JUDGEMENT

29.02.2024 Savitri Ratho, J. 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 Section 37 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 Appeal (Crl.) No. 2225 of 2022 disposed of on 11.04.2022 .

7. Mr. M.R. Mishra, learned Additional Standing counsel opposes the prayer for bail stating that 26.720 gm of Brown Sugar has been seized from t