The Orissa High Court has approved bail for a man charged under the Narcotic Drugs and Psychotropic Substances Act, 1985. The decision was made in consideration of his condition of living with HIV-AIDS, acknowledging that maintaining his dignity in a suitable environment would be challenging within the confines of a prison.

“As the petitioner is HIV+, even though the jail authorities have claimed that he is being extended proper treatment, the petitioner is also entitled to live with dignity in an environment in which is congenial to him, which is not possible inside the jail.”

The matter was heard before the Single Bench of Justice Savitri Ratho.

The petitioner is facing charges under Section 21(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. Initially, the Court disposed of his first bail application, permitting him to file a fresh bail application upon the conclusion of the investigation.

After the investigation concluded, the petitioner, along with another co-accused, submitted a second bail application to the Court. While the Court approved bail for the co-accused, it declined the petitioner's bail request citing his previous criminal record under Section 20(b)(ii)(B) of the NDPS Act.

In the course of the second bail application hearing, it came to the attention of the Court that the petitioner is afflicted with HIV-AIDS, necessitating consistent medical supervision and treatment. Despite denying bail, the High Court permitted the petitioner the opportunity to seek bail from the lower court by providing his medical records as annexures.

Nevertheless, the lower court rejected the petitioner's bail application, noting that the responsibility for the petitioner's medical treatment for the disease should lie with the jail authorities.

The petitioner's representatives argued that while the jail authorities claim to provide treatment, the nature of his condition renders him unable to live a normal life in jail. They highlighted that other inmates avoid contact with him due to his ailment, leading to a secluded and distressing existence for the petitioner within the prison environment.

Additionally, it was argued that according to Section 437 of the Criminal Procedure Code (CrPC), individuals who are sick or infirm are entitled to be granted bail. Moreover, considering the quantity of brown sugar allegedly seized from his exclusive and conscious possession, Section 37 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act should not hinder the consideration of his bail request.

The Court based its decision on the precedent established in Bhawani Singh v. State of Rajasthan, where the Supreme Court had granted bail to the accused on the grounds of his HIV-AIDS condition. Justice Ratho emphasized the purpose behind the enactment of the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 by Parliament, which aims to safeguard the human rights of individuals affected by the virus and syndrome.

The Court referred to Section 34 of the Act, which states, among other things, that in any legal proceeding involving or pertaining to an HIV-positive individual, the Court must expedite and resolve the proceeding on a priority basis.

“After considering the submission of the counsel, the decision of the Supreme Court and the provisions of the Act, the quantity of brown sugar seized from the petitioner who is admittedly HIV+ and under treatment, even though he has one criminal antecedent under the NDPS Act, I am inclined to allow his prayer for bail.”

Mr. Rakesh Kumar Das, representing Mr. Sujit Ku. Das, acted as counsel for the petitioner, while Mr. M.R. Mishra, serving as Additional Standing Counsel, represented the state.

Case Title: B v. State of Odisha

Case No: BLAPL No. 434 of 2024