Prakash D. Naik, J.:— This is an application for bail on medical ground. The applicant is arrested in connection with C.R. No. 20 of 2018 registered with Yellow Gate Police Station, Mumbai for offences under Sections 285, 387, 506, 120B r/w Section 34 of Penal Code, 1860 (herein after referred to as “IPC” for short) and Sections 3 & 7(2) of the Essential Commodities Act, 1955 along with clause 5 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005. Subsequently, the provisions of Sections 3(1)(ii), 3(2) & 3(4) of the Maharashtra Control of Organised Crime Act, 1999 (herein after referred to as “MCOC Act” for short) were invoked.
2. Learned counsel for the applicant submitted that the applicant is suffering from several ailments while in custody applicant had tested positive for Covid-19. On 19-09-2019 he was diagnosed with “right submandibular gland sialadenitis with adjacent right sided reactive cervical lymphadenopathy.” He was diagnosed with Granulomatous Lymphadenitis Extrapulmonary Tuberculosis. Due to the aforementioned medical condition of the Applicant, his immune system is extremely weak. All of the ailments, especially HIV, that the applicant has been diagnosed with, specifically targets his immune system and he is now extremely vulnerable to contracting other infections/viruses; especially under the prevailing circumstances of a pandemic. Apart from the risk of contracting other infections/viruses, the applicant's immune system has already deteriorated and due to his medical condition he is in constant pain due to the tumour(s) and swelling that has developed in his lymph nodes all over his body. It is pertinent to note that the CD-4 cell count of the Applicant is 550 per cubic millimeter. CD-4 cell count is used to check the health of the immune system in persons who are infected with HIV. HIV attacks and destroys CD-4 cells and once the CD-4 cell count falls to below 500 per cubic millimeter, there is a strong likelihood of the applicant developing AIDS [Acquired Immunodeficiency Syndrome] as his immune system begins to give up.
3. Learned counsel for the applicant relied upon the decisions of the Supreme Court in the case of Mr. X v. Chairman State Level Police Recruitment Board, 2005 SCC OnLine AP 1039 delivered by High Court of Andhra Pradesh. He adverted to observation made by the Court in paragraph 17 which refers to the effect of HIV. It is submitted that on account of his health condition the applicant is entitled for bail.
4. Learned Special P.P. submitted that, the applicant is the head of crime syndicate. Proper treatment is given to the applicant in jail. He tendered photo copy of the report submitted by Chief Medical Officer, Mumbai Central Prison Mumbai, dated 10 December, 2020. Relying upon the report it is contended that the applicant is not entitled for bail on medical ground. Report is taken on record.
5. The applicant has been prosecuted for the offence under the provisions MCOC Act. The previous application was preferred on the ground that the applicant was tested positive for Covid-19. Report was called from Jail. The said application was rejected on 12 June, 2020 on the ground that subsequently the report of test was negative and medical emergency not in existence. On the previous date of hearing the question relating to the maintainability of the application was kept open. It is not necessary to dwell upon the said issue in the light of report submitted by the Chief Medical Officer, I am not inclined to grant bail on medical ground. Medical report is taken on record. The report reads as follows:
“Medical report of Under trial Prisoner named Rajkishor Gunanidhi Das as follows—
Above named prisoner was suffering from cervical lymph node enlargement on and off so he was referred to J.J. Hospital on 16/09/2020. He was admitted there and thoroughly investigated. Upon investigation he was found to be suffering from HIV, Extra pulmonary Tuberculosis and chronic Cystitis. Treatment initiated and discharged on 24/09/2020.
Since then he was kept in prison hospital in TB ward. He also suffered from Herpes genitalia as a consequence of HIV. He is regularly referred to J.J. Hospital for follow ups on 1/10/2020, 15/10/2020, 31/10/2020, 13/11/2020, 27/11/2020 and 4/12/2020. To the ART, TB, Skin, Radiology (sonography) departments.
He is under close observation of prison Medical Officers in consultation with J.J. Hospital's Doctors.
He is getting home food via Hon'ble court order.
His overall health is moderately stable at present.”
6. Thus, report indicate that the applicant is under close observation of prison Medical Officers in consultation with J.J. Hospital Doctors. He was regularly referred to J.J. Hospital for follow up and his overall health is moderately stable at present. Hence, no ground is made to grant relief in this application.
7. Interim Application (st.) No. 3285 of 2020 is rejected and stands disposed of accordingly.
8. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
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