THE STATE OF MEGHALAYAversusLALRINTLUANGA SAILO & ANR.

         [2024] 7 S.C.R. 1314 : 2024 INSC 537

                 The State of Meghalaya
                            v.
                Lalrintluanga Sailo & Anr.
    (Special Leave to Appeal (Crl.) No. 16021 of 2023)
                          16 July 2024
 [C.T. Ravikumar and Prashant Kumar Mishra, JJ.]

                    Issue for Consideration
Whether the High Court erred in granting bail to the accused solely
on the ground that she was suffering from HIV, without adverting
to the mandate under Section 37(1)(b)(ii), NDPS Act, and without
taking in view the quantity of the contraband substance.

                           Headnotes†
Bail – Narcotic Drugs and Psychotropic Substances Act,
1985 – s.37 – Recording a finding mandated u/s.37 is sine qua
non for granting bail to accused under the Act – High Court
erred in granting bail to accused solely on the ground that
she was suffering from HIV, without adverting to the mandate
u/s.37(1)(b)(ii), when accused was involved in offences under
the Act on more than one occasion and quantity of contraband
was much above the commercial quantity.
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.37 – Grant of bail to accused involved in offence under the
Act – Twin conditions u/s.37(1)(b)(ii):
Held: While considering the application for bail made by an accused
involved in an offence under NDPS Act, a liberal approach ignoring
the mandate under Section 37 of the NDPS Act is impermissible –
Recording a finding mandated under Section 37 of the NDPS Act
is sine qua non for granting bail to an accused under the NDPS
Act – When the accused is involved in offences u/ss. 21(c)/29
of NDPS Act, on more than one occasion and when the quantity
of the contraband substance viz., heroin is 1.040 Kgs, much
above the commercial quantity, then the non-consideration of
the provisions under Section 37, NDPS Act, has to be taken as
a very serious lapse – Twin conditions under s.37 of NDPS Act,
were not satisfied and on the sole reason that the accused was a
HIV patient, she is not entitled to be released on bail – However,
accused being HIV positive, is entitled to benefit u/s.34(2) of the
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          The State of Meghalaya v. Lalrintluanga Sailo & Anr.


     Human Immunodeficiency Virus and Acquired Immune Deficiency
     Syndrome (Prevention and Control) Act, 2017 – In view thereof
     the trial Court to take appropriate steps to expedite the trial on
     priority basis. [Paras 8,10,12,13]

                             Case Law Cited
     Collector of Customs, New Delhi v. Ahmadalieva Nodira [2004] 2
     SCR 1092 : (2004) 3 SCC 549; State of Kerala and Ors. v. Rajesh
     and Ors. [2020] 3 SCR 348 : (2020) 12 SCC 122 – relied on.
     Bhawani Singh v. State of Rajasthan, 2022 SCC OnLine SC
     1991 – distinguished.

                               List of Acts
     Narcotic Drugs and Psychotropic Substances Act, 1985; Human
     Immunodeficiency Virus and Acquired Immune Deficiency
     Syndrome (Prevention and Control) Act, 2017; Code of Criminal
     Procedure, 1973.

                            List of Keywords
     Bail; NDPS Act; Twin conditions; Contraband substance; Heroin;
     Commercial quantity; Accused suffering from HIV; Bail granted on
     solitary ground of HIV positive; Non-consideration of provisions
     under Section 37 NDPS Act.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Special Leave To Appeal
     (Crl.) No. 16021 of 2023
     From the Judgment and Order dated 29.09.2023 of the High Court
     of Meghalaya at Shillong in BA No. 38 of 2023
                        Appearances for Parties
     Amit Kumar, Sr. Adv., Avijit Mani Tripathi, Ms. Rekha Bakshi,
     T.K. Nayak, Ms. Marbiang Khongwir, Advs. for the Petitioner.
                Judgment / Order of the Supreme Court

