Ashique Ilahi vs The State( Nct Of Delhi)
2015 Latest Caselaw 5511 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI



                                              Date of decision: 03.08.2015

BAIL APPLN. 1407/2015


ASHIQUE ILAHI                                               ..... Petitioner
                         Through:    Ms Chitra Gera, Advocate for
                                     Mr Sanjay Srivastava, Advocate.


                         versus


THE STATE( NCT OF DELHI)                                  ..... Respondent

                         Through:    Mr Rajat Katyal, APP.



CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL



SIDDHARTH MRIDUL, J (ORAL)

1. The present is an application under Section 439 CrPC, 1973 praying

for grant of interim bail in FIR No.54/2014 under Sections 29/61 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS

Act") at Police Station- Special Cell, Rohini, pending in the court of the

Special Judge, NDPS, Patiala House Courts, New Delhi.

2. Counsel appearing on behalf of the applicant states that the latters wife

namely, Ruhida suffers from acute Spondylolisthesis for which she was

operated upon in the year 2007. At the time of the surgery, implants were

inserted into her spine in the L5 region. Counsel for the applicant further

states that Ruhida is currently suffering very acute pain and has been

recommended surgery for removal of implants from the spine by the

Regional Institute of Medical Sciences Hospital, Lamphel, Imphal. Counsel

for the applicant also invites my attention to the circumstance that there is no

other adult male member in the family and that the applicant has three minor

children. It is, therefore, urged that since Ruhida will not be able to take care

of the minor children and get operated in hospital at the same time and as

Ruhida is a Muslim lady and, therefore, not in a position to permit the

brothers of the applicant to attend to her, the applicant be released on interim

bail. In any event, it has been urged that the brothers of the applicant are not

inclined to look after Ruhida or her children at the time of the surgery.

3. The status report filed on behalf of the respondent does not belie the

facts and circumstances as afore-stated. However, it is urged by Mr Katyal,

learned APP appearing on behalf of the State that Manipur where the family

of the applicant resides is a disturbed area and, consequently, it would be

difficult to locate the applicant in the event he absconds while on interim

bail. It is also pointed out by Mr Katyal that the rest of the family of the

applicant resides in the vicinity.

4. A perusal of the record in the subject FIR reveals that no contraband

was recovered from the applicant. It is also a matter of record that the

applicant has clean antecedents and is not wanted in any other case. The gist

of the prosecution's case is that the applicant has been supplying contraband

to the co-accused in the subject FIR for the last many years. The applicant

was arrested on a disclosure statement made on behalf of his co-accused

Ganpat, who in turn was arrested on a disclosure statement made by one

Pankaj Upadhyay.

5. The trial court by way of its order dated 10.07.2015 rejected the

application for interim bail filed on behalf of the applicant inter alia for the

reason that in view of the mandate of Section 37 of the NDPS Act it was for

the applicant to satisfy the court that he is not guilty of the offence for which

he is facing trial and that he would not commit the offence if enlarged on

bail. The trial court also took into consideration the circumstance that two

accused persons were absconding and have not been arrested yet.

6. In Atik Ansari v. The State, NCT Delhi, 2006 IV AD(Cri.) (DHC)

303, my esteemed brother Badar Durrez Ahmed, J. was considering an

application for grant of interim bail on similar grounds. In that case it was

alleged that 2.5 kilograms of heroin were recovered from the applicant who

was seeking interim bail on the medical grounds of his wife. After

considering the decision of the Supreme Court in Dadu @ Tulsidas etc. v.

State of Maharashtra etc., (2000) 8 SCC 437 and the decision of a Division

Bench of this court in Hori Lal v. State, 1997 Crl.L.J. 821, the court held

that the applicant was entitled to the grant of interim bail under the special

circumstances. It is observed that similar circumstances arise in the present

case as well, inasmuch, as there is nobody to look after the applicant's wife

and their minor children in the absence of the applicant. The impending

surgery to be performed on Ruhida has also been verified. It is also an

admitted position that the applicant has no other involvements. In fact the

present applicant is on a better footing than the applicant in Atik Ansari

(supra) inasmuch as in that case the applicant was arrested with contraband

in his possession, whereas in the present case the applicant was arrested on a

disclosure statement made by a co-accused who in turn was arrested on a

disclosure statement made by an accused allegedly arrested with the

contraband.

7. It is also observed that the Division Bench of this court in Hori Lal

(supra) observed as under:-

"...Section 32A of the Act does not in any manner affect or curtail the power of this Court to grant interim bail or suspend sentence of a convict."

8. In the present case if the applicant's prayer is not granted it would

amount to the deprivation of his wife's right of being looked after and taken

care of by her husband at this critical juncture. Therefore, I see no

impediment in allowing the present application. The applicant is entitled to

the grant of interim bail under the special circumstances indicated above.

9. The applicant is directed to be released on interim bail for a period of

four weeks from the date of his release on his furnishing a personal bond in

the sum of Rs.50,000/- with one surety of the like amount to the satisfaction

of the concerned trial court. The applicant shall report to the SHO of the

concerned police station once a week on every Friday during the period of

interim bail. The applicant shall not leave the jurisdiction of the concerned

police station in Manipur without the prior permission of the concerned

SHO. The applicant shall surrender before the jail authorities at expiry of the

period of interim bail. The jail authorities are directed to furnish this court

with the surrender report qua the applicant.

10. The application is disposed of accordingly.

11. A copy of this order be given dasti under signature of Court Master to

counsel for the applicant.

SIDDHARTH MRIDUL, J

AUGUST 03, 2015 mk