Summary
The Supreme Court set aside a High Court order granting bail to an HIV-positive accused charged under Sections 21(c)/29 of the NDPS Act with possession of 1.040 kg of heroin, holding that bail in a commercial-quantity case cannot be granted solely on the ground of the accused's HIV status without recording satisfaction of the twin conditions in Section 37(1)(b)(ii); the trial court was directed to try the case on priority under Section 34(2) of the HIV and AIDS Act, 2017.
Issues
- Whether bail could be granted to an accused charged with a commercial-quantity NDPS offence solely because she is HIV positive, without considering the twin conditions in Section 37(1)(b)(ii) of the NDPS Act.
- What consequential direction follows from Section 34(2) of the HIV and AIDS (Prevention and Control) Act, 2017 for the trial of an HIV-positive accused.
Provisions considered
- Section 37(1)(b)(ii), Narcotic Drugs and Psychotropic Substances Act, 1985Quoted and applied: where the Public Prosecutor opposes bail in a commercial-quantity case, the court must be satisfied that there are reasonable grounds for believing the accused is not guilty and is not likely to offend on bail. The conditions are cumulative and recording this finding is a sine qua non for bail; the High Court had not adverted to it. (¶¶ 3, 5, 6, 7, 8, 10)
- Sections 21(c) and 29, Narcotic Drugs and Psychotropic Substances Act, 1985The offences charged in the FIR, involving 1.040 kg of heroin, well above commercial quantity; the accused was also facing an earlier FIR under the same provisions. (¶¶ 2, 10)
- Section 439, Code of Criminal Procedure, 1973The power to grant bail in NDPS cases is subject both to the limitations under Section 439 CrPC and to those under Section 37(1)(b)(ii) of the NDPS Act, as noted from earlier precedent. (¶ 7)
- Section 34(2), Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017Quoted: proceedings concerning an HIV-positive person must be taken up and disposed of on priority. Applied to direct the trial court to expedite the trial of the accused. (¶¶ 12, 13)
Held
- In bail applications involving commercial quantities under the NDPS Act, the court is bound to ensure satisfaction of both conditions in Section 37(1)(b)(ii); 'reasonable grounds' means more than prima facie grounds, and the two conditions are cumulative, so failure of either bars bail. (¶¶ 5, 6, 7)
- A liberal approach that ignores Section 37 is impermissible; recording the finding mandated by Section 37 is a sine qua non for granting bail to an NDPS accused and cannot be dispensed with. (¶ 8)
- Being HIV positive cannot by itself be a reason to enlarge an accused on bail in a commercial-quantity NDPS case. Non-consideration of Section 37 where the accused faced repeated charges and the quantity (1.040 kg heroin) was far above commercial quantity was a very serious lapse; reliance on Bhawani Singh v. State of Rajasthan, which did not involve an NDPS offence, was misplaced and would wrongly signal that the illness is a licence to offend. (¶¶ 9, 10)
- The twin conditions were not satisfied on the facts, so the accused was not entitled to bail and the impugned order was set aside. (¶¶ 10, 11)
- Because the accused is HIV positive, Section 34(2) of the HIV and AIDS Act, 2017 requires the trial court to take up and dispose of the case on priority. (¶¶ 12, 13)
Result
Special Leave Petition disposed of; High Court's bail order dated 29.09.2023 set aside; accused to surrender before the trial court within a week, failing which she is to be taken into custody; bail bond to be cancelled and sureties discharged on surrender; trial court to expedite the trial on priority under Section 34(2) of the HIV and AIDS Act, 2017.