Trial Court Obligated to Inform Accused of Right to Free Legal Aid Before Witness Examination

The decision in Reginamary Chellamani v. State (Rep. by Superintendent of Customs) (2026 INSC 127) reflects the Supreme Court’s commitment to protecting personal liberty even within the stringent framework of the NDPS Act. The appellant had been in judicial custody for more than four years in a case involving allegations of commercial quantities of narcotics, with the trial yet to conclude. Recognising that prolonged undertrial detention cannot substitute punishment, the Court granted bail on grounds of delay and parity with a similarly placed co-accused.

Facts

The appellant, Reginamary Chellamani, was arrested in connection with an NDPS case registered as R.R. No. 41/2021 (C.C. No. 225/2022) before the Principal Special Judge under the EC & NDPS Act Cases, Chennai. She was accused of possessing and trafficking contraband substances above the “commercial quantity” threshold prescribed under the NDPS Act. The prosecution invoked stringent provisions including Sections 20(b)(ii)(C) and 22(c), which attract severe punishment and restrict the grant of bail under Section 37 of the NDPS Act.

The High Court of Madras, by order dated 24 July 2025, dismissed her application for regular bail in Crl.O.P. No. 7857/2025. Aggrieved, the appellant approached the Supreme Court by way of Special Leave Petition.

A significant aspect of the case was that the appellant had already undergone 4 years, 1 month, and 28 days of incarceration as an undertrial prisoner. Another co-accused, who was travelling on the same flight and was similarly placed, had earlier been granted bail by the Supreme Court.

Issues

1. Whether prolonged incarceration of an undertrial accused under the NDPS Act justifies the grant of bail despite the rigours of Section 37?
2. Whether parity with a co-accused who had already been granted bail can be a relevant factor?
3. What is the duty of trial courts regarding informing accused persons about their right to legal aid and representation?

Submissions

Appellant’s Contentions

• The appellant had been in custody for over four years, which was excessive and violative of the right to a speedy trial under Article 21.
• Trial was progressing slowly, and there was no likelihood of an early conclusion.
• A co-accused in identical circumstances had already been granted bail by the Supreme Court; hence, the principle of parity must apply.
• Continued detention without adjudication amounted to pre-trial punishment.

State’s Contentions

• The quantity seized was above the commercial quantity, attracting the strict embargo of Section 37 NDPS Act.
• The allegations were serious, involving international trafficking and offences under both NDPS and Customs Act.
• Grant of bail may hamper trial.

Findings of the Supreme Court

1. Prolonged Incarceration as a Ground for Bail

The Court emphasised that though the NDPS Act imposes stringent conditions for bail, constitutional guarantees under Article 21 cannot be ignored. Detention for more than four years without completion of trial was considered an exceptional circumstance warranting judicial intervention.

2. Parity with Co-Accused

The Bench noted that another accused travelling on the same flight and facing identical allegations had already been enlarged on bail by the Court. Denying similar relief to the appellant would be discriminatory and unjust.

3. Order Granting Bail

The Supreme Court set aside the High Court order and directed that the appellant be released on bail on stringent conditions to be fixed by the trial court. Additional conditions imposed included:

• Surrender of passport before the trial court
• Cooperation with trial proceedings
• No unnecessary adjournments
• Direction to the trial court to endeavour to conclude the trial expeditiously.

4. No Comment on Merits

The Court clarified that its observations were limited to the question of bail and shall not influence the merits of the trial.

Significant Directions on Legal Aid

A crucial part of the judgment relates to access to legal representation:

• The Court observed that initially the appellant had not cross-examined witnesses because she did not have effective legal assistance.
• Only after engaging private counsel and moving an application was she permitted to re-examine witnesses.

The Bench held:

Trial courts must inform every accused about their right to legal representation and entitlement to free legal aid if they cannot afford counsel.
Courts must record in their orders:

• that such offer was made,
• the response of the accused, and
• action taken thereafter before starting witness examination.

Institutional Direction

The Supreme Court directed that this order be communicated to all High Courts, which must issue instructions to subordinate courts to follow this procedure scrupulously.

Why This Direction Was Necessary

1. Bridging the Knowledge Gap

Many under-trial prisoners are illiterate, migrants, or first-time offenders with no awareness of legal processes. Expecting them to demand legal aid on their own is unrealistic. The State, through the judiciary, must therefore take the initiative.

2. Reducing Appellate Delays

Trials conducted without counsel frequently lead to retrials or the recall of witnesses, as happened in this case. Proactive appointment of legal aid at the outset will save judicial time and avoid multiplicity of proceedings.

3. Upholding Human Dignity

The criminal process often places the accused in a vulnerable position against the might of the State. Ensuring representation is essential to preserve their dignity and equality of arms.

Conclusion

The decision in Reginamary Chellamani v. State is a progressive affirmation that even in grave offences under the NDPS Act, human liberty and fair trial rights remain paramount. The Court not only granted individual relief but issued systemic directions to ensure that no accused faces trial without being informed of the right to free legal aid. The judgment harmonises the rigours of special criminal law with constitutional compassion and due process.

Important Link

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