HIV Status Alone Is No Ground for NDPS Bail: Supreme Court Sets Aside Bail Ignoring Section 37

The accused, whom the Court anonymised as Smt. X because she is HIV positive, faces two cases under Sections 21(c) and 29 of the NDPS Act (para 2). In the first, involving 55.68 grams of heroin, the Meghalaya High Court granted her bail on 27.06.2023 solely because she was HIV positive (paras 2, 9). In the present case, involving 1.040 kg of heroin, it again granted bail on 29.09.2023 on the same ground, on an application moved by her son (paras 3, 10). The State challenged that order; she did not appear before the Supreme Court despite a bailable warrant (para 4).

In cases involving a commercial quantity, the court must be satisfied of both conditions in Section 37(1)(b)(ii): reasonable grounds to believe that the accused is not guilty and is not likely to offend on bail (para 5). Relying on Ahmadalieva Nodira, 'reasonable grounds' means more than prima facie grounds and the two conditions are cumulative (para 6); State of Kerala v. Rajesh holds that bail is barred if either is unmet (para 7). A liberal approach ignoring Section 37 is impermissible, and a finding under it is a sine qua non for bail (para 8). The High Court noted that Section 37 applied but never addressed it, a very serious lapse where the accused faced a second case and the heroin was far above commercial quantity (para 10). Bhawani Singh, on which the bail rested, did not involve the NDPS Act, and bail only on HIV status would send the wrong message that the disease is a licence to offend; the twin conditions were not satisfied (para 10).