Bail Cannot Be Granted Merely Because NDPS Accused Is HIV+: Supreme Court
The Supreme Court has observed that being an HIV-positive patient cannot be the sole reason to enlarge an accused on bail when the twin conditions under Section 37 of the NDPS Act are not satisfied.
The Court set aside the order that granted bail to an accused for the offence under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Bench explained that non-consideration of the provisions under Section 37 of the NDPS Act must be taken as a “very serious lapse” when the accused was found with more than the commercial quantity of the contraband substance (heroin).
A Bench of Justice C.T. Ravikumar and Justice Prashant Kumar Mishra observed, “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.”
Sr. Advocate Amit Kumar appeared for the petitioner.
The Meghalaya High Court had previously granted bail to the accused on the solitary ground of her being HIV positive. However, the State of Meghalaya contended that the bail granted failed to consider the mandatory twin conditions under Section 37(1)(b)(ii) of the NDPS Act, which stipulates that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.
The twin conditions under Section 37(1)(b)(ii) of the NDPS Act provide 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.
The Apex Court clarified that 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 satisfaction of the twin conditions under Section 37(1)(b)(ii) of the NDPS Act.
The Bench stated, “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.”
“Granting bail solely on the ground mentioned…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,” the Court remarked.
Consequently, the Court held, “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.” The Section provided that in any legal proceeding concerning or relating to an HIV-positive person, the court shall take up and dispose of the proceeding on a priority basis.
Accordingly, the Supreme Court disposed of the Special Leave Petition.
Cause Title: The State of Meghalaya v. Lalrintluanga Sailo & Anr. (Neutral Citation: 2024 INSC 537)
Appearance:
Petitioner: Sr. Advocate Amit Kumar; AOR Avijit Mani Tripathi; Advocates Rekha Bakshi, T.K. Nayak and Marbiang Khongwir
