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TMI Blog2023 (6) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner, it is stated that the petitioner is aged about 57 years and is suffering from various pre-existing ailments like hypertension, depression and anxiety, obstructive sleep apnea, hyperlipidemia, diabetes, damaged mitral valve prolapse and has a history of soft teeth. It is also stated that the health condition of the petitioner has further worsened in jail and he has not been able to get proper treatment. The relevant part of the affidavit reads as under:- Sl. Diagnosis Medication Prescribed Submissions 1. Hypertension for the last 25 years Vyamada 50 mg twice/day Nebicard 5 mg once/day Stamlo 5 mg once/day Minipress XL 5 mg twice/day Placed the Applicant at risk of stroke and/or heart attack. 2. Depression and anxiety for the last 17 years Paroxetine 40mg once/day Etilam 0.25mg at nightime Buspin twice/day SMethiwave twice/day The Applicant has a history of suffering from panic attacks and suicidal thoughts. 3. Obstructive sleep apnea for the last 1.5 years C-PAP (Continuous Positive Airway Pressure) machine and constant supervision by medical attendant at night Untreated/ unsupervised can lead to fatal consequences, such as coronary artery disease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o enlarge the Applicant on interim bail for a period of 3 months or any other period considered reasonable by this Hon'ble Court, on medical and humanitarian grounds, to enable him to receive critical, appropriate, urgent, and specialized medical care." 5. Considering petitioner's health condition delineated in the affidavit, this Court vide order dated 22.05.2023, requisitioned the medical report of the petitioner from the concerned jail authority, which was received on 26.05.2023. The text of the medical report reads as under:- OFFICE OF THE SENIOR MEDICAL OFFICER DISPENSARY, CENTRAL JAILNO,07 TIHAR, NEW DELHI-110064 D.NO./SMO/CJ-07/2023/1055 Date:25-05-2023 Sub: Medical Report of inmate Saniav Jain S/o Santosh Kumar. As per available record, the above said inmate Sanjay Jain S/o Santosh Kumar lodged in CJ-07 since 21/10/2022. At the first Medical Examination (Mulahiza) the inmate patient alleged history of Hypertension since 15 years, Anxiety since 15 years, sleep apnoea since 02 years and diabetes since 02 years. No fresh injury noted and denied of any history of substance abuse. The inmate patient is allowed to carry medicines as per Court order. On 01/11/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... KFT and Rs. 2000/-.(ANNEXURE A4, A5, & A6). On 24/04/2023, the inmate patient was referred to DD Hospital Emergency Department for the complaint of Head ache and dizziness and Sinus bradycardia for which he was reviewed by Medicine SR and was advised medicines along with Cardiology Opinion. (ANNEXURE A7). On 05/05/2023, the inmate patient visiting jail dispensary with the compliant of heaviness in Chest and anxiety. ECG revealed T-inversion in lead V2, V3, V4, V5, V6 and primary treatment Ecospirin and sublingual Nitrates were given and was immediately referred to DDU Hospital Emergency Department for further evaluation and management. The inmate patient was reviewed by SR Medicine wherein he was prescribed medicines for HTN and DM2. (ANNEXURE A8, A9). In view of low mood and anxiety, the inmate patient was examined by specialist Psychiatry multiple times at CJ-07 Dispensary wherein he was advised continue the same medicine. On 12/05/2023, the inmate patient was reviewed by jail visiting Medicine SR for his compliant of Dyspnoea on & off and back ache, the inmate patient was examined and was advised to continue the prescribed medicines. Further on inmate patient complained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds. Reliance in this regard is placed on the judgment in Vijay Aggarwal through Parokar v. Directorate of Enforcement 2022 SCC OnLine Del 4494 passed by a co-ordinate bench of this Court. 8. Elaborating further on the alleged precarious health condition of the petitioner it is submitted that the petitioner was taken to DDU Hospital on 24.04.2023 and 05.05.2023 and the ECG tests which were performed on him showed abnormalities/hypertrophy despite which the date for the Coronary Angiography remains unchanged. The learned senior counsel for the petitioner further submits that the petitioner is also suffering from panic attacks which render him immobile for several hours. 9. It is also submitted by Mr. Aggarwal, the learned Senior Counsel that the petitioner is having acute pain in his mouth/jaw since December 2022 and upon investigation it has been learnt that the petitioner is suffering from severe tooth attrition requiring multiple tooth extraction surgeries and root canal treatment. The pain suffered by the petitioner is stated to have forced the petitioner to be on a semi-solid/liquid diet. 10. Further, it is submitted that the X-ray of the petitioner has revealed that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il authorities. Reliance in this regard is placed on the decisions of the Supreme Court in State v. Jaspal Singh Gill (1984) 3 SCC 555 and State of Uttar Pradesh v. Gayatri Prasad Prajapati 2020 SCC OnLine SC 843. 