HIGH COURT OF JAMMU AND KASHMIR & LADAKH

AT JAMMU

Bail App No. 333/2022

Shabir Ahmed Dar

...Petitioner(s)

Through :- Mr. Rohit Verma, Adv.

v.

UT of J&K

.....Respondent (s)

Through:-

Mr. Vishal Bharti, Dy. AG

Coram:

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

ORDER

22.11.2023

1.

By virtue of instant application, the applicant, an under trial prisoner in

FIR No. 372/2021, for offences under Sections 8/15/25/29 of NDPS Act seeks

indulgence of this Court for his enlargement on temporary bail on the solitary

premise of life threatening aliment of his wife. A similar application filed by the

applicant did not find favour with learned Principal Sessions Judge, Samba

(Special Judge under NDPS Act) as same was dismissed on 18.08.2022.

2.

A perusal of the record shows that applicant came to be arrested in the

aforesaid FIR on 27.12.2021 by the concerned Police when 436.5 kilograms of

poppy straw was recovered from his possession. Admittedly the contraband

recovered from the possession of the applicant is a commercial quantity and

rigors of section 37 of NDPS Act are attracted in the present case. However

perusal of the record reveals that wife of the applicant namely Tasleema is found

to have a large solid cyst in her ovaries and has been advised immediate surgical

intervention by the doctors. Respondent-UT has also verified that wife of the

applicant is suffering from Ovarian cyst and doctors have advised her to proceed

for ovarian Cystectomy.

2 Bail App. No. 333/2023

3.

It goes without saying that right to life is one of the basic human rights and

it includes right to health as held by Hon’ble Supreme Court in State of Punjab

and ors. v. Mohinder Singh Chawla and ors. reported as AIR 1997 SC 1225.

Therefore, the health condition of an accused or any member of his family

dependent upon him deserves utmost importance and indulgence of the Court.

Every person has a right to proper medical care and a short term bail or an

interim bail for that matter should not be restricted when life of a person is in

peril.

4.

True, it is that offences alleged against the applicant are serious in nature,

which attract rigors of Section 37 of NDPS and applicant cannot claim bail as a

matter of right. However, having regard to the health condition of the wife of the

applicant, the medical records being furnished in this respect and the same being

verified by the respondents as authentic and on perusal of precedents of various

courts across the country including the Apex Court regarding temporary bail or

interim bail in such emergent situation warranting immediate medical attention,

the present application is liable to be allowed.

5.

In view of the entirety of the matter, the applicant is admitted to temporary

bail for a period of four weeks from the date of passing of this order so as to

enable him to avail appropriate medical treatment for his wife, subject to the

following conditions that:

i.

he shall furnish two surety bonds in the amount of Rs.2.00 lac each

and a bond of personal recognizance of a like amount to the

satisfaction of learned trial court;

ii.

he shall surrender his passport in the trial court and shall not leave

territorial jurisdiction of the trial court without prior permission;

iii.

he shall not directly or indirectly influence the prosecution witnesses

or tamper with the prosecution evidence;

iv.

he shall not be involved in any criminal activity/activities and shall

not abuse the temporary bail granted to him for any purpose; and

v.

he shall surrender before the Superintendent, District Jail, Kathua on

the expiry of the interim bail, failing which, bail shall be deemed

cancelled and his bail bonds shall stand forfeited.

3 Bail App. No. 333/2023