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IN THE HIGH COURT OF ORISSA AT CUTTACK
SAVITRI RATHO, J.
“B” – Appellant
Versus
State of Odisha – Respondent
BLAPL No. 434 of 2024
Decided On : 29-02-2024
| Table of Content |
|---|
| 1. recap of case history and bail applications (Para 1 , 2 , 3) |
| 2. argument regarding treatment and conditions in jail (Para 4 , 6) |
| 3. condition and rights of the petitioner as hiv+ (Para 5 , 11) |
| 4. court's reasoning supporting bail grant despite antecedents (Para 8 , 12) |
| 5. final decision and order for bail (Para 13 , 14 , 15) |
JUDGMENT :
SAVITRI RATHO, J.
1. This is the third application of the petitioner under Section 439 of the Cr.P.C. in connection with Dhenkanal Sadar P.S. case No. 660 of 2023 corresponding to C.T. (Special) Case No. 11 of 2023 pending in the Court of the learned Judge, Special Court, Dhenkanal, under Section 21 (b) of the N.D.P.S. Act.
2. BLAPL No.10664 of 2023 filed by the petitioner and co-accused Jitu @ Jitendra Pradhan had been disposed of on 05.10.2023 granting liberty to the petitioner to move for bail afresh after completion of the investigation.
3. BLAPL No. 13029 of 2023 had been filed by the petitioner and co-accused Jitu @ Jitendra Pradhan after completion of the investigation. On 21.11.2023, the prayer for bail of the co-accused Jitu @ Jitendra Pradhan had been allowed, while the prayer of the petitioner had been rejected as he had one criminal antecedent under Section 20 (b)(ii)(B) of the NDPS Act, but liberty had been granted to the petitioner to move the learned Court below for bail afresh after annexing his medical documents as submission had been made that the petitioner is suffering from HIV AIDs and needs regular treatment and monitoring.
4. Thereafter, the petitioner has moved the learned Court below for bail and his prayer for bail has been rejected on 30.11.2023. While rejecting the prayer for bail, the learned Court below has observed as follows:
“Though the learned counsel for the accused by filing a document before this Court has submitted that the accused is a chronic HIV/AIDs patient, that cannot be considered as change circumstance as the Jail Authority, Dist. Jail, Dhenkanal must have taken care of him by giving proper treatment to him for the aforesaid disease.”
5. Report had been called for from the Superintendent Dist. Jail on 07.02.2024. The report of the Medical Officer, District Jail, Dhenkanal reveals that the petitioner had been admitted to District Jail, Dhenkanal on 08.08.2023 with the green booklet from ARTC S.C.B. Medical College & Hospital, Cuttack, which indicates that he is suffering from H.I.V. (+ve) from 30.03.2009. Since the time he has been in the District jail, Dhenkanal, he is taking ART, AS prescribed by ARTC SCB MCH, Cuttack, regularly and he is going to SCB MCH, every month from health check up at ARTC and he is taking ART regularly and in stable condition.
6. Mr. Rakesh Kumar Das, learned counsel appearing for the petitioner submits that the petitioner is in custody since 08.08.2023 and in BLAPL No. 13029 of 2023, liberty has been granted to the petitioner to move the learned Court below for bail afresh along with his medical documents but his prayer has been rejected on the ground that the jail authorities must be looking after him. He submits that although it has been stated by the jail authorities that the petitioner is being given treatment in jail, but considering the nature of his ailment, he is not able to lead a normal life inside the jail, as the other inmates are avoiding contact with him, for which he is leading a secluded and miserable life in jail. He further submits that under Section 437 of the Cr.P.C., a sick or infirm person is entitled to be released on bail. He finally submits that in view of the quantity of brown sugar allegedly seized from his exclusive and conscious possession, Section 37 of the N.D.P.S. Act will not be a bar for consideration of his prayer for bail and his criminal antecedent is one under Section 20 (B) (ii) B of the NDPS Act which does not attract the restrictions under of the NDPS Act. He relies on the decision of the Supreme Court in the case of Bhawani Singh vs. State of Rajasthan in Special Leave to
The court affirmed that individuals suffering from HIV/AIDS are entitled to humane treatment and may be granted bail even with criminal antecedents, considering the impact of incarceration on their h....
The court reaffirmed that bail under the NDPS Act requires strict adherence to Section 37(1)(b)(ii), emphasizing that health conditions alone do not justify bail in serious drug offenses.
Grant of bail – While considering application for bail made by accused involved in offence under NDPS Act liberal approach ignoring mandate under Section 37 of NDPS Act is impermissible.
Prolonged incarceration and lack of criminal history can justify bail under the NDPS Act, overriding statutory restrictions.
The right to a speedy trial under Article 21 supersedes statutory restrictions on bail under the NDPS Act, allowing for bail even in cases with prior criminal antecedents.
Prolonged incarceration due to prosecution delays can allow bail despite statutory restrictions under the NDPS Act, as it violates the fundamental right under Article 21 of the Constitution.
The right to a speedy trial can necessitate granting bail even under stringent conditions, particularly when incarceration exceeds reasonable limits.
The court can relax statutory bail conditions under the NDPS Act for first-time offenders awaiting trial to uphold the right to a speedy trial.
Prolonged custody without trial, combined with completed investigation, can justify granting bail under Article 21, even with serious charges under the NDPS Act.
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