Introduction:
In a significant ruling, the High Court of Jammu & Kashmir and Ladakh, Srinagar Wing, addressed the delicate balance between the stringent provisions of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and humanitarian concerns. The case involved a 71-year-old petitioner, Mohammad Shafi Gojar, who sought temporary bail on medical grounds. The petitioner was facing trial under Sections 8, 20, 29, and 27-A of the NDPS Act, with allegations of possession of 12 kilograms of charas and Rs. 5.64 lakhs in cash, categorizing the case under commercial quantity and invoking the stringent limitations of Section 37 of the NDPS Act.
Arguments:
Petitioner’s Arguments:
Represented by Advocate Mr. Parvaiz Wani, the petitioner contended that due to his advanced age and deteriorating health, he was suffering from multiple ailments, including severe lower back pain with radiolopathy and bilateral femur pain. Despite continuous medication, there was no improvement in his condition, rendering him wholly dependent on fellow inmates for basic daily activities. The petitioner argued that his health condition warranted temporary bail on humanitarian grounds.
Respondent’s Arguments:
On the other hand, Government Advocate Mr. Nauman Idrees Malik opposed the bail plea, emphasizing the serious nature of the offence and the substantial quantity of contraband recovered from the petitioner. He insisted that the bail plea be rejected in view of the statutory bar under Section 37 of the NDPS Act, which restricts the granting of bail in cases involving commercial quantities of narcotics.
Court’s Judgment:
Justice Sanjay Dhar, after perusing the medical report submitted by the District Jail Kupwara authorities, observed that the petitioner was indeed suffering from severe ailments with no signs of improvement. The court noted that the petitioner was dependent on others even for daily chores due to his health and advanced age. Criticizing the trial court’s approach, Justice Dhar stated that it “got swayed by the heinousness of the offence alleged to have been committed by the petitioner and, without appreciating the seriousness of the ailment, observed that he is being treated well inside the jail.”
The court emphasized that the provisions of Section 37 of the NDPS Act come into play only when bail of a person accused of an offence involving commercial quantity of contraband is being considered on merits. The limitations contained therein would not come into play when bail is to be granted on humanitarian grounds like medical grounds. Citing the precedent set in Sajad Ahmad Bhat v. UT of J&K, 2022 SCC Online J&K 453, the court reiterated that the powers of the High Court under Section 439 Cr.P.C. are not curtailed, and the provisions contained in Section 37 of the NDPS Act do not act as a blanket ban on the power of the High Court under Section 439 Cr.P.C.
Acknowledging the deteriorating medical condition of the petitioner and the difficulty faced by the jail authorities in managing his care, the court granted him temporary bail for a period of two months, subject to certain conditions. The court’s decision underscores the importance of considering humanitarian grounds, such as health issues, even in cases involving serious offences under the NDPS Act.