Delhi High Court
Nitish Kumar vs Directorate Of Revenue Intelligence on 29 August, 2023
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 08.08.2023
Pronounced on: 29.08.2023
+ BAIL APPLN. 2072/2023
NITISH KUMAR ..... Petitioner
Through: Mr. Aditya Aggarwal, Mr.
Naveen Panwar and Ms. Kajol
Garg, Advs.
versus
DIRECTORATE OF REVENUE INTELLIGENCE
..... Respondent
Through: Mr. Satish Aggarwala, Sr.
Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
1. The present petition has been filed by the petitioner seeking concession of interim bail for a period of 30 days on medical and humanitarian grounds on account of the precarious health of the petitioner.
2. Considering the petitioner's health condition delineated in the bail application this court vide order dated 28.06.2023, requisitioned the medical report of the petitioner from the concerned Jail Superintendent. Accordingly, a medical report dated 06.07.2023, was received. Since in the medical report dated 06.07.2023 there was a Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 1 of 16 ASWAL Signing Date:29.08.2023 15:43:33 mention that the petitioner is scheduled to undergo an MRI LS Spine and Bilateral Hip Joint on 07.07.2023, a fresh medical report stating the outcome of the MRI was requisitioned from the Jail Superintendent.
3. Pursuant to the above, a fresh report dated 20.07.2023 was received by this Court. The relevant text on which reliance was placed by the learned counsel for the petitioner as well as learned senior standing counsel for the respondent / DRI reads as under:-
" काया�लय व�र� िचिक�ा अिधकारी OFFICE OF THE SENIOR MEDICAL OFFICER िड�े�री, क�द्रीय कारागारसं�ा: ०४, ितहाड़, नई िद� ी - ११००६४ DISPENSARY, CENTRAL JAIL NO. 4, TIHAR, NEW DELHI-110064 MOI.C/CJ-04/2023/1991 Dated: 20/07/2023 Subject: Medical status report of inmate patient Nitish s/o Suman.
With references to the order of Registrar General, Hon'ble High Court of Delhi, at New Delhi seeking medical report of aforesaid inmate patient to be submitted as per date given.
At the outset it is to be most respectfully submitted that medical report of above said inmate had been duly submitted from this office on time vide letter no- MO/I.C/CJ-04/2023/1844, dated 02/07/2023 it is being reproduced as under-
As per available records, it is hereby submitted that the inmate patient admitted in Tihar CJ-4 on 05/05/2022, wherein his medical examination was done by the duty doctor. In medical examination, inmate patient didn't give any significant medical history.
Thereafter on 09/05/2022, 23/05/2022, 28/05/2022, 15/06/2022, 20/06/2022,28/06/2022 04/07/2022 and 05/07/2022, inmate patient was seen by doctor on duty for availing treatment as follow up case of psoriasis (diagnosed in the month of march in previous jail), rashes over back Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 2 of 16 ASWAL Signing Date:29.08.2023 15:43:33 and lower leg, itching over body, for which he was examined thoroughly and prescribed appropriate treatment accordingly.
In the meantime on 31/05/2022 and 21/06/2022, inmate patient was seen by jail visiting Skin SR for related complaint, for which he was examined thoroughly and advised appropriate treatment accordingly. Thereafter on 20/06/2022, 27/06/2022 and 04/07/2022, inmate patient was seen by jail visiting Dentist for toothache, for which he was examined thoroughly and advised appropriate treatment accordingly.
xxx xxx xxx xxx Thereafter on 25/07/2022 inmate patient was seen by jail visiting Dentist, wherein the inmate patient provided the above mentioned complaint (Difficulty in opening mouth] for which he was examined thoroughly and advised appropriate treatment accordingly.
Thereafter on 26/07/2022 inmate patient was seen by jail visiting ENT SR, wherein the inmate patient provided the complaint of difficulty in opening mouth for which he was examined thoroughly and advised appropriate treatment accordingly & further referred for ENT specialist review at Central jail Hospital / Higher Centre.
xxx xxx xxx xxx Thereafter on 27/08/2022 inmate patient was sent to department of Dental at DDU Hospital for the complaint of pain In right lower region of jaw associated with difficulty in mouth opening and chewing food for which he was examined thoroughly, advised appropriate treatment and referred to higher centre AIIMS/MAIDS accordingly. Thereafter on same day i.e. 27/08/2022 inmate patient also visited department of ENT at DDU Hospital for the complaint of reduced mouth opening with right ear ache for which he was examined thoroughly, advised appropriate treatment accordingly.Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 3 of 16 ASWAL Signing Date:29.08.2023 15:43:33
Thereafter on 30/08/2022, 21/09/2022 inmate patient was sent to department of Dermatology at DDU Hospital for the complaint of scabies + sebborhic dermatitis with nail psoriasis for which he was examined thoroughly, advised appropriate treatment accordingly.
