Prisoners' Rights | Calcutta High Court Grants Interim Bail To HIV Positive NDPS Accused "To Ensure Better Treatment"

A division bench of Justices Ajay Kumar Gupta and Joymalya Bagchi said,

"Sub-section (1) of the Section 31 of the Act of 2017 entitles every person in the care and custody of the State to HIV treatment services in accordance with the guidelines issued under the Act. In view of the aforesaid fact, we are of the opinion in order to ensure better treatment of the petitioner as per the guidelines she may be released on interim bail."

The petitioner had relied on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 to state that she is entitled to treatment as per the guidelines issued under the provisions of the Act. She was booked under Sections 20(b)(ii)(c) and 29 of the NDPS Act and sought bail on medical grounds.

Section 31 read with Section 34(2) of the Act provide for the treatment and care of HIV patients in custody of State, and for prioritized disposal of applications of such persons in legal proceedings, respectively.

She submitted that she was diagnosed in April 2021 and was not able to get proper treatment in the correctional home. Accordingly, she submitted that since she was entitled to proper care in the custody of the State while in detention, and since the State had failed to provide proper treatment to her, she was entitled to be released on bail.

The petitioner also placed reliance on Bhawani Singh v. State of Rajasthan, Special Leave to Appeal (Crl.) No. 2225 of 2022, where the Supreme Court granted bail to an accused suffering from HIV on the ground that due to immune compromised, he was at risk of having repeated infection in unhygienic condition and basis that the patient required regular treatment and follow up.

The Public Prosecutor opposed the bail plea on the ground that the applicant was suffering from HIV prior to commission of the offence under the NDPS Act. It was submitted that 28.190 Kgs of ganja was recovered from the possession of the accused and considering the commercial quantity of narcotic substance and in view of the embargo under Section 37 of the NDPS Act, she was not entitled to be released on bail.

The Court, in an earlier order, had called for a report from the correctional home where she was detained to ascertain whether or not she was getting proper care and treatment, after receipt of which report, the Court stated it shall consider the bail plea under Section 439 of CrPC.

"Section 31 of the said Act states that a person suffering from HIV is entitled to get care and custody of the State in respect of his/her treatment in accordance with the guidelines issued in this regard. Sub-Section 2 of Section 31 states that the persons in the care and custody of the State include persons awaiting trial. In view of the above statutory provision, the petitioner is entitled to have due care and custody of the State as she is a patient suffering from HIV," Court said.

Case Title: In Re: Tulu Biswas

Citation: C. R. M. (NDPS) 1261 of 2022

Coram: Justice Ajay Kumar Gupta and Justice Joymalya Bagchi

Citation: 2022 LiveLaw (Cal) 346  

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