Jammu & Kashmir High Court
Amit Kumar Aged 32 Years vs Ut Of J&K on 29 November, 2024
Sr. No. 14
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 140/2024
Pronounced on- 29.11.2024
Amit Kumar aged 32 years ....Petitioner/Appellant(s)
S/O Ram Kumar
R/O Gorar, Sonipat, Haryana
A/P District Jail, Amphalla, Jammu
Through :- Ms. Z S Watali, Advocate
V/s
UT of J&K ....Respondent(s)
Through SHO
Police Station ANTF,
Gandhi Nagar, Jammu.
Through :- Mr. P D Singh, Dy. AG.
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
ORDER
1. Through the medium of this application filed by the applicant/accused through his learned counsel, he has sought the interim bail on medical reasons to enable him to get his surgery for cholelithiasis, on the grounds inter alia that he is presently lodged in District Jail, Amphalla, Jammu as an under-trial in case FIR No. 14/2022 under Sections 8/20/29 NDPS Act of Police Station ANTF Gandhi Nagar, Jammu; that he has not been keeping good health for quite some time and the jail authorities did not take any interest in his proper medical care and treatment; that he filed an application on 15.05.2024 before the then trial court i.e. 2nd Additional Sessions Judge, Jammu with the prayer for directing the Superintendent District Jail, Ambphalla to take him to GMC Hospital Bakshi Nagar, Jammu for specialized treatment; that the learned trial court immediately directed the Superintendent District Jail, Amphalla to take him to GMC Hospital 2 Bail App No. 140/2024 Jammu for his medical checkup and provide him the required treatment with submission of report by or before 20.05.2024; that the clinical and diagnostic tests conducted at GMC Hospital revealed his suffering from a large gallstone requiring immediate surgery; that he accordingly moved an application to then learned trial court for grant of interim bail on medical grounds, which came to be heard by learned 1st Additional Sessions, Judge Jammu as the presiding officer of the learned trial court was on leave but unfortunately said application was not allowed; that he intends to get his surgery done outside the UT in a reputed hospital as he had developed infection so that he can be in a position to get the proper medical treatment and care in the association of his family members; that he is extremely worried about his health condition and at this juncture, he needs the attention and care of his own family members which cannot be provided within the jail; that this court may call the status report in terms of his health condition to assess the same; that his right to life being a Fundamental Right demands his being released on interim bail on health grounds and that he shall abide by any conditions that may be imposed by this court.
2. I have heard learned counsel for the parties.
3. Leaned counsel for the petitioner/accused Mrs. Z S Watali, Advocate in reiteration to the grounds already taken in the application submitted that petitioner is suffering from a critical health condition as on account of his large sized gallstone, he has developed infection and needs immediate surgery in connection whereof he may be granted interim medical bail on humanitarian grounds so that he can avail the medical facility in the company of his family members outside the Jammu by approaching any reputed health centre. She submitted that although petitioner can be subjected to requisite surgery even at 3 Bail App No. 140/2024 Jammu in custody, yet in view of his ailment and infection, he needs postoperative care and special diet which cannot be made available to him in the jail. She submitted that petitioner has a Fundamental Right to life owing to which fact he needs to be released temporarily on medical bail so that he can avail the requisite medical facility and treatment of his choice outside Jammu and preferably in his native State where he shall feel comfortable and homely. She further contended that petitioner/accused shall surrender again before learned trial court to face the trial and shall abide by any conditions that may be imposed by this court.
4. Per contra, learned UT counsel, Mr. P.D. Singh, learned Dy. AG submitted that there is no merit in the application filed on behalf of the petitioner/accused which deserves outright rejection. He submitted that learned trial court as well as this court has already passed appropriate directions regarding the treatment of the petitioner/accused at GMC Bakshi Nagar, Jammu. He submitted that the surgery of the petitioner was earlier scheduled at GMC Jammu but the sister of the petitioner did not agree to sign the formal consent paper at the hospital. He submitted that such type of surgeries, as is being required by the petitioner, are being done easily at all the government hospitals. According to the learned UT counsel, the application for grant of interim bail on humanitarian grounds has been tactfully filed by the petitioner with a view to come outside the jail. He further submitted that petitioner/accused is an outsider being a resident of Gorar, Sonipat, Haryana and, as such, there is an apprehension of his absconding at the trial.