Thereafter on 03/10/2022, 19/10/2022 inmate patient was sent to department of dental at Maulana Azad Institute of Dental Sciences (MAIDS) as advice by DDU Hospital wherein inmate patient was attended by SR on duty and advised for transalveolar extraction under LA.
xxx xxx xxx xxx Thereafter on 17/01/2023, 10/02/2023, inmate patient was sent to department of skin at DDU Hospital as a follow-up case of chronic plaque psoriasis, for which he was thoroughly examined, advised appropriate treatment accordingly.
Thereafter on 13/02/2023 inmate patient was set to department of Dental at MAIDS Hospital for transalveolar extraction, wherein he was advised to report on 15/02/2023 for further procedure.
Thereafter on 15/02/2023 inmate patient was again sent to department of Dental at MAIDS wherein transalveolar extraction, primary closure was done and also advised post operative instructions.
Thereafter on 06/03/2023 inmate patient was again sent to department of Dental at MAIDS for suture removal same was done and advised appropriate treatment accordingly. Thereafter on 14/03/2023 inmate patient was again sent to department of Skin at DDU Hospital as a follow-up case of chronic plaque psoriasis, wherein he was thoroughly examined, on examination, multiple erythematous plaques with scaling on scalp, extremities, trunk approx 20-30 % body surface area, not relived with topical medications and was planned to start on methotrexate, advised certain blood Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 4 of 16 ASWAL Signing Date:29.08.2023 15:43:33 investigations, appropriate treatment and review accordingly.
Thereafter on 25/03/2023 inmate patient was again sent to department of Skin at DDU Hospital as a follow-up case of chronic plaque psoriasis wherein he was thoroughly examined and referred to department of Rheumatology in view of psoriatic arthritis.
In the meantime on 28/01/2023, 07/02/2023, 20/02/2023, 24/02/2023, 01/03/2023 and09/03/2023 inmate patient was seen by doctor on duty as a follow-up case of chronic plaque psoriasis, complaint of fungal infection over body, pain in opening mouth, for which he was managed accordingly. Thereafter on 03/04/2023 inmate patient was sent to department of Rheumatology at Safdajung Hospital as a follow-up case of chronic plaque psoriasis, complaint of pain in right hip joint, bilateral knee joint, for which he was thoroughly examined, advised appropriate treatment, certain investigations and review accordingly.
xxx xxx xxx xxx Thereafter on 15/05/2023 inmate patient was again sent to department of Rheumatology at Safdarjung Hospital as a follow-up case of chronic plaque psoriasis, complaint of back pain and bilateral knee pain since 01 month, early morning stiffness, on examination his vit-D3was found on lower side (26.47mmol/L), for which he was thoroughly examined, advised appropriate treatment accordingly. Thereafter on 31/05/2023 inmate patient was sent to department of Dental at MAIDS Hospital for the complaint of reduced mouth opening since 10 months, history of transalveolar extraction, known case of psoriasis, scabies and dermatitis, on examination mouth opening approximately two and half finger, surgical site healing satisfactorily, no evidence of fibrotic bends palpable, for which he was advised appropriate treatment and oral hygienic accordingly.Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 5 of 16 ASWAL Signing Date:29.08.2023 15:43:33
xxx xxx xxx xxx In the meantime on 28/03/2023, 03/04/2023, 11/04/2023, 09/05/2023, 01/06/2023 and 09/06/2023 inmate patient was reviewed by doctor on duty as a follow-up case of psoriasis vulgaris, complaint of low back ache, for which he was managed accordingly.
xxx xxx xxx xxx Thereafter on 04/07/2023 inmate patient was sent to department of ENT at DDU Hospital as a follow-up case of OSMF (oral sub-mucous fibrosis), complaint of right earache with cold and chest pain on coughing, for which he was thoroughly examined, on examination 02 finger mouth opening was found, advised appropriate treatment, bilateral RMT injection given (3rddose) and advised to review after 01 week accordingly.
Thereafter on 07/07/2023 inmate patient was sent to department of Radiology at Safdarjung Hospital for MRI LS Spine and same was done and is suggestive of- IMPRESSION: In an adult male with lower backache, current scan shows:
Bilateral S1 joints appear normal in morphology, joint space, articular surface and signal intensity. No e/o any abnormal contrast enchancement or T2/STIR hyperintense signal changes Early degenerative changes in form of diffuse disc bulge at L4-L5 and L5-S1 without neural root compression. Exaggerated cervico-dorsal curvature causing mild indentation of dorsal thecal sac at C3 to D1 spinal levels and ventral thecal sac at 2-D3 & D3-D4 level. However, no cord deformity or signal intensity changes noted in spinal cord.
