Jammu & Kashmir High Court
Gurmeet Singh vs Union Territory Of J&K on 22 April, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.105
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Bail App No. 09/2021
CrlM No. 26/2021
Gurmeet Singh
...Petitioner(s)
Through:- Mr. D. S. Saini, Advocate
v/s
Union Territory of J&K
.... Respondent(s)
Through:- Mr. Aseem Sawhney, AAG
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. 167/2018 before the Court of learned 1st Additional Sessions, Judge Jammu.
2. It is averred that the petitioner is suffering with Chronic Myeloid Leukemia (CML) i.e., Blood Cancer and is under medical treatment of Oncologist Govt. Medical College, Jammu since 14.03.2019. It is further averred that as per the report of the Doctor petitioner needs regular follow up at Oncology Department, besides 2 Bail App 09/2021 petitioner is having low immunity and there are higher chances of him contacting COVID-19 infection which could prove fatal for him and his fellow inmates 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 31.08.2020. After the rejection of the bail application another medical report was called from the concerned District jail which reveals that the petitioner is under treatment of Oncologist, Govt. Medical College, Jammu as a case of Chronic Myeloid Leukemia i.e., Blood Cancer. The report further reveals that regular follow-up of petitioner is becoming difficult, as his chances of contacting COVID-19 infection are high due to his disease, as he is having low immunity.
3. Latest medical report dated 20.04.2021, pertaining to the petitioner was called from the concerned District Jail, the same reads as under:-
"Subject: Medical Report of a cused Gurmeet Singh S/o Ujjagar Singh presently lodged in District Jail, Jammu It is certified that above mentioned inmate who is lodged in this jail is a case of Chronic Myeloid Leukemia (CML) Blood Cancer. Inmate is under treatment of HOD Oncology at GMC, Jammu. Specialists have prescribed him medicines which are been continuously given by Jail Doctors.
It is pertinent to mention here that inmate needs regular follow up at Oncology Department owing to grave nature of disease. But owing to 3 Bail App 09/2021 present circumstances i.e. high prevalence of COVID-19, inmate cannot be sent to GMC as such patients have low immunity and there are higher chances of him contacting COVID-19, which could prove fatal for him and his fellow inmates on his return back from Hospital. This is for your kind information."
4. I have heard learned counsel for the parties and perused the material on record.
5. 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 that 64 Kg of poppy straw was recovered from the possession of the petitioner which is a commercial quantity. The learned trial court while rejecting the bail application of the petitioner vide order dated 31.01.2019 has noted that petitioner cannot be granted bail on the grounds projected in the application, i.e., Blood Cancer and Chemotherapy and threat of COVID-19 infection. The learned trial court found that this is not a good enough reason for enlarging the petitioner on bail and that the jail authorities can take care of the ailments of the petitioner.
6. The medical report issued by the Senior Medical Officer/ Jail Authorities, District jail, Jammu clearly shows that health condition of the petitioner has deteriorated to alarming levels. The petitioner is stated to have gone into depression and the jail authorities have fairly conceded that petitioner has started staying alone and is not mixing up with fellow inmates. Medical reports further reveals that although, his counseling is been done by the Jail Doctors from time to time and he 4 Bail App 09/2021 needs psychological support of his family owing to the nature of his disease.
7. The question arises whether in a case where the health condition of a person accused of having committed an offences under the NDPS, Act which bar contain in Section 37 of the said Act is attracted, can be released on bail on medical grounds.
8. 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 2[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
(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.5 Bail App 09/2021
(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."
9. From the 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 jurisdiction for grant of 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 come 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 6 Bail App 09/2021 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.
10. 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 entitled him to grant of bail.
11. As already noted the latest medical report of the petitioner clearly suggests that health condition of the petitioner has decelerated as he is suffering with Chronic Myelin Leukemia (CML) i.e., Blood Cancer and is under medical treatment of Oncologist Govt. Medical College, Jammu since 14.03.2019. The jail authorities have clearly stated that petitioner has started staying alone and is not mixing up with fellow inmates and at this stage he needs psychological support of his family owing to the nature of his disease. The Jail authorities have also stated that owing to the high prevalence of COVID-19 infection petitioner cannot be sent Govt. Medical Collage, Jammu as he is having low immunity and there are higher chances of him contacting COVID- 19 infection including the fellow inmates, on his return back from the Hospital.
12. Having regard to the aforesaid health condition of the petitioner a case for grant of bail on medical grounds is made out.
13. Accordingly, the petitioner would be admitted to bail on medical grounds, subject to the following conditions:- 7 Bail App 09/2021
1. Petitioner 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 temper with the prosecution witnesses and he shall not repeat similar offence (s).
14. Bail application is, accordingly, disposed of.
(SANJAY DHAR) JUDGE Jammu 22.04.2021 Bir Whether the order is speaking: Yes Whether the order is reportable: Yes BIR BAHADUR SINGH 2021.04.26 14:58 I attest to the accuracy and integrity of this document