                                  Order
1.   The State of Meghalaya filed the captioned Special Leave Petition
     challenging the order dated 29.09.2023 passed in Bail Application
     No. 38/2023 by the High Court of Meghalaya at Shillong.
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2.   FIR No.06(02)23 was registered against the respondent-accused
     (Smt. X) on 08.02.2023 for offences under Sections 21(c)/29 of
     the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
     short ‘NDPS Act’). Anonymization as relates the identity of the
     respondent-accused as ‘Smt.X’ has been done, as she is Human
     Immunodeficiency Virus (HIV) positive. Virtually, from 16.03.2023
     onwards, Smt. X was in judicial custody in connection with the crime
     bearing FIR No.22(03)2023 registered at Khliehriat Police Station
     under Sections 21(c)/29 of the NDPS Act and her formal arrest in the
     subject Crime was recorded on 11.04.2023 during such custody. While
     so, as per the order dated 27.06.2023, the High Court of Meghalaya
     at Shillong granted bail in connection with FIR No.22(03)2023 on
     the solitary ground of her being HIV positive.
3.   It is the subsequent grant of bail on 29.09.2023 in connection with FIR
     No.06(02)23, sans satisfactory consideration of the twin conditions
     under Section 37(1)(b)(ii) of the NDPS Act that constrained the State
     to approach this Court with the captioned Special Leave Petition. As
     a matter of fact, the bail application that culminated in the said order
     dated 29.09.2023 was moved by the son of the accused-Smt.X, on
     her behalf.
4.   Heard learned Advocate General Shri Amit Kumar for the State
     of Meghalaya. Earlier, notice was issued to the respondents and
     despite being served respondent No.1, the son of Smt. X, through
     whom B.A. No.38/2023 which culminated in the impugned order
     was moved, did not enter appearance. Later, bailable warrant was
     issued against the Smt.X. The report annexed to the office report
     would reveal that bailable warrant was executed on 02.07.2024 and
     Smt.X was released on bail with the instructions to appear before this
     Court on 16.07.2024 at 10.30 a.m. However, the respondent-accused
     failed to appear before the Court when this matter was taken up
     for consideration. In this context, it is to be noted that in the order
     impugned dated 29.09.2023, whereby Smt. X was granted bail, itself
     one of the conditions is that she should co-operate with the process
     of the court concerned. Be that as it may, we will now proceed to
     consider the challenge against the order dated 29.09.2023.
5.   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
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             The State of Meghalaya v. Lalrintluanga Sailo & Anr.


      bound to ensure the satisfaction of conditions under Section 37(1)
      (b)(ii) of the NDPS Act. The said provision reads thus: -
             “37(1)(b)(ii)- where the Public Prosecutor opposes the
             application, the court is satisfied that there are reasonable
             grounds for believing that he is not guilty of such offence
             and that he is not likely to commit any offence while on bail.”
6.    While considering the cases under NDPS Act, one cannot be oblivious
      of the objects and reasons for bringing the said enactment after
      repealing the then existing laws relating to the Narcotic drugs. The
      object and reasons given in the acts itself reads thus: -
             “An act to consolidate and amend the law relating to
             narcotic drugs, to make stringent provisions for the control
             and regulation of operations relating to narcotic drugs and
             psychotropic substances, to provide for the forfeiture of
             property derived from, or used in, illicit traffic in narcotic
             drugs and psychotropic substances, to implement the
             provisions of the International Convention on Narcotic
             Drugs and Psychotropic Substances and for matters
             connected therewith.”
      In the decision in Collector of Customs, New Delhi v. Ahmadalieva
      Nodira,1 the three judge bench of this Court considered the provisions
      under Section 37(1)(b) as also 37(1)(b)(ii) of the NDPS Act, with regard
      to the expression “reasonable grounds” used therein. This Court held
      that it means something more than the prima facie grounds and that
      it contemplates substantial and probable causes for believing that
      the accused is not guilty of the alleged offence. Furthermore, it was
      held that the reasonable belief contemplated in the provision would
      require existence of such facts and circumstances as are sufficient
      in themselves to justify satisfaction that the accused is not guilty of
      the alleged offence.
      As relates the twin conditions under Section 37(1)(b)(ii) of the NDPS
      Act, viz., 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