Few anterior marginal osteophytes are seen at C4, C5 and C6 levels.
T2 hyperintense lesion seen at D7 likely hemangioma.Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 6 of 16 ASWAL Signing Date:29.08.2023 15:43:33
(Copy Enclosed).
xxx xxx xxx xxx Thereafter on 18/07/2023 inmate patient was sent to department of ENT at DDU Hospital as a follow-up case of OSMF [oral sub-mucous fibrosis], wherein bilateral RMT injection given (5th dose).
xxx xxx xxx xxx Thereafter on same day i.e. on 20/07/2023 inmate patient was also reviewed by jail visiting Orthopedic SR as a known case of psoriasis vulgaris on treatment with multiple large joint pain and lower backache, complaint of stiffness of bilateral knee and thigh, losing for morethan 30 minutes in morning, for which he was thoroughly examined, on examination spine mild tenderness is present over lower back (lumber region), multiple hypo pigmented skin lesion present all over body, advised appropriate treatment, physiotherapy, certain investigation with skin review accordingly.
At present inmate patient is a known case of psoriasis vulgaris with multiple joint pain and lower backache, seborrhic dermatitis, psoriatic arthritis, complaint of multiple erythematous plaques with scaling on scalp, extremities, trunk approx 20-30% body surface area, he is not relived on topical and planned to start on methotrexate, dandruff, scabies, pain in mouth opening, oral cavity & oropharynx - whitish mucosal discoloration of bilateral RMT (RetroMolar Trigone), 02 finger mouth opening, bilateral TMJ (Temporo-Mandibular Joint)tenderness, nose- right DNS (deviated nasal septum), advised injection in bilateral RMT (RetroMolar Trigone) weekly for four weeks, for which he is receiving treatment from doctor on duty/DDU hospital/Safdarjung Hospital/MAIDS Hospital with persisting symptoms.Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 7 of 16 ASWAL Signing Date:29.08.2023 15:43:33
This is for your kind information and onward submission to the Hon'ble Court.
Medical Officer In-charge, Central Jail No. 04, Tihar, New Delhi - 110064 To, The Superintendent, Central Jail No. 4, Tihar, New Delhi-
110064.
Medical Officer In-charge, Central Jail No. 04, Tihar, New Delhi - 110064"
4. Articulating the petitioner's case for grant of interim bail on medical grounds, Mr. Aditya Aggarwal, learned counsel for the petitioner at the outset submits that the health condition of the petitioner is precarious and requires urgent sustained treatment, which is not possible while he is in custody.
5. Mr. Aditya Aggarwal extensively referred to the medical status report dated 20.07.2023 to contend that the petitioner is a known case of chronic plaque psoriasis and psoriatic arthritis. He submits that the effect of psoriasis is that the petitioner has been suffering from reduced mouth opening for about 10 months.
6. He submits that the petitioner is being regularly taken to the various Government hospitals, but there is no relief to him from the ailments he is suffering from. In view of the aforesaid ailments being suffered by the petitioner, the learned counsel submits that the petitioner is entitled to interim bail on medical grounds.
Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 8 of 16 ASWAL Signing Date:29.08.2023 15:43:337. He places reliance on the decision of Sanjay Vs. Union of India, 2023 SCC OnLine SC 840 and a decision of this court in Gopal Das Vs. NCB, 2021 SCC OnLine Del 329.
8. Per contra, Mr. Satish Aggarwala, learned senior standing counsel appearing for the respondent / DRI submits that the medical ailments of the petitioner are not life threatening and the requisite medical attention is being provided to the petitioner within the jail. In support of his contention, he refers to the medical report dated 20.07.2023 where it has been recorded that the petitioner is receiving treatment from the doctor on duty / DDU hospital / Safdarjung Hospital / MAIDS Hospital for the persisting symptoms.
9. He further submits that the Supreme Court, as well as, this court has taken a consistent view that where an individual seeks an interim bail on medical grounds, bail shall be granted only in cases where the requisite medical facilities cannot be provided by the jail authorities.
10. Reliance in this regard is placed on the decision of the Supreme Court in State of Uttar Pradesh vs. Gayatri Prasad Prajapati, 2020 SCC OnLine SC 843. Furthermore, the learned senior standing counsel submits that the petitioner can be referred to any specialised government hospital for treatment but in custody, having regard to the seriousness of allegations against the petitioner.
