Statutory Limitations U/S 37 Of NDPS Act Limited To Merits, Not Humanitarian Grounds: J&K HC Permits Interim Bail To Elderly Man With Critical Medical Issues

“Provisions of Section 37 of the NDPS Act come into play only when bail of a person accused of an offence involving commercial quantity of contraband is being considered on merits, and the limitations contained therein would not come into play when bail is to be granted on humanitarian grounds like medical grounds.”

Citing Sajad Ahmad Bhat v, UT of J&K, 2022 SCC Online J&K 453, Justice Sanjay Dhar reiterated,

“.. the powers of the High Court under Section 439 Cr.P.C. are not curtailed and as such, the provisions contained in Section 37 of the NDPS Act do not act as a blanket ban on the power of the High Court under Section 439 Cr.P.C”

The petitioner, Mohammad Shafi Gojar had approached the High Court seeking bail on medical grounds in connection with FIR under Sections 8, 20, 29, and 27-A of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) and is currently facing trial before the Principal Sessions Judge, Kupwara.

Earlier, his application for bail on health grounds had been rejected by the trial court primarily due to the fact that 12 kilograms of charas and Rs. 5.64 lakhs in cash were allegedly recovered from his possession, placing the case within the ambit of commercial quantity and thus attracting the stringent limitations of Section 37 of the NDPS Act.

Appearing for the petitioner, Mr. Parvaiz Wani, Advocate, argued that the petitioner is aged, infirm, and suffering from multiple ailments including severe lower back pain with radiolopathy and bilateral femur pain. He submitted that despite continuous medication, there has been no improvement in the petitioner's condition, and he is now wholly dependent on fellow inmates for carrying out basic daily activities.

On the other hand, Mr. Nauman Idrees Malik, Government Advocate, opposed the plea, citing the serious nature of the offence and the substantial quantity of contraband recovered from the petitioner, insisting that the bail plea be rejected in view of the statutory bar under Section 37 of the NDPS Act.

Court's Observations:

Justice Dhar, after perusing the medical report submitted by the District Jail Kupwara authorities, recorded that the petitioner has been suffering from severe ailments with no signs of improvement, and that he is dependent on others even for daily chores due to his health and advanced age.

“it is clear that the petitioner is suffering from severe ailment and despite medication, he is not showing any symptoms of improvement… It is further recorded in the medical report that the petitioner is dependent on other jail inmates even for his daily chores due to the ailment and because of his old age”, the court noted.

The Court was critical of the trial court's approach, observing that it “got swayed by the heinousness of the offence alleged to have been committed by the petitioner and, without appreciating the seriousness of the ailment, observed that he is being treated well inside the jail.”

Relying on the precedent set in Sajad Ahmad Bhat, the Court emphasized that the embargo contained in Section 37 of the NDPS Act is attracted only when bail is being considered on merits. It ruled that these restrictions do not act as a blanket ban on the powers of the High Court under Section 439 Cr.P.C., especially in cases where bail is sought on medical or other humanitarian grounds.

Acknowledging the deteriorating medical condition of the petitioner and the difficulty faced by the jail authorities in managing his care, the Court granted him temporary bail for a period of two months, subject to the certain conditions.

Case Title: Mohammad Shafi Gojar Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 178

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