S.37 Of NDPS Act Not A Blanket Ban On HC's Powers To Grant Bail On Humanitarian Or Medical Grounds: J&K High Court

A bench of Justice Mohammad Yousuf Wani emphasized that while Section 37 imposes restrictions on granting bail in cases involving commercial quantities of narcotics, it does not curtail the High Court's discretion to grant bail on humanitarian grounds.

“Section 37 of the NDPS Act, comes into play only when bail of a person/accused of an offence involving commercial quantity of a contraband is being considered on merits and the limitations contained therein would not apply when bail is to be granted on humanitarian grounds like medical ground. In such cases the powers of the High Court U/s 439 of the Cr.P.C are not curtailed”, Justice Wani remarked.

The observation came while allowing the suspension of sentence and granting bail to Mohammad Junaid Raina, who was convicted under the NDPS Act, primarily on humanitarian grounds due to his father's critical medical condition.

Raina, was convicted by the 4th Additional Sessions Judge, Srinagar, under Section 8/21 of the NDPS Act for possessing a commercial quantity of psychotropic substances. The conviction stemmed from an incident on June 23, 2020, when Raina was intercepted by a police naka party near Shalteng. During the search, ten boxes of Spasmo Proxyvon Plus capsules, each containing six strips of 24 capsules, were recovered from his vehicle. Additionally, one strip of the same drug was found in his pocket.

Raina was sentenced to ten years of rigorous imprisonment and fined Rs. 1 lakh, with an additional year of imprisonment in case of default in paying the fine.

Aggrieved by the conviction, Raina filed an appeal before the High Court, seeking suspension of his sentence and bail. While his initial application for suspension of sentence was pending, he filed another interim application exclusively on humanitarian grounds, citing his father's critical illness and the need for liver surgery.

In the second application, Sr Advocate S. T Hussain emphasized the humanitarian aspect, stating that Raina's father was critically ill and required immediate surgery, with no other male family member available to care for him.

The court, after perusing the applications and considering the rival arguments, observed that while the main appeal was pending for over a year, the recent application filed on humanitarian grounds revealed that Raina's father, Abdul Jabar Raina, was critically ill and required serious liver surgery at AIIMS, New Delhi. The court noted that the ailing father had no other person to look after him, and the application was supported by medical records.

Justice Wani referred to several judgments, including Syed Ishfaq Hussain Shah & Another vs Union Territory Th. Police Station Karnah and Jaswinder Singh Vs State of J&K, where bail was granted on humanitarian grounds despite the restrictions under Section 37 of the NDPS Act.

The court also cited the Karnataka High Court's judgment in Syed Abdul Ala vs Narcotic Control Bureau, which held that Section 37 of the NDPS Act does not completely curtail the High Court's powers to grant bail under Section 439 of the Cr.P.C. The court emphasized that while Section 37 imposes restrictions when bail is considered on merits, it does not apply when bail is sought on humanitarian grounds.

The court further observed that the provisions of Section 37 of the NDPS Act operate as a partial eclipse on the powers of the High Court under Section 439 of the Cr.P.C. The court held that in cases involving compelling medical or humanitarian circumstances, the High Court retains the discretion to grant bail, notwithstanding the statutory bar under Section 37.

In light of the above observations, the court allowed Raina's interim applications for suspension of sentence and granted him bail, subject to certain conditions.

Case Title: Mohammad Junaid Raina Vs UT Of J&K

Citation: 2025 LiveLaw (JKL)

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