Bail Under NDPS Act Should Not Be Granted Solely Because Accused Is Suffering From HIV: Supreme Court

As per Section 37, bail should not be granted to an accused unless the accused is able to satisfy twin conditions: reasonable ground for believing that the accused is not guilty of such an offence and that the accused would not commit an offence or is not likely to commit an offence if granted bail.

Pertinently, the charges against the accused involved criminal conspiracy to commit an offence under this Act. Apart from this, FIRs were filed on two different occasions and allegedly on one such occasion, quantity of the contraband substance was much above the commercial quantity. Considering these facts and circumstances, the grant of bail by the Meghalaya High Court was termed as a very “serious lapse.”

“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.,” the Bench of Justices C.T Ravikumar and Prashant Kumar Mishra observed.

The Division Bench was dealing with the State of Meghalaya's appeal against the aforementioned grant of bail order. The High Court granted bail to the accused on the solitary grounds of her being HIV positive.

“30. Accordingly, on this ground alone, the application for grant of bail is hereby allowed.,” the impugned order stated.

At the outset, the Top Court underscored the importance of adhering to the conditions given under Section 37(1)(b)(ii) of the Act before granting bail. Elaborating, the Court also shed light on the objects and reasons for bringing this Act.

Reliance was placed on several cases, including Collector of Customs, New Delhi v. Ahmadalieva Nodira (2004) 3 SCC 549. Therein, while interpreting the expression “reasonable grounds”, the Court observed that it means something more than the prima facie grounds. It contemplates substantial and probable causes for believing that the accused is not guilty of the alleged offence.

Further, the case of the State of Kerala and Ors. v. Rajesh and Ors., (2020) 12 SCC 122, was also cited wherein it was held that in case one of the two conditions thereunder is not satisfied, the ban for granting bail would operate.

Taking a cue from this, the Court categorically said that a mandate under Section 37 of the Act is a sine qua non, and a liberal approach ignoring it is impermissible.

The Court also refused to give her, the accused person, protection of the decision passed in Bhawani Singh v. State of Rajasthan where bail was granted to an accused suffering from HIV. Distinguishing the same from the present case, the Court observed that Bhawani Singh's involvement was not one under the NDPS Act.

“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.,” the Court said.

Thus, while setting the impugned order aside, the Court directed her to surrender before the trial Court within a week. Notwithstanding, the Court granted her the benefit of the benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017, of disposing proceedings on a priority basis.

Case Details: THE STATE OF MEGHALAYA VS. LALRINTLUANGA SAILO., DIARY NO. - 48998/2023

Citation : 2024 LiveLaw (SC) 492