No Rigid Rule That Convict Should Undergo Half Of Sentence For Bail At Appellate Stage : Supreme Court

The Supreme Court has clarified that to suspend sentence during the pendency of appeal, a rigid rule cannot be applied that the convict must have undergone half of the substantive sentence. If a case for grant of relief is otherwise made on merits, the appellate court can grant bail or suspend sentence.

A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan made this significant observation while dismissing an appeal filed by the Narcotics Control Bureau against an order of the High Court suspending the convict's sentence. The convict was sentenced to 10 years of imprisonment for the offence under the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act. The High Court noted that he had undergone a substantial period of incarceration (4.5 years). The NCB argued that the High Court could not have suspended the sentence as the accused had not undergone half of the sentence. 

Additional Solicitor General SV Raju, for the NCB, argued that unless the respondent had undergone a sentence for the one-half period, he was not entitled to bail pending the final hearing of the appeal against conviction. Reliance was placed on the decision in the Supreme Court Legal Aid Committee representing Undertrial Prisoners vs. Union of India & Ors (1994) 6 SCC 731.

The bench noted that the direction in the said decision to release prisoners who have served one-half of their sentence in certain cases was intended as a one-time measure to address the problem of overcrowding of prisons.

"The directions issued were by way of a one-time measure. This judgment does not take away the power of the Court to grant regular bail even if the period undergone by a prisoner is less than what is provided in the said judgment. The judgment of this Court cannot be read to mean that the powers of the Court to grant bail have been curtailed," the Court observed.

"If we interpret the judgment of this Court in such a manner, the Courts will be powerless to grant bail or relief of suspension of sentence even if a case is made out on merits. Therefore, in our view, if a case is made out for the grant of suspension of sentence and/or bail in deserving cases on merits, the Court is not powerless to grant relief of suspension of sentence and bail pending an appeal, even if an accused has not undergone half of the sentence. There cannot be a rule of thumb that a convict cannot be released on bail pending an appeal against conviction unless he has undergone half of substantive sentence."

Rigid approach can't be adopted in fixed-term sentences

The Court added :

"In the case of fixed-term sentences, if the Courts start adopting a rigid approach, in a large number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, itwill defeat the right of appeal."

Relief of bail can be granted when accused has undergone substantive period despite S.37 rigours

The ASG argued that the right to bail in NDPS cases is constrained by the rigours of Section 37 of the Act. However, the Court observed that in cases of long incarceration and there is less likelihood of the appeal being heard soon, bail can be granted, despite such statutory rigours.

"There is no dispute about the fact that the Appellate Court is bound by constraints of Section 37 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone a substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence, the Appellate Court can exercise the power of releasing the accused on bail pending the appeal. If the relief of bail is denied in such a factual situation only on the grounds of Section 37 of the NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India."

Case : Narcotics Control Bureau v Lakhwinder Singh

Citation : 2025 LiveLaw (SC) 191

Click here to read the judgment

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