Sajad Ahmad Bhat v. UT of J&KI

FIR No.287/2021 for offence under Section 8/15, 29 of NDPS Act registered with Police Station Bijbehara.

2. As per the prosecution case on 26.11.2021 petitioner alongwith two more persons was found to be in possession of 70 kgs of poppy straw. He was arrested on 06.02.2022.

3. The petitioner has sought bail inter alia on medical grounds stating that he is suffering from numerous ailments and he has been advised to undergo surgery. It is further averred that the petitioner had approached learned Principal Sessions Judge, Anantnag for grant of bail on medical grounds but despite availability of medical record before learned Sessions Judge the bail application of the petitioner was rejected vide order dated 15.04.2022. SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document 2 Bail Appl.No.47/2022

4. When the petition was presented before this Court, an order came to be passed on 04.05.2022 whereby the Incharge District Jail Anantnag was directed to furnish medical report regarding latest health status of the petitioner. Pursuant to the aforesaid order, the latest medical status report of the petitioner has been filed by the Incharge Subsidiary Jail, Anantnag which is taken on record.

5. I have heard learned counsel for the parties and perused the material on record.

6. As per the report of the Incharge Subsidiary Jail Anantnag, the petitioner is suffering from infection in his left kidney and he has abnormal levels of lipid in the blood. It is further indicated in the report that the ailment of the petitioner cannot be managed inside the jail. The relevant extracts of the medical report are reproduced as under:- “In compliance to Hon’ble High Court directions with regard to health report in respect of petitioner/inmate Sajad Ahmad Bhat it is submitted that said inmate is involved in above mentioned case and is lodged since 18- 02-2022 in this jail on judicial remand. In order to ascertain the latest health status of the petitioner inmate, the petitioner has been referred to Govt. Medical College Anantnag for medical check-up/examination. The doctors at GMC Anantnag has examined the said inmate and advised to get some tests i.e USG, KFT and BSR and accordingly these tests have been done and subsequently the report of tests have been examined by the medical officer and given the medical opinion in this regard. The USG report shown renal calculi measuring 14 mm:8mm in the left kidney (USG report enclosed). Moreover some blood tests like Lipid profile etc. were already done. The said report was found abnormal (copy enclosed). The health condition of the inmate/petitioner remained bad since his lodgement because of ailment/disorder/infection in the left kidney and abnormal levels of lipid in the blood. Since then the inmate accused person is under regular treatment of GMC Anantnag. However the health condition of the inmate is getting bad due to his chronic SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document 3 Bail Appl.No.47/2022 ailment. Though the inmate is taking the medicine advised by the doctors but there is no relief in the health condition of the accused/inmate. The doctor of GMC Anantnag has indicated that the patient/inmate needs to operate quickly and can’t be treated through medication. It is pertinent to mention here that there is no any medical facility inside the jail premises neither is any police hospital at District Police Headquarters. As per the diagnosis of doctors at GMC Anantnag the petitioner/accused is suffering from nephrologic disorder/renal disease, so such kind of disease cannot be managed insider the jail premises.”

7. From a perusal of the afore quoted report of the Incharge Subsidiary Jail Anantnag, it is clear that the petitioner is suffering from serious ailments and he is under regular treatment of GMC Anantnag. The report further indicates that the petitioner is being given medicines advised by the Doctors but there is no improvement in his health condition. According to the report, the Doctors have advised that the petitioner needs immediate surgery and cannot be treated through medication.

8. Thus, it is clear that the present health condition of the petitioner is not suitable for his further incarceration in jail. The further incarceration of the petitioner in jail may endanger his life.

9. The learned Sessions Judge while rejecting the bail application of the petitioner has observed that the petitioner does not suffer from any such medical emergency as would warrant his enlargement on bail. The learned Sessions Judge has also observed that keeping in view the heinousness of the offence alleged to have been committed by the petitioner, his bail on medical grounds deserves to be rejected.

10. The question that arises for consideration is as to whether the provisions contained in Section 37 of the NDPS Act would come SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document 4 Bail Appl.No.47/2022 into play while considering the bail application of the petitioner who was found to be in possession of commercial quantity of contraband drugs even on medical grounds.

11. Section 37 of the NDPS Act is a special provision which lays down conditions for grant of bail in the case of a person who has been accused of an offence involving commercial quantity of contraband. It provides as under:- “37.Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless — (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and 5 Bail App (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.”

12. From a perusal of the aforesaid provision, it becomes clear that a person accused of an offence involving commercial quantity of contraband cannot be released on bail, unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and he is not likely to commit any offence while on bail. Thus, sub-section (2) of aforesaid provision makes it clear that aforesaid limitations on grant of bail are in addition to limitations SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document 5 Bail Appl.No.47/2022 under the Code of Criminal Procedure. However, Section 37 of the NDPS, Act does not confer the power of granting bail to a Special Court or High Court, but it only puts limitation on the powers of the Court with regard to its jurisdiction to grant bail. The power to grant of bail is conferred upon the High Court under Section 439 of the Cr. P. C. Section 37 of the NDPS, Act only operates as a limitation on the powers of the High Court conferred under Section 439 of the Cr. P. C. Section 37 of the NDPS, Act comes into play only when bail of a person accused of an offence involving commercial quantity of contraband is being considered on merits and the limitations contained therein would not come into play when the bail is to be granted on humanitarian grounds like medical grounds. In such cases the powers of the High Court under Section 439 Cr. P. C are not curtailed. Thus, the provisions contained under Section 37 of the NDPS, Act do not act as a blanket ban on the power of the High Court under Section 439 Cr. P. C.

13. The observation of learned Sessions Judge that bail on medical grounds can not be granted to the petitioner as he is involved in a heinous offence is, therefore, not in accordance with law.

14. Having held that bail application of the petitioner on medical grounds can be considered by this Court even though he is alleged to have committed offences involving commercial quantity of the contraband, let us now proceed to analyze the matter from the prospective as to whether the health condition of petitioner is of such a nature as would entitle him to grant of bail. SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document 6 Bail Appl.No.47/2022

15. As already noted, the latest medical report of the petitioner clearly suggests that the condition of the petitioner is deteriorating day by day. The medical report indicates that the petitioner needs immediate surgery which is not possible while he is in custody. In case the petitioner is not admitted to temporary medical bail his life will be put to danger.

16. Accordingly the petitioner is admitted to bail on medical grounds upto 15th July, 2022, subject to the following conditions:- i) ii) That he shall furnish the bail bond with one surety in an amount of Rs.1,00,000/- to the satisfaction of the learned trial court. That he shall continue to appear before the trial court on each date of hearing and shall not leave the limits of UT of Jammu and Kashmir without prior permission of the trial court. iii) He shall not tamper with the prosecution witnesses and he shall not repeat similar offence(s). iv) The petitioner shall use the concession of bail for the purpose of his treatment and he shall surrender before the trial court upon expiry of the period of this bail.

17. The petition stands disposed of. Copy of this order be sent to the trial court. SRINAGAR 03.06.2022 Sarveeda Nissar (SANJAY DHAR) JUDGE Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No SARVEEDA NISSAR 2022.06.04 05:30 I attest to the accuracy and integrity of this document