Full Judgment Text
2024 INSC 537
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave to Appeal (Crl.) No(s). 16021/2023
The State of Meghalaya …. Petitioner (s)
Versus
Lalrintluanga Sailo & Anr. …. Respondent (s)
O R D E R
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.
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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
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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
1
Nodira , 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 grounds” used therein. This Court held that it means
something more than the prima facie grounds and that it contemplates substantial
and probable causes for believing that the accused is not guilty of the alleged
offence. Furthermore, it was held that the reasonable belief contemplated in the
1
(2004) 3 SCC 549
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provision would require existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused is not guilty of the
alleged offence.
As relates the twin conditions under Section 37(1)(b)(ii) of the NDPS Act,
viz., that, firstly, there are reasonable grounds for believing that the accused is
not guilty of such offence and, secondly, he is not likely to commit any offence
while on bail it was held therein that they are cumulative and not alternative.
Satisfaction of existence of those twin conditions had to be based on the
‘reasonable grounds’, as referred above.
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7. In the decision in State of Kerala and Ors. v. Rajesh and Ors. , after
reiterating the broad parameters laid down by this Court to be followed while
considering an application for bail moved by an accused involved in offences
under the NDPS Act, in paragraph 18 thereof this Court held that the scheme of
Section 37 of the NDPS Act would reveal that the exercise of power to grant bail
in such cases is not only subject to the limitations contained under Section 439 of
the Code of Criminal Procedure, but also subject to the limitation placed by
Section 37(1)(b)(ii), NDPS Act. Further it was held that in case one of the two
conditions thereunder is not satisfied the ban for granting bail would operate.
8. Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and the
decisions referred supra revealing the consistent view of this Court that while
considering the application for bail made by an accused involved in an offence
2
(2020) 12 SCC 122
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under NDPS Act a liberal approach ignoring the mandate under Section 37 of the
NDPS Act is impermissible. Recording a finding mandated under Section 37 of
the NDPS Act, which is sine qua non for granting bail to an accused under the
NDPS Act cannot be avoided while passing orders on such applications.
9. The materials on record would reveal that earlier Smt. X was enlarged on
bail by the High Court as per order dated 27.06.2023 in connection with FIR
No.22(03)2023, involving the quantity of 55.68 grams of Heroin, despite the
opposition of the public prosecutor, taking note of her being HIV positive. In the
said order it is stated thus: -
“30. Accordingly, on this ground alone, the application for grant of bail is
hereby allowed.”
10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29 of the NDPS
Act, would reveal that the quantity of the contraband involved is 1.040 kgs of
heroin. The impugned order granting bail to accused-Smt. X, dated 29.09.2023
would reveal, this time also, the bail was granted on the ground that she is
suffering from HIV and conspicuously, without adverting to the mandate under
Section 37(1)(b)(ii), NDPS Act, even after taking note of the fact that the rigour of
Section 37, NDPS Act, calls for consideration in view of the involvement of
commercial quantity of the contraband substance. When the accused is involved
in offences under Section 21(c)/29 of NDPS Act, more than one occasion and
when the quantity of the contraband substance viz., heroin is 1.040 Kgs, much
above the commercial quantity, then the non-consideration of the provisions
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under Section 37, NDPS Act, has to be taken as a very serious lapse. In cases of
like nature, granting bail solely on the ground mentioned, relying on the
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decision in Bhawani Singh v. State of Rajasthan would not only go against the
spirit of the said decision but also would give a wrong message to the society that
being a patient of such a disease is a license to indulge in such serious offences
with impunity. In the contextual situation it is to be noted that in Bhawani Singh’s
case the offence(s) involved was not one under the NDPS Act. We have no
hesitation to say that in the above circumstances it can only be held that the twin
conditions under Section 37 of the NDPS Act, are not satisfied and on the sole
reason that the accused is a HIV patient, cannot be a reason to enlarge her on
bail. Since the impugned order was passed without adhering to the said
provision and in view of the rigour thereunder the accused-Smt.X is not entitled
to be released on bail, the impugned order invites interference.
11. Consequently, the impugned order is set aside. The accused-Smt.X shall
surrender before the trial Court within a week from today and in case of her
failure to do so, she shall be taken into custody in accordance with law. Upon
such surrender/production of the accused before the trial Court, it shall cancel
the bail bond of the accused and discharge the sureties.
12. In view of the indisputable fact that Smt. X is HIV positive she is entitled to
the benefit under Section 34(2) of the Human Immunodeficiency Virus and
Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017,
3
2022 SCC OnLine SC 1991
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which reads thus: -
“34. ...
...
(2). In any legal proceeding concerning or relating to an HIV-positive
person, the court shall take up and dispose of the proceeding on
priority basis.”
13. In view of the said provision the trial Court shall take appropriate steps to
expedite the trial on priority basis and to dispose of the case as early as
possible.
14. The Special Leave Petition is disposed of, as above.
15. Pending application(s), if any, stands disposed of.
.……………………, J.
(C.T. Ravikumar)
……………………….……, J.
(Prashant Kumar Mishra)
New Delhi;
July 16, 2024
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