2024 (7) TMI 1639 - SCH - Indian Laws

Application for granting bail on health issued - offences involving commercial quantity of narcotic drugs or psychotropic substances under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act 1985 ( NDPS Act ) - twin conditions under Section 37(1)(b)(ii) of the NDPS Act - Anonymization as relates the identity of the respondent-accused as Smt. X has been done as she is Human Immunodeficiency Virus (HIV) positive - HELD THAT - The subject FIR viz. FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS Act would reveal that the quantity of the contraband involved is 1.040 kgs of heroin. The impugned order granting bail to accused-Smt. X dated 29.09.2023 would reveal this time also the bail was granted on the ground that she is suffering from HIV and conspicuously without adverting to the mandate under Section 37(1)(b)(ii) NDPS Act even after taking note of the fact that the rigour of Section 37 NDPS Act calls for consideration in view of the involvement of commercial quantity of the contraband substance. When the accused is involved in offences under Section 21(c)/29 of NDPS Act more than one occasion and when the quantity of the contraband substance viz. heroin is 1.040 Kgs much above the commercial quantity then the non-consideration of the provisions under Section 37 NDPS Act has to be taken as a very serious lapse. In cases of like nature granting bail solely on the ground mentioned relying on the decision in Bhawani Singh v. State of Rajasthan 2022 (4) TMI 1655 - SC ORDER would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity. In the contextual situation it is to be noted that in Bhawani Singh s case the offence(s) involved was not one under the NDPS Act. We have no hesitation to say that in the above circumstances it can only be held that the twin conditions under Section 37 of the NDPS Act are not satisfied and on the sole reason that the accused is a HIV patient cannot be a reason to enlarge her on bail. Since the impugned order was passed without adhering to the said provision and in view of the rigour thereunder the accused-Smt.X is not entitled to be released on bail the impugned order invites interference. Consequently the impugned order is set aside. The accused-Smt. X shall surrender before the trial Court within a week from today and in case of her failure to do so she shall be taken into custody in accordance with law. Upon such surrender/production of the accused before the trial Court it shall cancel the bail bond of the accused and discharge the sureties. In view of the indisputable fact that Smt. X is HIV positive she is entitled to the benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act 2017, . In view of the said provision the trial Court shall take appropriate steps to expedite the trial on priority basis and to dispose of the case as early as possible. The Special Leave Petition is disposed of as above.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the High Court erred in granting bail to the accused under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act") without satisfactorily considering the twin conditions under Section 37(1)(b)(ii) of the NDPS Act, namely, that there are reasonable grounds for believing that the accused is not guilty and that the accused is not likely to commit any offence while on bail.

- Whether the fact that the accused is HIV positive can be a sole or sufficient ground for granting bail in cases involving commercial quantity of narcotic drugs under the NDPS Act.

- The applicability and interpretation of Section 37(1)(b)(ii) of the NDPS Act in the context of bail applications involving commercial quantities of narcotic drugs.

- The procedural and substantive obligations of courts while considering bail applications under the NDPS Act, especially when the Public Prosecutor opposes bail.

- The impact of Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, on the conduct of trial proceedings involving an HIV positive accused.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Whether the High Court erred in granting bail without considering the twin conditions under Section 37(1)(b)(ii) of the NDPS Act

The relevant legal framework is Section 37(1)(b)(ii) of the NDPS Act, which mandates that when the Public Prosecutor opposes bail, the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that the accused is not likely to commit any offence while on bail. Both conditions are cumulative and must be fulfilled for bail to be granted.

Precedents cited include a three-judge bench decision which clarified that "reasonable grounds" means more than prima facie grounds; it requires substantial and probable cause to believe the accused is not guilty. The Court emphasized that the satisfaction of these twin conditions is sine qua non for granting bail in NDPS cases.

The Court noted that the High Court granted bail on 29.09.2023 without adverting to these twin conditions, despite the involvement of commercial quantity (1.040 kgs of heroin) which invokes the rigour of Section 37. This omission was identified as a serious lapse.

