Jammu & Kashmir High Court – Srinagar Bench
Sajad Ahmad Sheikh vs Union Territory Of J&K And Ors on 6 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
Bail App No. 138/2024
Reserved On: 27thof March, 2025.
Pronounced On: 6th of June, 2025.
Sajad Ahmad Sheikh
... Petitioner(s)
Through: -
Mr S. S. Rizvi, Advocate.
V/s
Union Territory of J&K and Ors.
... Respondent(s)
Through: –
None.
CORAM:
Hon’ble Mr Justice Rahul Bharti, Judge
(JUDGMENT)
01. Heard.
02. Perused the Bail Petition, the Objections along with the
respective documents accompanying therewith.
03. The jurisdiction of this Court under section 483 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
[corresponding to section 439 of the Code of Criminal Procedure
(Cr. P. C.), 1973 read with Section 37 of the Narcotic Drugs and
Psychotropic Substances (NDPS) Act, 1985 has been solicited by
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the petitioner, acting through his brother, thereby seeking bail on
the ground of state of his ailing health while serving custody as an
under-trial in a criminal case pending before the Court of learned
Special Judge (NDPS Cases), Srinagar.
04. Police Station Chanapora, Srinagar came to register an
FIR No. 31/2024 on account of an alleged incident of 26th of
August, 2024 when during the course of Naka Checking set up at
Hamambal, Budshah Nagar, three persons alleged to be coming
from Mehjoor Nagar, Natipora towards Budshah Nagar came to
be intercepted and found to be carrying a bag in their possession.
Upon their apprehension, the said persons came to be identified as
(1) Aniket Kumar S/o Ashok Kumar R/o 233, Tilpata, Karanwas,
Dardi, Gautum Buddha Nagar, UP, (2) Shavan Kumar @ Aditya
S/o Pappal R/o 238 Tilpata, Karanwas, Dardi, Gautum Buddha
Nagar, UP and (3) the Petitioner herein.
05. During their alleged search, 36 numbers of alleged
contraband in the form of Codril-T (Codeine Phosphate) bottles
were recovered from the personal possession of Aniket Kumar,
one of the three accused persons so apprehended.
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06. This incident resulted in their booking under section 8/22
read with section 29 of the Narcotic Drugs and Psychotropic
Substances (NDPS) Act, 1985.
07. During the course of investigation of the case, the
petitioner came to prefer a bail petition before the Court of Special
Judge (NDPS cases), Srinagar on 28th of September, 2024 on file
No. 347/2024 thereby seeking grant of bail in his favour on the
basis of his purported medical condition at that time reported to be
afflicting and affecting him.
08. During the pendency of the said bail application, final
Police Report (Challan) u/s 193 BNSS, 2023 is said to have been
presented on 28th of October, 2024 against all the three accused
persons.
09. In connection with the adjudication of the bail petition
so filed before the Special Judge (NDPS Cases), Srinagar, a
medical report related to the health condition of the petitioner was
sought from the Superintendent, Central Jail, Srinagar.
10. Thereafter, the Senior Medical Officer, Central Jail,
Srinagar came forward with requisite medical report dated 2nd of
November, 2024 which confirmed the fact that the petitioner
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suffers from T2DM (type 2 Diabetes Mellitus) on Insulin,
Hypertension and Headache. However, the complaint of chest
pain reported by the petitioner was examined to be normal with
advice for cardiology follow up in OPD.
11. On the basis of said medical report, the Court of
Special Judge (NDPS Cases), Srinagar found no good reason for
granting bail on medical ground in favour of the petitioner related
to his then stated medical condition which was being attended to
by the Jail Authorities as per medical protocol without any
deficiency in service in terms of medical treatment. Accordingly,
said bail application was rejected vide an order dated 13th of
November, 2024, whereupon the petitioner came forward with the
institution of the present Bail Petition before this Court on 19th of
November, 2024.