5. I have perused the application in hand and the record of the trial court as well.
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6. Perusal of the record reveals that the Court of learned 1 st Additional Sessions Judge, Jammu has already vide its order dated 08.06.2024 passed appropriate directions in respect of the treatment of the petitioner. Learned court below through its order inter alia directed that the medical treatment including the surgery required by the petitioner can be done at the GMC Hospital, Jammu. Learned court has further directed that petitioner be either taken to GMC Jammu or any other reputed hospital outside the UT as per his choice in connection with his surgery after obtaining the consent of his family. Learned trial court has also directed that a member of the family of the petitioner shall also remain present in the hospital during his surgery and after doing the needful, he should be lodged back in the jail concerned with further availability of postoperative care to him. Perusal of the trial court record reveals that petitioner is involved in the commission of the offences under NDPS Act in relation to commercial quantity. A commercial quantity of charas is alleged to have been recovered from the petitioner and his associate at Jammu. The criminal case against the petitioner and the co-accused is presently pending disposal before the Court of Special Judge (NDPS Cases Jammu). The said case is pending disposal since 10.04.2024. Both the accused persons including the petitioner have been charged on 21.05.2024 for the commission of offences punishable under Sections 8/20/25/29 NDPS Act who pleaded not guilty pursuant to which the court directed the prosecution to produce witnesses in support of its case. Till date, no prosecution witness stands examined. The accused including the petitioner appear to be under detention since 16.10.2022.
7. It is true that the petitioner/accused is alleged to have committed offences under the NDPS Act in relation to commercial quantity which no doubt are 5 Bail App No. 140/2024 heinous in nature. It is also equally true that petitioner was already on his application for grant of bail on medical grounds directed to be provided the required medical care and treatment. The direction was already given by the learned trial court vide its order dated 08.06.2024 to the effect that the petitioner/accused be subjected to the needful surgery for his gallbladder removal either at GMC Hospital Jammu or at any reputed hospital outside the J&K as per his wishes after taking the consent from his family. The petitioner/accused did not opt to undergo the requisite medical treatment and the surgery whilst being in custody. He was as per the record taken to the GMC Hospital, Jammu earlier and his surgery was also scheduled but his sister declined to give the formal consent needed as per medico legal formalities. It is why the petitioner/accused approached this court through this subsequent petition in terms of provisions of Section 439 of the Code (483 BNSS) seeking his interim bail on health grounds.
8. This Court finds itself in a state of dilemma as to whether the prayer made by the petitioner/accused for grant of interim bail on health grounds is bona fide or not? No doubt as already contended by learned UT counsel, the surgery as needed by the petitioner can be conveniently done at GMC Hospital, Jammu while the petitioner's being in custody. This Court has also through its order dated 15.07.2024, passed appropriate directions regarding the treatment of the petitioner/accused by directing the Superintendent District Jail, Ambphala, Jammu to ensure that petitioner/accused is got examined at the Govt. Medical College, Hospital Jammu and all the prescribed clinical tests/medicines are being done/provided to him at the State expenses. Superintendent District Jail, Ambphala was also directed to facilitate any surgical intervention if advised by 6 Bail App No. 140/2024 the Doctors at GMC, Jammu, however, subject to requisite formalities especially the consent to be given by the legal heirs of the petitioner/accused with the direction to the Superintendent concerned to submit a detailed status report.
9. As per the latest status report submitted by the concerned jail authorities, petitioner is reported to be a known case of cholelithiasis (Gall-Bladder Stone), who is under the treatment of jail medical officer and physician specialist. His present health condition is reported to be stable. Regarding his surgery, it has been reported that petitioner is still insisting for not getting operated in government hospital.