Application of law to facts showed that the High Court's order relied solely on the accused's HIV positive status and did not record any satisfaction on the twin conditions. The Court held that such a liberal approach ignoring the statutory mandate is impermissible.

Competing arguments included the High Court's earlier bail grant in a related FIR involving a lesser quantity of heroin (55.68 grams), also on the ground of HIV positivity. The Court distinguished that case and emphasized that the statutory conditions must still be met regardless of health status.

Conclusion: The Court held that the High Court erred in granting bail without satisfying the twin conditions under Section 37(1)(b)(ii) and set aside the bail order.

Issue 2: Whether HIV positive status of the accused can be a sole ground for bail in NDPS Act cases involving commercial quantity

The Court acknowledged the accused's HIV positive status and the sensitivity involved, including the anonymization of identity. However, it clarified that being HIV positive cannot be a license to indulge in serious offences with impunity.

The Court referred to the object and reasons of the NDPS Act, which aims to make stringent provisions for control and regulation of narcotic drugs, highlighting the gravity of offences involving commercial quantities.

It was noted that reliance on the decision in Bhawani Singh v. State of Rajasthan, where bail was granted on health grounds, was misplaced because that case did not involve offences under the NDPS Act.

Therefore, the accused's health condition alone cannot override the statutory requirements under Section 37 of the NDPS Act.

Conclusion: HIV positive status is a relevant consideration but cannot be the sole or decisive ground for bail in commercial quantity NDPS cases.

Issue 3: Interpretation and application of Section 37(1)(b)(ii) of the NDPS Act

The Court reiterated the statutory language and the judicial interpretation that the twin conditions are cumulative and mandatory. It emphasized that the Court must be satisfied on reasonable grounds that the accused is not guilty and will not commit further offences.

The Court drew attention to the object and reasons of the NDPS Act, underscoring the need for stringent control and regulation, and the international obligations implemented through the Act.

The Court underscored that the statutory mandate cannot be circumvented by liberal judicial approaches, especially in cases involving commercial quantities of narcotics.

Conclusion: The interpretation of Section 37(1)(b)(ii) requires strict compliance and courts must record satisfaction of both conditions before granting bail.

Issue 4: Procedural obligations of courts and conduct of trial involving an HIV positive accused

The Court noted that although bail was set aside, the accused is entitled to the benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, which mandates that legal proceedings involving an HIV positive person be taken up and disposed of on a priority basis.

The Court directed that the trial Court expedite the trial and dispose of the case as early as possible, balancing the rights of the accused with the statutory requirements of the NDPS Act.

Conclusion: The trial Court must prioritize and expedite the trial of the HIV positive accused while ensuring adherence to the NDPS Act.

3. SIGNIFICANT HOLDINGS

- "There cannot be any doubt with respect to the position that in cases involving commercial quantity of narcotic drugs or psychotropic substances, while considering the application of bail, the Court is bound to ensure the satisfaction of conditions under Section 37(1)(b)(ii) of the NDPS Act."

- "The reasonable belief contemplated in the provision would require existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."

- "The twin conditions under Section 37(1)(b)(ii) are cumulative and not alternative. Satisfaction of existence of those twin conditions had to be based on the 'reasonable grounds'."

- "In cases of like nature, granting bail solely on the ground mentioned, relying on the decision in Bhawani Singh v. State of Rajasthan would not only go against the spirit of the said decision but also would give a wrong message to the society that being a patient of such a disease is a license to indulge in such serious offences with impunity."

- "Recording a finding mandated under Section 37 of the NDPS Act, which is sine qua non for granting bail to an accused under the NDPS Act cannot be avoided while passing orders on such applications."

- "In view of the indisputable fact that Smt. X is HIV positive she is entitled to the benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, ... the court shall take up and dispose of the proceeding on priority basis."

- The impugned bail order dated 29.09.2023 was set aside for non-compliance with the mandatory provisions of Section 37(1)(b)(ii) of the NDPS Act.

- The accused was directed to surrender within a week; failure to do so would result in lawful custody and cancellation of bail bonds.