12. This Court invited a fresh medical status report related
to the petitioner which came to be submitted by the Station House
Officer (SHO), Police Station, Chanapora, Srinagar on 13th of
January, 2025 accompanied with Senior Medical Officer, Central
Jail, Srinagar’s communication No. SMOCJ/24/1140 dated 17th of
December, 2024 addressed to the Senior Superintendent, Central
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Jail, Srinagar related to the medical condition of the petitioner.
Part of the said report needs to be reproduced herein:
“On 25-11-2024, the above said inmate was
referred to Govt. super Specialty Hospital Sheerbagh,
Srinagar for cardiology follow up as advised. The
consultant cardiologist after examination advised
medication and CT Coronary Angiography dated
29/11/2024, the medication advised is provided to him
regularly in view of raised creatine consultant
cardiologist advised nephrology consultation. He was
referred for nephrology consultation of Govt. super
Specialty Hospital at Sheerbagh, Srinagar, the consultant
nephrologist after examination advised medication and
advised to wait for contrast study, then they redated him
on 04-12-2024 but due to non-availability of escort the
said procedure was not conducted, fresh date for the said
procedure may be fixed as soon as possible.”
13. When this Court examines the health report of the
petitioner, this Court cannot escape noticing the fact that the
petitioner is suffering a complication related to his kidney
functioning which of course is compounded by him being afflicted
with diabetic status and on that count the petitioner has a cause for
concern related to his medical well being and health.
14. The rigor in section 37 of the Narcotic Drugs and
Psychotropic Substances (NDPS) Act, 1985 in the matter of grant
of bail takes a back-seat when there is ground of health reason
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related to an accused under custody booked under the Narcotic
Drugs and Psychotropic Substances (NDPS) Act, 1985 seeking
bail. In that scenario, it is section 439 of the Code of Criminal
Procedure (Cr.P.C.) [corresponding to section 483 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023] which
provides for exercise of discretion by a given court either to grant
or refuse bail in favour of an ailing/sick accused person in
custody.
15. In the context of the present case when the petitioner is
now in custody for the last more than 10 months in running and
simultaneously bearing in mind that intervening health condition
of the petitioner has resulted in his examination by Nephrologist
Consultant confirming the fact of raised creatinine level of the
petitioner, this Court is inclined to grant indulgence in granting a
duration bail in favour of the petitioner. Hence, a case is made out
for enabling the petitioner to get himself medically examined and
attended at his as well as his family’s expenses and efforts in any
of the best medical establishment of the Union Territory of Jammu
& Kashmir corresponding to his affordability to check any further
aggravation of his kidney related malfunctioning which in the
state of being in confinement and custody is likely to suffer a
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neglect in one form or the other notwithstanding an assurance
from the Jail Authorities that the petitioner would be duly attended
to receive due medical attention.
16. Therefore, in the light of the aforesaid facts and
circumstances of the case, this Court grants a duration bail of four
months in favour of the petitioner from the date of his release
from the Central Jail, Srinagar subject to the terms and conditions
as may be deemed appropriate to be imposed by the Court of
Special Judge (NDPS Cases), Srinagar. This Court is granting
duration bail in favour of the petitioner for a period of four months
by reserving discretion in favour of the trial court to consider
extension of the bail in favour of the petitioner only upon fresh
evaluation of the medical condition of the petitioner, as may come
to be reported by the petitioner on the basis of his medical record
of the period of four months for which he is being enlarged on bail
on the basis of indulgence by this Court. The trial court not to be
influenced by any observations made by this Court in this order in
the matter of considering extension or refusal of extension of bail
in favour of the petitioner.
17. Disposed of.
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18. Copy of this order to be forwarded by Registrar
Judicial, Srinagar to the Court of Special Judge (NDPS Cases),
Srinagar for setting terms and conditions of bail for period of four
months.
(Rahul Bharti)
Judge
SRINAGAR
6th of June, 2025
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes/ No.