10. Under these circumstances, this court is of the opinion that it may be in the ends of justice in case, the petitioner/accused is admitted to temporary bail for a reasonable period so as to enable him to avail the medical facility and to get his required surgery for cholelithiasis done at the hospital of his choice. Although the petitioner is facing trail on the charge of offences under NDPS Act in relation to commercial quantity, yet his fundamental right to life which is of very wide connotation needs to be protected. It may also be possible that petitioner is reluctant to undergo his surgery at Jammu hospital under his apprehension that he may not be provided the required postoperative care in the jail. No doubt, a regular bail application in respect of the offences under NDPS Act in relation to commercial quantity is hit by the provisions of Section 37 of the NDPS Act but in case of consideration of an application for temporary bail on humanitarian grounds including health grounds, the merits of the case do not apply. However, such power needs to be exercised with great care, caution and circumspection and not in a routine manner. No doubt, crime under NDPS Act is a great threat to the society.
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11. This court can derive its authority from the provisions of the Section 439 of the repealed Code corresponding to Section 483 of the BNSS read with the provisions of Article 21 of the Constitution, to address an eventuality, like the present one and pass the appropriate orders regarding temporary bail subject to some stringent conditions, under exceptional and compelling circumstances. After all, a health issue even of a detenue is of paramount consideration. All under trails and convicts have their fundamental right to claim proper medical care and treatment, whilst generally in custody and under some compelling circumstances while being on a temporary let off. However, the conditions viz. gravity of the offences charged against an accused, likelihood of his absconding at the trial and influencing the prosecution witnesses, impact of the crime charged against the accused on the society and State shall weigh the consideration of a court while overlooking the statutory bars. When bail is to be considered on humanitarian grounds, the merits of the case do not apply. The basic power to grant bail is derived from the procedural law i.e. BNSS/ CrPC and the limitations on the power of a court imposed either by the procedural law or any other special statue, can be under some compelling circumstances be read with the relevant provisions of the Constitution and some extra-ordinary provisions itself contained in the procedural law.
Otherwise while considering a bail under Section 439 of the Code (corresponding to Section 483 BNSS) in a routine manner, the statutory restrictions/limitations as laid down under Section 437 of the Code (corresponding to Section 480 BNSS) have to be considered.
12. In its opinion this court is fortified with an authoritative judgment of the Hon'ble Karnatka High Court cited as "Syed Abdul Ala vs Narcotic Control 8 Bail App No. 140/2024 Bureau", South,2003 Cri.L.J 999 (Kar) decided on 17 December, 2002 wherein it has been authoritatively laid down that High Court under Section 439 of the Code of Criminal Procedure 1973(corresponding to Section 483 of BNSS) is not powerless to consider bail on humanitarian grounds not-with-standing the restrictions imposed by section 37 of the NDPS Act. It has been held in the case concerned that provisions of Section 37 of the NDPS Act apply where bail is to be considered on merits. It has been agitated before the Hon'ble Court in the case that power to grant bail is basically derived from Code of Criminal Procedure and not from the NDPS Act and the later only qualifies the power of the court vested under the code. It was held that provisions of Section 37 of NDPS Act do not clamp or cap powers of the High Court to grant bail under section 439 of the Code in its entirety. It is profitable to reproduce paras 9 and 10 of the judgment as under:-
9. The provisions of Section 37 of the NDPS Act make a drastic departure from the conventional cannons of burden of proof of prima facie case against the accused on the prosecution even at the stage of bail. In respect of the offences under the NDPS Act, the onus is on the accused to prove the innocence/non-complicity in order to secure bail. The restrictions in Section 37 relates to prima-facie material regarding the guilt of the accused. The powers of High Court to grant bail under Section 439 are quite wide and discretionary.
Notwithstanding a prima facie case of guilt, under exceptional circumstances, the High Court in its discretion can grant bail. The embargo placed under Section 37 of the NDPS Act operates only when the Court is considering the bail application on merits. Thus, the provisions of Section 37 do not clamp or cap the powers of High Court to grant bail under Section 439 in its entirety. In other words Section 37 operates only as partial eclipse on the powers of the High Court. While deciding the application on merits with reference to prima- facie material of guilt then only the provisions of Section 37 operate and they have to be read with the provisions of Section 439 of the Cr. P.C. When the bail is to be granted on other extenuating circumstances or humanitarian ground like the medical ground, the powers of the High Court under Section 439 are not curtailed. The provisions of Section 37 do not operate as a blanket ban on the powers of the High Court under Section 439 of the Cr. P.C. 9 Bail App No. 140/2024
10. On careful reading of the decisions of the Supreme Court in Kishan Lal's case, I find that there is no ratio laid down to the effect declaring that Section 37 of the NDPS Act, operates as a total blanket ban on the powers of High Court under Section 439 of the Cr. P.C. In the present case, the accused is seeking bail on medical grounds and the Court is considering the case of the petitioner dehors, prima facie material of guilt placed by the prosecution. On humanitarian considerations, the powers of High Court under Section 439 of the Cr. P.C., to grant bail is not eroded or affected by the provisions of Section 37 of the NDPS Act.
