The court upheld the petitioner's fundamental rights to participate in the funeral rites of his father, invoking Section 37(1)(b)(ii) of the NDPS Act and Section 482 of the Code of Criminal Procedure.

ORDER :

(Prayer : To enlarge the petitioner/Accused on interim Bail in Crime No.264/2023 on the file of the respondent police.)

The Court made the following Order :-

Heard both sides.

2. The petitioner was arrested and remanded to judicial custody on 13.06.2023 for the offences under Sections 20(b)(ii)(C), 29(1) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 in Crime No.264 of 2023 on the file of the respondent police.

3. The petitioner's father passed away on 10.02.2024. The petitioner wanting to participate in the funeral rites seeks interim bail.

4. Considering the urgency of the situation, the Hon'ble Administrative Judge had directed me to hold special sitting and dispose of this petition.

5. The learned counsel appearing for the petitioner relies on the order dated 04.02.2024 made in Crl.O.P.(MD)No.1793 of 2024 and submits that in similar situation, interim bail was granted. I am not persuaded by the said submission.

6. As rightly pointed out by the learned Government Advocate (Crl.Side) appearing for the respondent, the Court while granting bail in cases involving commercial quantity will have to bear in mind the parameters laid down under Section 37 of the NDPS Act, 1985. Section 37(1)(b)(ii) of the NDPS Act states that the Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence in question and that he is not likely to commit any offence while on bail. Of course, this restriction will be applicable only if the offences involved are Sections 19, 23, 27(A) or if the offence involves commercial quantity. In this case, the petitioner was allegedly found in possession of 24 KG of Ganja. It is a commercial quantity and hence Section 37(1)(b)(ii) of NDPS Act will come into play.

7. Of course this restriction has to be borne in mind only if the Government Advocate (Crl.Side) opposes the application and not otherwise. In this case, the learned Government Advocate (Crl.Side) categorically states that he is opposing the petitioner's application. He points out that the petitioner is having two previous cases in Crime No.116 of 2022 for the offences under Sections 294(b), 323, 324 and 506(ii) IPC on the file of the Manamadurai Town Police Station and in Crime No.43 of 2022 for the offence under Section 8(C) r/w 20(b)(ii)(B) of NDPS Act on the file of the Mandamadurai Town Police Station. Therefore, this Court cannot render any finding that the petitioner is not likely to commit any offence while on bail.

8. Section 37 of the NDPS Act applies not only for grant of bail but also for grant of interim bail. In other words, even while granting interim bail, the Court concerned will have to be mindful of the restrictions set out under Section 37 of the NDPS Act. I therefore reject the petitioner's request for grant of interim bail.

9. Though I decline the petitioner's request for grant of interim bail, I have to be mindful of the petitioner's fundamental rights. His father had passed away. This fact is not denied by the respondent. As a son, the petitioner will have to participate in the final rites of his father.

10. Even a dead person must be deemed to possess certain rights. Of course this expression 'rights' will have to be understood contextually. A dead person is entitled to a dignified cremation/burial. This would of course mean that close relatives can participate in the ceremony. This issue can be approached from another perspective also. The right to practise one's religion is a guaranteed fundamental right under Article 25 of the Constitution. The petitioner is a Hindu. As a son, he has to discharge certain religious obligations. He has to offer what is known as 'Pinda'. If one is the eldest son, it is he who alone can light the pyre. These are matters of religion and the Court has to necessarily have due regard for the same. While I cannot grant bail, I can certainly issue direction by invoking the inherent power under Section 482 of the Code o