paras 2–4)

Where the accused is charged under Sections 8(c), 20(b)(ii)(C), 22(c), 23, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 involving commercial quantity, but has undergone incarceration for over four years and an identically placed co-accused has been granted bail, the Court may grant bail notwithstanding the statutory rigours of Section 37, particularly where trial has not concluded.

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B. Bail – Parity Principle – Co-accused granted bail – Similar factual matrix – Relief extended
(Para 3)

When a co-accused, travelling on the same flight and similarly situated, has been granted bail by the Supreme Court, denial of bail to another identically placed accused would offend parity.

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C. Bail – Long pre-trial detention – Constitutional concern – Article 21 implications
(Paras 2–4)

Incarceration exceeding four years without conclusion of trial constitutes a relevant constitutional factor for grant of bail even in stringent statutory regimes.

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D. Criminal Trial – Right to Legal Representation – Duty of Trial Court – Mandatory Recording – Directions Issued
(Paras 5–7)

Trial Courts must:

1. Inform accused of right to legal representation.

2. Inform accused of entitlement to legal aid if unable to afford counsel.

3. Record in writing:

   • Offer made,

   • Response of accused,

   • Action taken.

This requirement must be complied with before commencement of examination of witnesses.

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E. Observations – Limited to Bail – No Expression on Merits
(Para 4)

Observations in the order are confined to bail determination and shall not influence trial.

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ANALYSIS OF FACTS

1. Nature of Prosecution

The appellant was prosecuted under:

• Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)

• Customs Act, 1962

The quantity allegedly seized was above commercial quantity.

This triggered Section 37 NDPS restrictions.

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2. Custodial Duration

The Court specifically recorded:

Custody of 4 years, 1 month, 28 days.

This was the central factual pivot.

The Court did not enter into:

• Evidentiary scrutiny,

• Section 37 twin conditions analysis,

• Prima facie innocence assessment.

Instead, it relied on incarceration length + parity.

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3. Parity Factor

A co-accused:

• Travelled on same flight.

• Faced identical allegations.

• Granted bail by Supreme Court earlier.

This parity was treated as determinative.

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4. Legal Aid Issue

The appellant initially:

• Did not cross-examine witnesses.

Later:

• Engaged counsel.

• Application for recall allowed.

This exposed a systemic issue:

Trial courts failing to ensure accused are informed of right to counsel before recording evidence.

This triggered nationwide procedural directions.

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ANALYSIS OF LAW

I. Section 37 NDPS Act – Statutory Rigour

Section 37 requires:

1. Public Prosecutor opportunity to oppose bail.

2. Court must be satisfied:

   • Reasonable grounds to believe accused not guilty.

   • Not likely to commit offence while on bail.

The order does not expressly analyse these twin conditions.

Instead, it invokes:

• Article 21 proportionality.

• Long incarceration doctrine.

• Parity jurisprudence.

Thus, constitutional considerations override statutory rigidity.

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II. Long Incarceration Jurisprudence

Though not elaborated in the order, the reasoning aligns with established principle:

Unduly long pre-trial detention converts presumption of innocence into punishment.

The Court implicitly balances:

• Societal interest (NDPS strictness)
  vs.

• Individual liberty (Article 21).

Four-year custody was treated as excessive.

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III. Parity Principle

Parity is a settled bail principle:

If:

• Role identical,

• Evidence similar,

• Allegations indistinguishable,

then denial becomes discriminatory.

The Court found parity applicable.

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IV. Procedural Safeguards – Right to Counsel

The Court moved beyond bail and addressed:

• Failure to cross-examine due to lack of counsel.

• Judicial obligation to inform accused of legal aid.

The directions:

• Are mandatory.

• Require written recording.

• To be communicated to all Chief Justices.

This creates binding administrative protocol.

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RATIO DECIDENDI

The operative ratio of the judgment may be formulated as follows:

1. In NDPS cases involving commercial quantity, prolonged incarceration exceeding four years without conclusion of trial is a constitutionally relevant factor justifying grant of bail.

2. Where an identically placed co-accused has been granted bail, parity demands similar relief unless distinguishing factors exist.

3. Trial Courts are under a mandatory obligation to:

   • Inform accused of right to counsel,

   • Inform about legal aid entitlement,

   • Record compliance before recording evidence.

The ratio lies in the intersection of:

• Article 21,

• Parity doctrine,

• Procedural fairness in criminal trials.

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OBITER OBSERVATIONS

The direction to all High Courts to issue instructions regarding recording of legal aid offer constitutes an institutional procedural mandate.

While arising from bail proceedings, it has systemic application.