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.

2026 INSC 127

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

 (arising out of SLP(Crl.) No. 18886/2025)

REGINAMARY CHELLAMANI APPELLANT(S)

 VERSUS

STATE REP BY

SUPERINTENDENT OF CUSTOMS

RESPONDENT(S)

O R D E R

Leave granted.

The appellant, Reginamary Chellamani,

is aggrieved by the denial of regular bail

by the High Court of Judicature at Madras,

vide order dated 24.07.2025 passed in

Crl.O.P. No. 7857/2025, in relation to

Case R.R. No. 41/2021 (C.C. No. 225/2022

on the file of the learned Principal

Special Judge under EC and NDPS Act Cases,

Crl.A. @ SLP(Crl.) No. 18886/2025 1

Chennai), for the offences punishable

under Section 8(c) read with Sections

20(b)(ii)(C), 22(c), 23, 28 and 29 of the

Narcotic Drugs and Psychotropic Substances

Act, 19851 read with Section 135 of the

Customs Act, 1962.

The amount of contraband substance

allegedly seized from the person of the

appellant, Reginamary Chellamani, is

stated to be above the commercial quantity

prescribed in that regard under the

aforestated enactment. We, however, find

that the appellant, Reginamary Chellamani,

has been in custody for 4 years 1 month

and 28 days as on date.

Given the length of incarceration

that the appellant has already suffered

and as an identically situated accused

person, who was travelling along with the

appellant, Reginamary Chellamani, on the

same flight, has been granted bail by this

Court, we are inclined to grant the same

1 “NDPS Act”, for short

Crl.A. @ SLP(Crl.) No. 18886/2025 2

relief to the appellant at this stage.

The appeal is accordingly allowed,

setting aside the impugned order dated

24.07.2025.

The appellant, Reginamary Chellamani,

is directed to be released on bail in

connection with the aforestated NDPS case,

on stringent terms and conditions to be

fixed by the trial Court. In addition,

the appellant, Reginamary Chellamani,

shall surrender her passport before the

trial Court.

The appellant, Reginamary Chellamani,

shall cooperate during the course of the

trial and shall not take unnecessary

adjournments.

The trial Court shall endeavour to

conclude the trial at the earliest.

We clarify that we have not made any

observations/comments on the merits of the

case and any observation made in this

order is meant only for the limited

Crl.A. @ SLP(Crl.) No. 18886/2025 3

purpose of grant of bail.

We may also note at this stage that

the appellant did not cross examine the

witnesses at the initial stage and it was

only after she engaged her own counsel and

her application for re-examining those

witnesses was allowed that she was

permitted to do so.

It is incumbent upon the trial Courts

dealing with criminal proceedings, faced

with such situations, to inform the

accused of their right to legal

representation and their entitlement to be

represented by legal aid counsel in the

event they cannot afford a counsel. The

trial Courts shall record the offer made

to the accused in this regard, the

response of the accused to such offer and

also the action taken thereupon in their

orders, before commencing examination of

the witnesses.

This procedure requires to be adopted

and put in practice scrupulously.

Crl.A. @ SLP(Crl.) No. 18886/2025 4

This order shall be communicated to

the Chief Justices of all the High Courts

to enable suitable instructions being

issued in this regard to all the concerned

trial Courts within the State.

Pending application(s), if any, shall

stand disposed of.

......................J.

(SANJAY KUMAR)

......................J.

(K. VINOD CHANDRAN)

NEW DELHI;

FEBRUARY 05, 2026.

Crl.A. @ SLP(Crl.) No. 18886/2025 5