Bail applicants charged under the NDPS Act are excluded from interim bail benefits under HPC guidelines, maintaining equality among prisoners despite humanitarian grounds.

JUDGMENT

Subramonium Prasad, J.

CRL.M.A.14742/2021 (Exemption)

Allowed, subject to all just exceptions.

BAIL APPLN. 3433/2021

1. This application under Section 439 Cr.P.C. is for grant of interim bail to the petitioner in FIR No.54/2020 dated 24.02.2020, registered at Police Station Crime Branch, New Delhi for offence punishable under Section 20 of the NDPS Act, 1985.

2. The petitioner is in custody since 24.02.2020.

3. The learned Additional Sessions Judge/Special Judge, NDPS (Central), Tis Hazari Courts, Delhi, had granted interim bail to the petitioner vide order dated 04.05.2021 on the ground that the petitioner's wife had tested positive for COVID-19. The interim bail granted to the petitioner was purely on humanitarian ground. The interim bail of the petitioner was extended from time to time till 21.06.2021 by the learned Trial Court. The petitioner had surrendered on 21.06.2021, and since then he is in judicial custody.

4. The petitioner approached the learned Trial Court by filing an application for grant of interim bail on the ground that he is entitled to the benefit of the orders dated 09.07.2021 and 13.08.2021, passed by the Bench of three Judges of the Hon'ble High Court of Delhi in W.P.(C) 4921/2021 titled Courts on its own motion vs. State (Govt. of NCT of Delhi). However, the said bail application of the petitioner was dismissed by the learned Additional Sessions Judge/Special Judge, NDPS (Central), Tis Hazari Courts, Delhi vide order dated 09.09.2021.

5. The petitioner has approached this Court by filing the instant bail application purely on the ground that the Bench of three Judges of this Court in W.P.(C) 4921/2021 dated 20.04.2021, had ordered that in all the matters pending before this Court and Courts subordinate to this Court in which interim orders have been issued and were subsisting as on 19.04.2021 would shall automatically be extended till 16.07.2021 or until further orders. It is contended that the said order dated 20.04.2021 was also made applicable in favour of those persons, in whose favour interim orders/bail orders were passed between 20.04.2021 and 16.07.2021. The petitioner, therefore, claimed that if he had known about the said order, he would not have surrendered. It is stated that the petitioner should also be given the benefit of the order dated 09.07.2021, passed by the Bench of three Judges of the Hon'ble High Court of Delhi in W.P.(C) 4921/2021.

6. The Supreme Court in Suo Motu Petition (Civil) No.01/2020 had directed the High Courts to constitute a High Powered Committee to frame guidelines to de-congest the prisons. The High Court of Delhi constituted a High Powered Committee. In the HPC guidelines dated 04.05.2021 the HPC had identified several categories of under trial prisoners, who could be granted the benefit of HPC guidelines who could be released on interim bail under the HPC guidelines in order to de-congest the prisons so that COVID-19 does not spread in prisons. The HPC guidelines dated 04.05.2021 also laid down the specific categories of under trial prisoners, who were not entitled to the benefit of the HPC guidelines. The said categories read as under:

"(i) Those inmates who are undergoing trial for intermediary/large quantity recovery under NDPS Act;

(ii) Those under trial prisoners who are facing trial under Section 4 &6 of POCSO Act;

(iii) Those under trial prisoners who are facing trial for offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, and 376E and Acid Attack;

(iv) Those UTPs who are foreign nationals;

(v) Those under trial prisoners who are facing trial under Prevention of