1    [2004] 2 SCR 1092 : (2004) 3 SCC 549
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      they are cumulative and not alternative. Satisfaction of existence of
      those twin conditions had to be based on the ‘reasonable grounds’,
      as referred above.
7.    In the decision in State of Kerala and Ors. v. Rajesh and Ors.,2
      after reiterating the broad parameters laid down by this Court to
      be followed while considering an application for bail moved by an
      accused involved in offences under the NDPS Act, in paragraph 18
      thereof this Court held that the scheme of Section 37 of the NDPS Act
      would reveal that the exercise of power to grant bail in such cases
      is not only subject to the limitations contained under Section 439 of
      the Code of Criminal Procedure, but also subject to the limitation
      placed by Section 37(1)(b)(ii), NDPS Act. Further it was held that in
      case one of the two conditions thereunder is not satisfied the ban
      for granting bail would operate.
8.    Thus, the provisions under Section 37(1)(b)(ii) of the NDPS Act and
      the decisions referred supra revealing the consistent view of this Court
      that while considering the application for bail made by an accused
      involved in an offence under NDPS Act a liberal approach ignoring
      the mandate under Section 37 of the NDPS Act is impermissible.
      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.
9.    The materials on record would reveal that earlier Smt. X was enlarged
      on bail by the High Court as per order dated 27.06.2023 in connection
      with FIR No.22(03)2023, involving the quantity of 55.68 grams of
      Heroin, despite the opposition of the public prosecutor, taking note
      of her being HIV positive. In the said order it is stated thus: -
             “30. Accordingly, on this ground alone, the application for
             grant of bail is hereby allowed.”
10. The subject FIR viz., FIR No. 06(02)23 under Section(s) 21(c)/29
    of the NDPS Act, would reveal that the quantity of the contraband
    involved is 1.040 kgs of heroin. The impugned order granting bail
    to accused-Smt. X, dated 29.09.2023 would reveal, this time also,
    the bail was granted on the ground that she is suffering from HIV
    and conspicuously, without adverting to the mandate under Section


2    [2020] 3 SCR 348 : (2020) 12 SCC 122
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           The State of Meghalaya v. Lalrintluanga Sailo & Anr.


     37(1)(b)(ii), NDPS Act, even after taking note of the fact that the
     rigour of Section 37, NDPS Act, calls for consideration in view of the
     involvement of commercial quantity of the contraband substance.
     When the accused is involved in offences under Section 21(c)/29
     of NDPS Act, more than one occasion and when the quantity of the
     contraband substance viz., heroin is 1.040 Kgs, much above the
     commercial quantity, then the non-consideration of the provisions
     under Section 37, NDPS Act, has to be taken as a very serious
     lapse. In cases of like nature, granting bail solely on the ground
     mentioned, relying on the decision in Bhawani Singh v. State of
     Rajasthan3 would not only go against the spirit of the said decision
     but also 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. In the contextual situation it is to be noted
     that in Bhawani Singh’s case the offence(s) involved was not
     one under the NDPS Act. 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.
11. Consequently, the impugned order is set aside. The accused-Smt.X
    shall surrender before the trial Court within a week from today and
    in case of her failure to do so, she shall be taken into custody in
    accordance with law. Upon such surrender/production of the accused
    before the trial Court, it shall cancel the bail bond of the accused
    and discharge the sureties.
12. 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, which reads thus: -
            “34. ...
            ...


3   2022 SCC OnLine SC 1991
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              (2). In any legal proceeding concerning or relating to an
              HIV-positive person, the court shall take up and dispose
              of the proceeding on priority basis.”
13. In view of the said provision the trial Court shall take appropriate
    steps to expedite the trial on priority basis and to dispose of the
    case as early as possible.
14. The Special Leave Petition is disposed of, as above.
15. Pending application(s), if any, stands disposed of.

     Result of the case: Special Leave Petition disposed of.



     †
         Headnotes prepared by: Bibhuti Bhushan Bose
                                 (With assistance from: Geethika. K, LCRA)