The limitations on granting of bail specified in Section 37 of the NDPS Act are in addition to the limitations under the Code of Criminal Procedure, and do not act as a blanket ban on the power of the High Court under Section 439 Cr. P. C.

JUDGMENT :

1. The petitioner has filed the instant bail application on medical grounds. According to the petitioner, he is facing trial for offences under Sections 8/15 of Narcotic Drugs and Psychotropic Substances Act (for brevity 'NDPS Act') arising out of FIR No. 167/2018 before the Court of learned 1st Additional Sessions, Judge Jammu.

2. It is averred that the petitioner is suffering with Chronic Myeloid Leukemia (CML) i.e., Blood Cancer and is under medical treatment of Oncologist Govt. Medical College, Jammu since 14.03.2019. It is further averred that as per the report of the Doctor petitioner needs regular follow up at Oncology Department, besides petitioner is having low immunity and there are higher chances of him contacting COVID-19 infection which could prove fatal for him and his fellow inmates. It is further contended that in view of the aforesaid serious medical condition of the petitioner he had made an application before the trial court, but the same came to be rejected vide order dated 31.08.2020. After the rejection of the bail application another medical report was called from the concerned District jail which reveals that the petitioner is under treatment of Oncologist, Govt. Medical College, Jammu as a case of Chronic Myeloid Leukemia i.e., Blood Cancer. The report further reveals that regular follow-up of petitioner is becoming difficult, as his chances of contacting COVID-19 infection are high due to his disease, as he is having low immunity.

3. Latest medical report dated 20.04.2021, pertaining to the petitioner was called from the concerned District Jail, the same reads as under :-

"Subject : Medical Report of accused Gurmeet Singh S/o Ujjagar Singh presently lodged in District Jail, Jammu.

It is certified that above mentioned inmate who is lodged in this jail is a case of Chronic Myeloid Leukemia (CML) Blood Cancer. Inmate is under treatment of HOD Oncology at GMC, Jammu. Specialists have prescribed him medicines which are been continuously given by Jail Doctors.

It is pertinent to mention here that inmate needs regular follow up at Oncology Department owing to grave nature of disease. But owing to present circumstances i.e. high prevalence of COVID-19, inmate cannot be sent to GMC as such patients have low immunity and there are higher chances of him contacting COVID-19, which could prove fatal for him and his fellow inmates on his return back from Hospital. This is for your kind information."

4. I have heard learned counsel for the parties and perused the material on record.

5. Petitioner is facing trial for commission of offences under Sections 8/15 of NDPS Act and trial of the case is under way. It is alleged that 64 Kg of poppy straw was recovered from the possession of the petitioner which is a commercial quantity. The learned trial court while rejecting the bail application of the petitioner vide order dated 31.01.2019 has noted that petitioner cannot be granted bail on the grounds projected in the application, i.e., Blood Cancer and Chemotherapy and threat of COVID-19 infection. The learned trial court found that this is not a good enough reason for enlarging the petitioner on bail and that the jail authorities can take care of the ailments of the petitioner.

6. The medical report issued by the Senior Medical Officer/Jail Authorities, District jail, Jammu clearly shows that health condition of the petitioner has deteriorated to alarming levels. The petitioner is stated to have gone into depression and the jail authorities have fairly conceded that petitioner has started staying alone and is not mixing up with fellow inmates. Medical reports further reveals that although, his counseling is been done by the Jail Doctors from time to time and he needs psychological support of his family owing to the nature of his disease.

7. The question arises whether in a case where the health condition of a person accused of having committed an offences under the NDPS, Act which bar contain in Section 37 of the said