11. He has also placed reliance upon the observations made by the Hon'ble Division Bench of this Court in para 20 in Athar Parvez vs. State, CRL. REF. 1/2015 decided on 26.02.2016 on the issue of whether the conditions of Section 37 of the NDPS Act would apply Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 9 of 16 ASWAL Signing Date:29.08.2023 15:43:33 only to cases of regular bail or would also apply when the accused seeks interim bail. Para 20 of Athar Parvez (supra) reads as under:
"20. Having considered the case law on the subject, we are inclined to answer the reference in the following manner:
[1] The trial or the appellate Courts after conviction are entitled to grant "interim" bail to the accused/ convict when exceptional and extra-ordinary circumstances would justify this indulgence.
The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release.
[2] While rejecting or accepting an application for grant of "interim" bail, the trial / appellate Courts will keep in mind the strict provisions of Section 37/32A of the NDPS Act and only when there are compelling reasons which would justify and require the grant of "interim" bail, should the application be allowed. The Court must take into account whether or not the accused/convict is likely to commit or indulge in similar violations.
[3] While examining the question of grant of "interim"
bail, the Court would consider whether sending accused / convict in police custody would be suffice and meets the ends of justice, keeping in view the nature of the offence with which the accused is charged or/and the past conduct of the accused.
[4] Where "interim" bail should be given, it would be granted for minimal time deservedly necessary and can be subject to certain conditions. Interim bail is interim or for a short duration."
Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 10 of 16 ASWAL Signing Date:29.08.2023 15:43:3312. I have heard the learned counsel for the petitioner, as well as, learned senior standing counsel for the respondent / DRI and have also perused the record. The short question to be decided at this stage is whether the petitioner, who is in judicial custody, is entitled to interim bail on medical grounds.
13. The right to health is recognized as an important facet of Article 21 of the Constitution. Merely because a person is an under trial or for that matter even a convict, lodged in jail, this facet of the right to life cannot be curtailed. It remains an obligation of the State to provide adequate and effective medical treatment to every person whether he is lodged in jail, or an under trial or a convict.
14. The Hon'ble Supreme Court in Pt. Parmanand Katara vs. Union of India and Ors., (1989) 4 SCC 286, has also emphasized on preservation of the life of both of an innocent person or a criminal liable to punishment, in the following words: -
"....7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment."....
15. Again, the Hon'ble Supreme Court in Re-inhuman Conditions In 1382 Prisons, (2017) 10 SCC 658, in no uncertain terms has articulated that medical assistance to all is a Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 11 of 16 ASWAL Signing Date:29.08.2023 15:43:33 human right to which prisoners are also entitled. The material part of the decision reads as under:-
"....34. Adverting to the Nelson Mandela Rules, the learned Attorney General also expressed the view that the State Governments have several development priorities and while they will certainly look after the interests of prisoners, there are other issues that might require greater attention and greater financial commitment. While this may be so, we are clearly of the view that Article 21 of the Constitution cannot be put on the back-burner and as mentioned in the Mandela Rules even prisoners are entitled to live a life of dignity. Therefore, no State Government can shirk its duties and responsibilities for providing better facilities to prisoners. If a State Government is unable to do so, it should be far more circumspect in arresting and detaining persons, particularly undertrial prisoners who constitute the vast majority of those in judicial custody. The State Governments and the prosecution do not have to oppose every bail application nor do they have to ask for the remand of every suspect pending investigation. If the fundamental right to life and liberty postulated by Article 21 of the Constitution is to be given its true meaning, the Central Government and the State Governments must accept reality and not proceed on the basis that prisoners can be treated as chattel.
xxxx xxxx xxxx xxxx xxxx 58.8.Providing medical assistance and facilities to inmates in prisons needs no reaffirmation. The right to health is undoubtedly a human right and all State Governments should concentrate on making this a reality for all, including prisoners. The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet minimum Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 12 of 16 ASWAL Signing Date:29.08.2023 15:43:33 standards of care is an indication that the human right to health is not given adequate importance in prisons and that may also be one of the causes of unnatural deaths in prisons. The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary."....
(emphasis supplied)
16. Undoubtedly, the health of the petitioner has to be given primacy and it is his fundamental right to be given adequate and effective treatment whilst in jail. However, in case specialised or sustained treatment and care are necessary, which is not possible whilst in jail, the petitioner will be entitled to the benefit of interim bail on medical grounds.
17. In Gayatri Prasad Prajapati (supra), the Supreme Court has emphasized that before releasing an inmate on interim bail on medical grounds, the court has to record satisfaction that the medical treatment being given to the inmate whilst in jail is not adequate and he requires further treatment necessitating his release.
