Gujarat High Court
Anilbhai Sureshbhai Batham(Kahar) vs State Of Gujarat on 3 April, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/3580/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3580 of 2018
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ANILBHAI SURESHBHAI BATHAM(KAHAR)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR. NISARG D SHAH(7299) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
MR HS SONI, ADDL.PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 03/04/2019
ORAL ORDER
1. Petitioner, a convict undergoing sentence, is before this Court urging inter alia that he has been discriminated and the respondent authorities should be directed to grant benefit of Government Resolution dated 27.09.2013 to the petitioner because he is suffering from terminally ill decease of AIDS. He has been declared HIV positive by the hospital and he is being treated with medicine by the jail authority and Civil Hospital both.
2. The petitioner is undergoing life sentence for the killing of his wife, who according to him, had passed on her HIV condition to him and this resulted into his conviction for the life imprisonment with other fine after full-fledged trial in Page 1 of 7 R/SCR.A/3580/2018 ORDER Sessions Case No.88 of 2018 before the Deesa Court. The petitioner preferred Criminal Appeal against the said judgment being Criminal Appeal No.1410 of 2012 which came to be confirmed by order dated 28.01.2016 and the same came to be disposed of. He preferred Special Criminal Application No. 3061 of 2017 which also came to be disposed of on 28.08.2017. The petitioner since is suffering from AIDS, he moved an application for his remission. His application came to be rejected on 15.03.2018 of getting benefits flowing from Government Resolution dated 27.09.2013.
3. He is aggrieved by the non-grant of remission to the life convict on the ground that all those who are suffering from serious incurable and terminally ill disease are entitled to the benefits of this resolution. The categories of the prisoners prescribed in the said resolution would involve the present petitioner also and, therefore, he has approached this Court with the following prayers:-
"(18) In the premises aforesaid, the petitioner most humbly and respectfully prays that:
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions the respondent authorities to quash and set aside the order dated 15.03.2018 (at ANNEXURE-C) and further be pleased to direct that the petitioner hsall be granted the benefit of Government Resolution dated 27.09.2013 (at ANNEXURE-A hereto) and the petitioner shall be released forthwith; (B) Pass any such other and/ or further orders that may be thought just and proper, in the fact s and circumstances of the present case;
(C) Affidavit may kindly be dispensed with as the applicant is in jail"Page 2 of 7
R/SCR.A/3580/2018 ORDER
4. Heard learned advocates for the parties.
5. This Court issued the notice to the State and also ensured the due examination of the petitioner once again. It had been pointed out from the report submitted by the Medical Board in relation to the petitioner that his clinical condition is stable.
He has reduced CD4 due to non-adherence to ART drugs prescribed by the doctors. He is also independent in performing his daily routine chores. He is also advised to visit ART centres on regular basis for follow up treatment and also for change of ART drugs as per the NACO guidelines so that his HIV infection/chronic manageable condition, remains under control.
6. This Court has also requested the learned Additional Public Prosecutor to request one of the Panel doctors to remain present before this Court for further details. Accordingly, Dr. B.K.Amin, who is one of the panelist, remained present before this Court.
7. Today, Dr. B.K.Amin, in detail, has explained to this Court that AIDs is no more in the category of terminally ill disease. It is a critically manageable disease. His stage is stable as mentioned in the certificate. He can be said to be having first stage of AIDS, which is manageable provided, he takes care Page 3 of 7 R/SCR.A/3580/2018 ORDER of himself and he visits ART centres. He further has submitted that one of the doctors visits the jail inmates on regular basis on every 4th Saturday and takes care of their drugs and checks other aspects. Moreover, the Jail doctor is also present before the Court, who has urged that the petitoiner is being sent on regular basis to ART centres for his not taking the drugs because he wanted the benefit of the said resolution or otherwise, he is desirous of getting the bail. On periodical basis, check-up is carried out and he is also given nutritive diet like two apples, grams, milk etc. by the jail dispensary itself.
8. This Court has heard learned advocate Mr. Nisarg Shah for the petitioner and Mr. Soni, learned Additional Public Prosecutor for the respondent-State. They both have made their rival submission and putforth their case.
9. It is emphatically urged by Mr. Shah, learned advocate for the petitioner that the petitioner has been discriminated. Other patients of AIDS have been released by virtue of this resolution. According to learned Additional Public Prosecutor, they were at a much advanced stage and, therefore, the resolution had applied on the advice of the Medical Board. Considering the overall condition and also bearing in mind the details provided to this Court, it appears that the petitioner is Page 4 of 7 R/SCR.A/3580/2018 ORDER suffering from AIDS. His appeals before all the Courts have been on merits dismissed. He has preferred application invoking Government Resolution dated 28.09.2013. However, he is not found to be belonging to the category of prisoners for release. This resolution is issued by the Home Department, State of Gujarat for grant of benefit of remission which specifies categories of convicts. It provides that those who are not included in categories A and B, but are suffering from serious and incurable disease and cannot live or find the normal life difficult to live i.e. failure of both the kidneys, last stage of cancer, incurable paralysis or AIDS. However, it is only after the panel of the doctors opine, that this resolution is being considered.
10. In the instant case, it appears that the panel of doctors have stated that he is capable of carrying out his daily routine activities and he cannot get the advantage of the resolution as in the case of other inmates.
11. The report of Anil Sureshbhai Batham (Kahar) the present applicant is as follows:-
"7. Medical report of Anilbhai OPD NO.AHD/18/00324010) Anilbhai a 36 year old male was examined today and his detailed clinical history and through physical examination was done. He is a case of HIV infection, detected on 03/02/2015. His initial CD4 count was 172. He was started ART as per NACO guideline and his current ART is ZL+ATV/r (Zidovudine, Lamivudine, Atarzanavir, ritonavir) with CD4 96. He is not regular in his follow up at ART centre, as per available records.Page 5 of 7
R/SCR.A/3580/2018 ORDER His physical examination is normal. On detailed History and Examination, he is found to be fully independent to perform various activities of daily living like. He also has normal bowel and bladder habits. On 24/08/2018 on his clinical examination, his WHO clinical stage is T1,CD4 count is 96 and Plasma Viral Load (PVL) is 11159. He was last visited at ART centre on 6/07/2018 and already advised for change ART regimen to 2nd line due to High Plasma viral load 861028 on 06/07/2018 but patient not came in follow up. His adherence for ARTY drug is poor. He is advised to strictly come for follow up at ART centre and continue all medications So that his HIV infection/chronic manageable condition, remains under control.
In conclusion, he is a case of HIV infection, currently with stable immune and clinical status but with increased Plasma viral load. He will require to change his current ART drugs as per current NACO guidelines. He is advised to visit ART centre for change of ART then continue the treatment as per advice without treatment interruption.
He is independent in performing activities in daily living."
12. Subsequent report of the doctor is along the same line and he is not found to be in the category of prisoner for release.
13. The Court does not find any discrimination, on the contrary, it is a reasonable classification made out. AIDS is no longer in the category of terminally ill disease. It is said to be a chronically manageable disease, provided the patient continues to take drugs provided by the ART centre as this may require change as per the NACO guidelines.
14. This petition is not being entertained. However, the petitioner is directed to be sent on regular basis to the ART centre at Civil Hospital. He shall be checked on the regular basis by also the panel of doctors. He shall not create any Page 6 of 7 R/SCR.A/3580/2018 ORDER difficulty in consuming the drug and shall be provided security/police force for the purpose of visiting the hospital.
15. Petition stands disposed of accordingly.
(MS. SONIA GOKANI, J. ) SUDHIR Page 7 of 7