13. In "Jasvinder Singh Vs State of J&K" B.A No: 156/2019 decided on 12.04.2021 bail on humanitarian grounds (medical grounds) was granted by this Court to an accused who was suffering from diabetes, which had substantially affected his eye sight as per the medical records brought to the notice of the Court. It was authoritatively held in the case that the Sec 37 of the NDPS Act only prescribes the limitations on the release of a person on bail. That the powers to grant bail stand vested with the High Court under Section 439 of the Code of Criminal Procedure. That Section 37 of the NDPS Act, comes into play only when bail of a person/accused of an offence involving commercial quantity of a contraband is being considered on merits and the limitations contained therein would not apply when bail is to be granted on humanitarian grounds like medical ground. In such cases the powers of the High Court U/s 439 of the 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 powers of the High Court U/s 439 of the Cr.P.C.
14. It is a settled legal position that basic human rights cannot be denied to a person regardless of the allegations of the involvement against him. Refusing to grant temporary bail on exclusive health grounds may sometimes endanger his life.
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15. For the foregoing discussion, the application is allowed as an exceptional case and the petitioner/accused is admitted to temporary bail for a total period of 45 days with effect from date of his release from the jail enabling him to get the medical treatment and especially to undergo the required surgery for cholelithiasis (Gall-Bladder Stone) at the hospital of his own choice. However, this order shall be subject to the following terms and conditions that:-
i) petitioner/accused shall furnish surety and personal bail bonds to the tune of ₹2.00 lacs each, (the surety bond of ₹2.00 lacs to be furnished to the satisfaction of learned trial court i.e. Court of Special Judge (NDPS cases), Jammu by two persons from amongst the relatives of the petitioner/accused in equal ratio). The sureties in support of their bail bonds shall furnish to the satisfaction of learned trial court, the Xerox copies of their identity proof i.e. Aadhar Cards, duly attested by the SHO of the local Police Station having the jurisdiction over the place of the permanent residence of the said sureties, under his seal and signature;
ii) petitioner shall immediately after the release from the jail in pursuance of this order and without wasting any time ensure ,, his required surgery;
iii) petitioner shall surrender before learned trial court on 46 th day of his release from the jail and, in case, such date falls a holiday, on the next working day;
iv) petitioner/accused shall not cause any inducement, threat or undue influence on any of the prosecution witnesses so as to dissuade them from giving their statements before learned trial court and;
v) petitioner/accused shall also be at liberty to opt for his surgery while being in custody through the authorities of the District Jail, Ambphalla, Jammu in connection whereof any of his close relatives/family members shall give the pre-
requisite consent to the concerned hospital authorities.
16. It is needless to mention that learned trial court shall be at liberty to proceed under the provisions of Sections 491 and 492 of BNSS, corresponding to Sections 446, 446-A of the Code of Criminal Procedure in case of absconding at the trial of the petitioner/accused beyond the bail period. 11 Bail App No. 140/2024
17. In case, the requisite surety/bail bonds are furnished to the satisfaction of learned trial court, a release order shall go from the learned trial court directing the Superintendent, District Jail, Ambphalla Jammu to release the petitioner/accused from custody after obtaining the requisite personal bond to the tune of₹2.00 lacs from him.
18. A copy of this order along with the record shall be forwarded to the learned trial court for information and compliance.
19. Disposed of.
(Mohd. Yousuf Wani) Judge JAMMU 29.11.2024 Abinash Whether the order is speaking? Yes Whether the order is reportable? Yes