Arrest for Dealing of Illicit Drug: Jammu & Kashmir HC grants bail considering the Medical condition of Accused [Read Order]

The petitioner, Parvaiz Ahmad Hanga, acting through his wife Tabasum Parviaz, has come forward, as an undertrial in custody, invoking jurisdiction of the Court under section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for seeking bail in a criminal case initiated by reference to FIR No. 23/2024 registered by the Police Station, Lar District Ganderbal, undergoing trial before the Court of learned Principal Sessions Judge, Ganderbal.

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A motorcycle upon being signalled to stop at a police naka set up at Yenhama, Lar driven by a motor cyclist tried to flee but got caught resulting in search and discovery of polythene bag containing three (03) bottles of Tusklis-T leading to further discovery of facts in interrogation that there are other persons involved in the illicit activities.

The petitioner was not the one who was allegedly caught with the alleged illicit drug in said naka incident but came to be implicated on the basis of the alleged statement of the culprit motor cyclist-Dawood Ahmad Rather that he received the alleged illicit drug from the petitioner.

The petitioner, upon being arrested by the Investigating Officer (IO) of Police Station Lar, is said to have confessed that he was dealing in the narcotic business illegally and that is how the petitioner came to be put up for trial as one of the co-accused.

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The petitioner is said to be carrying a medical history at the time of his arrest and, as such, during the course of his custody medical complications related to him came to be observed which resulted in the petitioner being taken by the Jail/Police Authorities to medical treatment to the referral Police Hospital, Srinagar. The petitioner came to apply to the trial court of Principal Sessions Judge, Ganderbal for bail on medical grounds.

The trial court of Principal Sessions Judge, Ganderbal reckoned the compulsion and constraint of keeping the petitioner in custody on account of nature of alleged offences slapped against him outweighing the consideration of releasing the petitioner on bail on medical grounds as reported and related to his health.

The petitioner submitted that his medical condition is critical. With the state of failing health of an ailing/ sick accused person under custody, his/ her immediate family, be it parents, spouse, children or near relatives, as the case may be, are equally and directly concerned without a miss besides the ailing/ sick accused person himself or herself being under unceasing concern notwithstanding the medical attention being provided by the Jail authorities.

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Drawing from practical understanding and experience, even the jail authorities may, in any given case, in very realistic terms nurse a concern for an ailing/sick under trial person in custody and intend his or her family members/relatives to be proactive and involved so as to get the ailing/sick accused person not only medically but personally attended for his or her quick recovery and betterment.

In the case of ‘Sameer Mahandru v. Directorate of Enforcement’, the High Court of Delhi in dealing with Bail Application No. 1343/2023 read with Crl.M.A. 10859/ 2023 came to deal with the case of an under- trial/ arrestee having medical issues related to his health by a long deliberation on the matter. In this case, the High Court of Delhi came to pose a question as to whether the petitioner is entitled to interim bail as being sick or infirm in terms of proviso to section 45 (1) of the prevention of Money Laundering Act, 2002.

A single bench of Justice Rahul Bharti granted bail for a duration of four months subject to the furnishing of bond, personal as well as surety, to an amount of Rs. 5 lac each to the satisfaction of the court of Principal Sessions Judge, Ganderbal who shall also settle terms and conditions of the bail hereby granted by the Court and then enlarge the petitioner on bail.

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