SOM NATH v. NCB

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2. The facts of the case, as per the averments made in the petition, are that on 19.10.2022, the respondent-NCB received a secret information that two persons, namely, Som Nath (petitioner herein) and Ram Singh were coming from Bhunter side in a white coloured car bearing registration No.PB- 07G-2400, who were involved in trafficking of charas. Thereafter, the aforesaid vehicle was stopped by the NCB at place Bajora by-pass and during search of the vehicle, 13 packets wrapped with brown coloured tape were recovered near upper side of tyre and on weighing the same, those were found to be containing 3 kg 430 grams of charas. Thereafter, the NCB completed the codal formalities and arrested both the accused.

3. Learned counsel for the petitioner contended that the petitioner is innocent and he has been falsely implicated in this case. He further contended that the petitioner is a senior citizen and is behind the bars since 20.10.2022 and is suffering from cardiovascular ailments for the last more than one year. During judicial custody, he was medically checked up at Civil Hospital Kullu in the month of November, 2022, but when his medical conditions were not improved, he was referred to AIIMS

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Bilaspur. He was released on temporary bail by this Court, vide order dated 21.09.2023, on medical grounds for a period of six weeks, which was further extended by six weeks, vide order dated 08.11.2023. It has further been averred in the petition that the petitioner is still under medication and observation and there is likelihood to have infection and other medical ailments in jail premises, hence, he requires family care and better health facilities for improvement, therefore, it is prayed that he may be ordered to be released on bail keeping in view his health condition and also that the investigation of the case is complete and the charge-sheet has been filed in the competent Court of law.

4. Per contra, the learned Senior Counsel for the respondent-NCB opposed the bail application on the ground that the petitioner does not deserve to be released on bail as he has been found involved in a serious offence of possessing commercial quantity of charas, weighing 3 Kg 430 grams.

5. Since quantity of the contraband falls within the definition of commercial quantity, therefore, the grant of bail in this case is governed by the provisions of Section 37 of the

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NDPS Act. The Hon'ble Apex Court in the matter of The State (NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha, (2021) 5 SCC 724, has held that no person accused for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. The relevant portion of the said judgment is reproduced hereunder:-

"9. .......Section 37 of the NDPS Act stipulates that no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be released on bail, where the public prosecutor opposes the application, unless 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. Thus, in view of the aforesaid decision of Hon'ble Apex Court, unless the conditions as laid down under Section 37 of the NDPS Act are satisfied, the bail cannot be granted to an accused, who has been found involved in the commercial quantity of the contraband under the provisions of the NDPS Act. Moreover, the limitations on granting of bail specified in clause (b) of sub-section (1) of Section 37 of the NDPS Act are

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in addition to the limitations under the Code of Criminal Procedure. In the instant case, the quantity of the charas involved is 3 Kg 430 grams, however, the petitioner has failed to satisfy the twin conditions for grant of bail as provided under Section 37 of the NDPS Act.

7. Now, the question which arises for consideration before this Court is as to whether the petitioner has made out a case for releasing him on bail on medical grounds. As already observed, the petitioner is accused of committing an offence which would normally attract the rigors of Section 37 of the NDPS Act. It is settled law that in the absence of compelling reasons warranting grant of bail on medical grounds, the Courts shall not exercise their discretion in granting bail to the accused. Exercise of discretion depends on the facts and circumstances of each case, and the thumb rule essentially is the nature of the sickness, health condition as well as availability of specialized and sustained medical treatment to the inmates confined within the four walls of the jail. The Hon'ble Supreme Court in a catena of judgments held that where an individual seeks bail on medical grounds, it shall be granted only in cases where the

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requisite medical facilities cannot be provided by the jail authorities. Reliance in this regard is placed on the decisions of the Supreme Court in State Vs. Jaspal Singh Gill(1984) 3 SCC 555 and State of Uttar Pradesh Vs. Gayatri Prasad Prajapati, AIR 2020 SC 5014. The discretion vested in Courts to grant bail on medical grounds should be exercised in a sparing and cautious manner and every nature of sickness will not entitle the accused to be released on bail unless it is demonstrated that the sickness is of such a nature that if the accused is not released, he cannot get proper treatment.

8. In the instant case, the petitioner was granted interim bail by this Court on medical ground for a period of six months, vide order dated 21.09.2023 and thereafter the interim bail was further extended till 21.12.2023, vide order dated 08.11.2023. The petitioner has again approached this Court by way of present bail petition to grant him regular bail on medical grounds. On 04.01.2024, this Court directed Medical Superintendent, All India Institute of Medical Sciences (AIIMS), Bilaspur to constitute a medical board and give report about the health condition of the petitioner. Pursuant to the direction of

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this Court, the Medical Superintendent, AIIMS, Bilaspur submitted his report, relevant portion whereof reads as under:-

"As per the inputs from cardiology and CTVS and assessment by members of medical board patient requires CABG for which facility is currently not available at AIIMS Bilaspur and as per opinion of CTVS consultant it can be availed at IGMC Shimla or PGIMER Chandigarh and hence patient may be referred to a center with CABG facility".

9. Thus the aforesaid report indicates that the petitioner requires coronary artery bypass graft (CABG), for which the facility is currently not available at AIIMS Bilaspur, which can be availed at IGMC, Shimla or PGIMER, Chandigarh. No material has been brought on record by the petitioner that he cannot be medically treated at IGMC, Shimla or PGIMER, Chandigarh while in custody. Moreover, the ailment of the petitioner is not of such a nature which would call for release on bail solely on health grounds. The petitioner is not suffering from such ailments which cannot be treated at IGMC, Shimla/PGIMER, Chandigarh. Therefore, no case for the release of the petitioner on bail on medical grounds has been made out.

10. In view of the facts and circumstances of the present case and in the absence of compelling reasons warranting grant of bail on medical grounds, this Court is not inclined to exercise

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discretion in granting bail to the petitioner. Hence, the plea of the petitioner for granting him bail on medical grounds is dismissed. However, to meet the exigency of the situation, the Jail Superintendent, Sub-Jail, Bilaspur is directed to make arrangements to take the petitioner under the police escort to IGMC, Shimla for treatment, immediately. It would be open for the competent Medical Officer to refer the petitioner to PGIMER, Chandigarh for further treatment,as and when the situation demands. After the petitioner is lodged back in jail, the Jail Superintendent, Sub-Jail, Bilaspur shall take the petitioner for follow-up to IGMC, Shimla/PGIMER, Chandigarh as and when advised by the concerned Medical Officer. One of the immediate family members of the petitioner is permitted to attend to the petitioner in case he is admitted in Hospital. Registry is directed to send a copy of this order to Jail Superintendent, Sub-Jail, Bilaspur forthwith.

11. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.

( Sushil Kukreja ) April 05, 2024 Judge

(VH)