Jammu & Kashmir High Court
Jasvinder Singh vs State Of J&K on 12 April, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Reserved on :- 06.04.2021
Pronounced on :- 12 .04.2021
Bail App No. 156/2019
CrlM Nos. 262 & 1368/2020
Jasvinder Singh
...Petitioner(s)
Through:- Mr. D. S. Saini, Advocate
v/s
State of J&K
.... Respondent(s)
Through:- Mr. Vishal Bharti, Dy.AG
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
1. The petitioner has filed the instant bail application on medical grounds. According to the petitioner, he is facing trial for offences under Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act (for brevity 'NDPS Act') arising out of FIR No. 130/2016 before the Court of learned Principal Sessions Judge, Udhampur.
2. It is averred that the petitioner is suffering from Diabetics which has adversely affected his eye sight resulting in low vision problem. It is further averred that as per the report of the Doctor 2 Bail App 156/2019 petitioner is a case of Diabetes Mellitus with blood sugar level of 422 mg%, besides he is also suffering with bilateral posterior sub capsular cataract with nuclear sclerosis with nasal pterygium. It is further contended that in view of the aforesaid serious medical condition of the petitioner he had made an application before the trial court, but the same came to be rejected vide order dated 31.01.2019. After the rejection of the bail application another medical report was called from the concerned District jail which reveals that the petitioner needs surgery for cataract, but the surgery could not be done in view of the uncontrolled blood sugar level of the petitioner. It is further contended that presently the petitioner has become visually impaired/blind and he is unable to perform daily chores as his own. On these grounds petitioner has sought bail.
3. I have heard learned counsel for the parties and perused the record of the case.
4. The petitioner is facing trial for commission of offences under Sections 8/15 of NDPS Act and trial of the case is under way. It is alleged in the challan that 256 Kg of poppy straw was recovered from the possession of the petitioner which is a commercial quantity.
5. The learned trial court while rejecting the bail application of the petitioner vide order dated 31.01.2019 has noted that the blood sugar level is very high and if the same remains in that category that may prove detrimental to the eye sight of the petitioner. The learned trial court has also noted that the petitioner needs necessary medical help and daily monitoring of his blood sugar level. According to the learned trial court the petitioner needs to be shifted to District Jail, 3 Bail App 156/2019 Jammu so as to get regular medical help from Government Medical College Hospital, Jammu but at the same time the learned trial court found that this is not a good enough reason for enlarging the petitioner on bail.
6. Latest medical report dated 25.02.2021, pertaining to the petitioner was called from the concerned District Jail, the same reads as under:-
"In reference to the above mentioned suspect it is hereby submitted that inmate is known case of T2DM (uncontrolled) Triopathy with Amyloidosis with Bilateral Mature Cataract with skin itching. Inmate has been referred to Super Specialty Hospital (Endocrinology) for treatment of diabetes. His blood sugar levels are on higher side even after taking oral hypoglycemic agents. His cataract surgery is been continuously deferred by specialist of GMC due to rise in his blood sugar levels.
It is pertinent to mention here that since inmate has developed bilateral cataract in both eyes. His vision is impaired and he needs continuous support of fellow inmates to do his daily chores. Due to this condition inmate has started staying alone and is showing is sign of acute depression. Although he is continuously been consoled by medical unit of the jail. Moreover, jail infrastructure is not designed to meet inmates condition as in jail everyone has to do his work himself, but inmate is totally dependent upon fellow inmates for small needs too."4 Bail App 156/2019
7. The aforesaid report clearly shows that health condition of the petitioner has deteriorated to alarming levels. As per the report the petitioner has gone into depression. The jail authorities have fairly conceded that jail infrastructure is not designed to meet the condition the petitioner which he is facing and that he has become totally dependent upon fellow inmates even for small needs.
8. The question arises whether a person accused of having committed an offence under the NDPS, Act to which bar computed in Section 37 of the said Act is attracted, can be released on bail on medical grounds.
9. 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 156/2019
(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."
10. 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 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 6 Bail App 156/2019 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.
11. 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.
12. As already noted, the latest medical report of the petitioner clearly suggests that health condition of the petitioner has deteriorated to an alarming extent. His blood sugar level is very high, he has developed bilateral cataract and his vision is totally impaired. The petitioner needs continuous support even for performing his daily chores and he has gone into depression. The jail authorities have clearly stated that the jail infrastructure is not good enough to take care of the petitioner.
13. Having regard to the aforesaid health condition of the petitioner a case for grant of bail on medical grounds in his favour is made out.
14. Accordingly, the petitioner is admitted to bail on medical grounds, subject to the following conditions:- 7 Bail App 156/2019
1. He shall furnish bail bond with one surety in the amount of ₹ 1,00,000/- to the satisfaction of the learned trial court.
2. He shall continue to appear before the trial court on each date of hearing and shall not leave the limits of Union Territory of Jammu and Kashmir without prior permission of the trial court.
3. He shall not tamper with the prosecution witnesses and he shall not repeat similar offence(s).
15. The bail application is, accordingly, disposed of.
(SANJAY DHAR) JUDGE Jammu 12.04.2021 Bir Whether the order is speaking: Yes Whether the order is reportable: Yes BIR BAHADUR SINGH 2021.04.12 18:44 I attest to the accuracy and integrity of this document