Judicial Analysis Court Copy Headnote Facts Arguments Court observation

SUPREME COURT OF INDIA
C.T. RAVIKUMAR, PRASHANT KUMAR MISHRA, JJ.
The State of Meghalaya - Petitioner
Versus
Lalrintluanga Sailo & Anr. - Respondents
Special Leave to Appeal (Crl.) No(s). 16021 of 2023
Decided On : 16-07-2024

Advocates:
For Petitioner(s) Mr. Amit Kumar, Sr. Adv. Mr. Avijit Mani Tripathi, AOR Ms. Rekha Bakshi, Adv. Mr. T.k. Nayak, Adv. Ms. Marbiang Khongwir, Adv.

IMPORTANT POINT
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.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 37(1)(b)(ii) – Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 – Section 34(2) – Grant of bail – Appeal against – FIR registered for offences under Sections 21(c)/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 – In cases involving commercial quantity of narcotic drugs or psychotropic substances, while considering application of bail, Court is bound to ensure satisfaction of conditions under Section 37(1)(b)(ii) of NDPS Act – 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 – Recording finding mandated under Section 37 of NDPS Act, which is sine qua non for granting bail to accused under NDPS Act cannot be avoided while passing orders on such applications – When accused is involved in offences under Section 21(c)/29 of NDPS Act on more than one occasion and when quantity of contraband substance is much above commercial quantity, then non-consideration of provisions under Section 37, NDPS Act, has to be taken as a very serious lapse – Twin conditions under Section 37 of NDPS Act, are not satisfied and on sole reason that accused is a HIV patient, cannot be a reason to enlarge her on bail – Impugned order set aside – In view of fact that accused is HIV positive she is entitled to benefit under Section 34(2) of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017. (Paras 5, 8, 10, 11 and 12)
Facts of the case:
FIR was registered against respondent-accused on 08.02.2023 for offences under Sections 21(c)/29 of Narcotic Drugs and Psychotropic Substances Act, 1985. It is subsequent grant of bail, sans satisfactory consideration of twin conditions under Section 37(1)(b)(ii) of NDPS Act that constrained State to approach this Court with Special Leave Petition.
Findings of Court:
Trial Court shall take appropriate steps to expedite trial on priority basis and to dispose of case as early as possible.
Result : Special Leave Petition disposed of.

Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

When considering bail applications for accused persons involved in offences under the NDPS Act, a liberal approach that ignores the mandatory provisions of Section 37(1)(b)(ii) is not permissible. The court must record specific findings as mandated under Section 37 before granting bail, especially in cases involving commercial quantities of narcotic drugs or psychotropic substances (!) (!) .
The twin conditions under Section 37(1)(b)(ii) of the NDPS Act are cumulative and must be satisfied. These conditions require the court to be satisfied that there are reasonable grounds to believe the accused is not guilty of the offence and that the accused is not likely to commit any offence while on bail. Satisfaction must be based on reasonable grounds and cannot be bypassed (!) (!) .
The object of the NDPS Act is to regulate and control narcotic drugs and psychotropic substances stringently, with a focus on preventing illicit traffic and ensuring compliance with international conventions (!) .
In cases involving a significant quantity of contraband, particularly above the commercial threshold, the failure to consider the provisions of Section 37(1)(b)(ii) when granting bail is a serious lapse. Bail should not be granted solely on grounds such as the accused's health condition, especially when the involvement and quantity of contraband are substantial (!) .
The order granting bail without proper consideration of the statutory requirements can be set aside, and the accused may be directed to surrender to the trial court within a specified period. The court shall also cancel any bail bonds and discharge sureties upon the accused's surrender (!) .
The fact that an accused is HIV positive does not automatically justify bail, but such individuals are entitled to benefit under relevant provisions that prioritize their legal proceedings. The trial court must expedite the case and dispose of it on a priority basis, considering their health condition (!) (!) (!) .
Overall, adherence to statutory provisions and procedural safeguards is essential in bail matters under the NDPS Act, and non-compliance warrants judicial correction to uphold the integrity of the legal process (!) (!) .

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ORDER :

1. The State of Meghalaya filed the captioned Special Leave Petition challenging the order dated 29.09.2023 passed in Bail Application No. 38/2023 by the High Court of Meghalaya at Shillong.

2. FIR No.06(02)23 was registered against the respondent-accused (Smt. X) on 08.02.2023 for offences under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Anonymization as relates the identity of the respondent-accused as ‘Smt.X’ has been done, as she is Human Immunodeficiency Virus (HIV) positive. Virtually, from 16.03.2023 onwards, Smt. X was in judicial custody in connection with the crime bearing FIR No.22(03)2023 registered at Khliehriat Police Station under Sections 21(c)/29 of the NDPS Act and her formal arrest in the subject Crime was recorded on 11.04.2023 during such custody. While so, as per the order dated 27.06.2023, the High Court of Meghalaya at Shillong granted bail in connection with FIR No.22(03)2023 on the solitary ground of her being HIV positive.

3. It is the subsequent grant of bail on 29.09.2023 in connection with FIR No.06(02)23, sans satisfactory consideration of the twin conditions under Section 37(1)(b)(ii) of the NDPS Act that constrained the State to approach this Court with the captioned Special Leave Petition. As a matter of fact, the bail application that culminated in the said order dated 29.09.2023 was moved by the son of the accused-Smt.X, on her behalf.

4. Heard learned Advocate General Shri Amit Kumar for the State of Meghalaya. Earlier, notice was issued to the respondents and despite being served respondent No.1, the son of Smt. X, through whom B.A. No.38/2023 which culminated in the impugned order was moved, did not enter appearance. Later, bailable warrant was issued against the Smt. X. The report annexed to the office report would reveal that bailable warrant was executed on 02.07.2024 and Smt. X was released on bail with the instructions to appear before this Court on 16.07.2024 at 10.30 a.m. However, the respondent-accused failed to appear before the Court when this matter was taken up for consideration. In this context, it is to be noted that in the order impugned dated 29.09.2023, whereby Smt. X was granted bail, itself one of the conditions is that she should co-operate with the process of the court concerned. Be that as it may, we will now proceed to consider the challenge against the order dated 29.09.2023.

5. There cannot be any doubt with respect to the position that in cases involving commercial quantity of narcotic drugs or psychotropic substances, while considering the application of bail, the Court is bound to ensure the satisfaction of conditions under Section 37(1)(b)(ii) of the NDPS Act. The said provision reads thus: -

“37(1)(b)(ii)- where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

6. While considering the cases under NDPS Act, one cannot be oblivious of the objects and reasons for bringing the said enactment after repealing the then existing laws relating to the Narcotic drugs. The object and reasons given in the acts itself reads thus: -

"An act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith."

In the decision in Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, the three judge bench of this Court considered the provisions under Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with regard to the expression “reasonable

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