15. Mr. Hossain also relied upon the decision of the Supreme Court in Pawan Alias Tamatar v. Ram Prakash Pandey, (2002) 9 SCC 166, to contend that the discretion vested in Courts to grant bail on medical grounds should be exercised in a sparing and cautious manner and every nature of sickness will not entitle the accused to be released on bail unless it is demonstrated that the sickness is of such a nature that if the accused is not released, he cannot get proper treatment. Further placing reliance upon the decision of a Co-ordinate Bench of this Court in Directorate of Enforcement v. Raj Singh Gehlot CRL M.C. 3713/2022 [Date of order: 17.08.2022], the learned Special Counsel urges that in the absence of compelling reasons warranting grant of interim bail on medical grounds, the Courts shall not exercise their discretion in granting bail to the accused. 16. Furthermore, Mr. Hossain submits that the jail authorities are fully equipped to tackle all major ailments includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner cannot be considered as life threatening or serious condition. 19. Learned special counsel for the respondent 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 while considering the issue whether the provisions and conditions of Section 37 of NDPS Act would apply only to cases of bail or would also apply when the accused seeks interim bail, which read 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 req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.".... 24. 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 human right to which prisoners are also entitled to. 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 deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss than one crore rupees may be released on bail, if the special court so directs:" 26. A Co-ordinate Bench of this Court in Kewal Krishan Kumar V. Enforcement Directorate, 2023 SCC OnLine Del 1547, referring to the relevant clauses of the Finance Bill introduced on 1st February, 2018 for amending Section 45 of the PMLA, observed that a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford 'relaxation' to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA. 27. Thus, by way of first proviso to sub-section (1) of Section 45 of PMLA, the legislature has carved out an exception which empowers the special Court to grant bail on humanitarian grounds to a person who is under the age of sixteen years or is a woman or is sick or infirm, without insisting upon strict compliance of twin conditions, namely, (i) there are reasonable grounds for believing that accused is not guilty of offence of money-laundering and (ii) he is not likely to commit any offence while on bail. 28. The reliance placed by the learned Special Counsel for the Directorate of Enforcement on the decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day-to-day basis. The material part of the decision reads as under:- "Mere old age does not make a person 'infirm' to fall within section 45(1) proviso. Infirmity is defined as not something that is only relatable to age but must consist of a disability which incapacitates a person to perform ordinary routine activities on a day-to-day basis." 34. In Vijay Aggarwal through Parokar (supra) a Co-ordinate Bench of this Court while granting interim bail on medical grounds in a case under PMLA, observed that the discretion for granting interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive. 35. Plainly, 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 specialized or sustained treatment and care is necessary, having regard to the petitioner's medical condition which is not possible whilst in jail, then the petitioner will be entitled to the benefit of interim bail in terms of the first proviso to Section 45(1) of the PMLA. 36. A perusal of the medical report submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector, All India Institute of Medical Sciences (AIIMS) is directed to immediately constitute a Medical Board of Doctors from minimum three different specialties having regard to the nature of ailments the petitioner is stated to be suffering from, for evaluating the medical condition of the petitioner. (ii) The Jail Superintendent is directed to furnish all medical records of the petitioner to the Medical Board of Doctors so constituted on or before 07.06.2023. The wife/pairokar of the petitioner is also at liberty to furnish the relevant medical records of the petitioner, as may be available with her, to the Board, with a copy thereof to the learned Special Counsel for the Directorate of Enforcement. (iii) The Jail Superintendent shall also ensure that the petitioner is presented before the Medical Board on 07.06.2023 at the time and place indicated by the Board. (iv) Upon evaluation of medical records and examination of the petitioner, the Medical Board shall furnish its report to this Court, on or before 10.06.2023. (v) The report must, inter alia, indicate specifically-(a) as to how urgent is the need for the petitioner to undergo the CT Coronary Angiography for cardia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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