18. A perusal of the medical reports submitted by the jail authorities shows that the petitioner is suffering from various medical conditions for which he has been taken to different hospitals for treatment multiple times. At the cost of repetition, the relevant part of the medical report dated 20.07.2023 is reproduced herein below:
At present inmate patient is a known case of psoriasis vulgaris with multiple joint pain and lower backache, seborrhic dermatitis, psoriatic arthritis, complaint of multiple erythematous plaques with scaling on scalp, extremities, trunk approx 20-30% body surface area, he is not relived on topical Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 13 of 16 ASWAL Signing Date:29.08.2023 15:43:33 and planned to start on methotrexate, dandruff, scabies, pain in mouth opening, oral cavity & oropharynx - whitish mucosal discoloration of bilateral RMT (Retro Molar Trigone), 02 finger mouth opening, bilateral TMJ (Temporo-Mandibular Joint)tenderness, nose-right DNS (deviated nasal septum), advised injection in bilateral RMT (Retro Molar Trigone) weekly for four weeks, for which he is receiving treatment from doctor on duty/DDU hospital/Safdarjung Hospital/MAIDS Hospital with persisting symptoms.
(emphasis supplied)
19. However, there is no expert opinion on record suggesting that ailments from which the petitioner is suffering from warrant specialised or more sustained treatment and care, which is not possible in jail, but at the same time it cannot be overlooked that the petitioner has been repeatedly taken to different government hospitals by the jail authorities for his treatment but still the symptoms of psoriasis vulgaris with multiple joint pain and lower backache, seborrhic dermatitis, psoriatic arthritis, complaint of multiple erythematous plaques with scaling on scalp, extremities, trunk etc. (approx on 20- 30% body surface area), continue to persist.
20. This court also cannot shut its eyes to the allegations levelled against the petitioner. Petitioner is accused of having made efforts to get four containers cleared which contained a total of 34.7 Kgs of heroin. The said containers were initially booked in the name of the consignee M/s Abetar Health Care Pvt. Ltd. and subsequently the shipping agent initiated change of consignee from aforesaid company to the proprietorship concern of the petitioner i.e., M/s Goodlife Global New Delhi. Regard being had to the serious nature of the Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 14 of 16 ASWAL Signing Date:29.08.2023 15:43:33 offence with which the petitioner is charged, it would suffice and meet the need of justice in case the petitioner is sent to the specialised private hospital while in custody.
21. During the course of arguments, a specific query was also put to the learned counsel for the petitioner to suggest the name of the private hospital where the petitioner would be willing to receive the requisite treatment, however, in the absence of clear instructions, the learned counsel for the petitioner was not able to suggest the name of any such hospital.
22. Since the learned counsel for the petitioner has not suggested the name of any private specialised hospital, it is deemed appropriate that the petitioner be examined by the doctors of MAX Hospital, Saket for the ailments the petitioner is suffering from.
23. Accordingly, the Superintendent Jail is directed to present the petitioner before the concerned doctors of MAX Hospital, Saket on 01.09.2023 at 09:00 AM. In case the doctors consider it appropriate to admit the patient for one or a maximum of two days for conducting any diagnostic tests or procedures, the doctors shall be at liberty to do so.
24. The Superintendent Jail shall provide necessary personnel for guarding the petitioner during the period he is admitted to the said Hospital for treatment.
25. The SHO of the concerned Police Station is also directed to cooperate with the Superintendent Jail and provide assistance and support if demanded by the Superintendent Jail.
Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 15 of 16 ASWAL Signing Date:29.08.2023 15:43:3326. The security personnel guarding the petitioner, if possible, shall be in plain clothes.
27. Two family members/pairokar of the petitioner in the present case are allowed to accompany the petitioner when he is being examined by the doctors or while undergoing diagnostic tests and during his stay in the hospital as mentioned above.
28. The report of the doctors be placed on record before the next date with an advance copy to the other side.
29. Needless to say, the treatment taken by the petitioner at MAX Hospital, Saket shall be at the cost of the petitioner.
30. List for further directions on 05.09.2023.
31. Copy of the order be forwarded to the concerned Superintendent Jail for necessary compliance.
32. Order be uploaded on the website of this Court.
33. Order dasti under the signatures of the Court Master.
VIKAS MAHAJAN, J AUGUST 29, 2023 N.S. ASWAL Signature Not Verified Digitally Signed By:NARENDRA SINGH BAIL APPLN. 2072/2023 Page 16 of 16 ASWAL Signing Date:29.08.2023 15:43:33