2022 (1) TMI 1278 - HC - Indian Laws

Seeking grant of Bail - smuggling - Heroine - contraband item or not - seeking bail on the ground that the quantity of contraband is less than commercial and rigours of S. 37 of NDPS Act do not apply and also on medical ground of suffering from acute diabetes - HELD THAT - Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes. While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused - The petitioner is not entitled to bail, looking at the previous criminal history. However, the petitioner s counsel had sought bail also on medical grounds. The State did not dispute the critical medical condition of the petitioner. It has been argued that the petitioner is a severe diabetic patient with swelling on his left leg, which may result in its amputation, and he wants to get treatment at his efforts. Given the nature of allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within 10 days from today and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case. This bail is subject to the petitioner joining investigation and fully cooperating with the investigating agencies. Failure to do so shall ipso facto result in its withdrawal - Petition allowed.

Summary

Issues:
1. Bail sought on the grounds of quantity of contraband and medical reasons.
2. Criminal history of the petitioner.
3. Contention regarding the severity of the petitioner's medical condition.
4. Opposition to bail based on increasing drug menace and criminal antecedents.

Analysis:

Issue 1: Bail sought on the grounds of quantity of contraband and medical reasons
The petitioner, apprehended with 100 grams of heroin, seeks bail on the basis that the quantity is less than commercial, thus not invoking the rigours of Section 37 of the NDPS Act. Additionally, the petitioner cites acute diabetes as a medical ground for seeking bail.

Issue 2: Criminal history of the petitioner
The petitioner's criminal history includes multiple FIRs, including previous offences under the NDPS Act and other criminal statutes. The State opposes bail, highlighting the increasing drug menace and the likelihood of the petitioner repeating the offence due to criminal antecedents.

Issue 3: Contention regarding the severity of the petitioner's medical condition
The petitioner's counsel argues that the petitioner is a severe diabetic patient with a condition that may lead to amputation. The State does not dispute the critical medical condition of the petitioner, emphasizing the irreversible injustice pre-trial incarceration may cause.

Issue 4: Opposition to bail based on increasing drug menace and criminal antecedents
The State opposes bail, emphasizing the rising drug menace and the petitioner's criminal antecedents as factors indicating a likelihood of reoffending. However, the Court considers the quantity of contraband and the petitioner's medical condition, affording a final opportunity for medical treatment and course correction.

Conclusion:
The Court grants bail to the petitioner, subject to stringent conditions aimed at ensuring compliance, preventing influence on witnesses, and monitoring the petitioner's activities closely. The bail order includes provisions related to medical treatment, surrender of weapons, financial disclosures, and compliance with investigative procedures. The Court emphasizes the reciprocal responsibility of the accused to cooperate with investigating agencies and maintain desirable behavior.