NDPS Accused Cannot Manufacture Medical Ground For Bail By Delaying Treatment, Refusing Consent: J&K&L High Court

The Court observed that the petitioner had been delaying the conducting of prescribed tests on one pretext or another and had repeatedly refused consent for treatment, and that the biopsy report disclosed no signs of malignancy.

The Court was hearing a bail application seeking short-term bail on medical grounds in connection with an FIR registered for the commission of offences punishable under Sections 8 and 22 of the NDPS Act.

A Bench of Justice M.A. Chowdhary, while dismissing the application, observed,

"From the medical record produced by the Respondents, it is clear that the Petitioner had been delaying the conducting of the tests, on one pretext or the other, and had, on many occasions, sought deferring of the tests, however, lastly, the tests were conducted, including Biopsy and, as per the Biopsy report, there are no signs of any malignancy in his pancreas, so as to come to the conclusion that he is suffering from the deadly disease which cannot be treated or cured during custody."

The Court further observed,

"When the statutory conditions contained therein are pitted against the plea of prolonged incarceration, likely delay in the trial, or the medical condition of the accused, as in the present case, the former must take precedence."

The petitioner claimed to be suffering from multiple and serious ailments, including calcific pancreatic lesion (tumour), for which he had been advised to undergo FNAC procedure as well as biopsy test. It was urged that the rigours of Section 37 of the NDPS Act were not attracted in view of his medical condition. The petitioner had earlier moved a similar application before the Additional Sessions Judge, Bandipora, which was allowed purely on medical grounds and extended from time to time.

However, the application was finally dismissed by the Trial Court, holding that having regard to the gravity of the offence, the statutory embargo under Section 37, the antecedents and conduct of the accused, the fact that medical bail was earlier availed and thereafter absconded, and the absence of any conclusive medical opinion necessitating release, no case for grant of medical bail was made out.

The respondents opposed the application, contending that the petitioner had remained on bail for almost eleven months but did not undergo the prescribed tests, though he had been taken to SKIMS for treatment on various occasions.

Justice Chowdhary examined the Health Status Report produced by the Government Advocate and noted that the petitioner had been taken to SKIMS for advanced diagnostics on 30.04.2026, and CE-MRI as well as MRCP were successfully conducted. He was escorted to SKIMS for institutional admission ahead of a scheduled Celiac Plexus Block and ERCP procedure set for 07.07.2026.

The court also noted that during his pre-procedure clinical follow-up, the petitioner explicitly refused to undergo the ERCP, citing structural discomfort and strong personal reluctance, and demanded immediate postponement on multiple occasions — 06.07.2026, 23.07.2026, 10.08.2026 and 24.08.2026.

The Court noted that the petitioner was again escorted to SKIMS on 31.08.2026, where he was admitted under MRD No. 1716801 and discharged on 03.09.2026, but his ERCP procedure was delayed as he did not sign the consent, showing reluctance. The Health Status Report concluded that presently the petitioner is healthy and medically better, and his treatment can efficiently be continued under judicial custody.

The Court relied upon Narcotics Control Bureau v. Kashif, 2025 (2) Supreme 268, wherein the Supreme Court observed that where the offence is punishable with a minimum sentence of ten years, the accused shall generally not be released on bail, and that "negation of bail is the rule and its grant is an exception".

The Court observed that the Supreme Court held that "the provisions of Section 37 are mandatory in nature and that the recording of the twin findings contemplated therein is a sine qua non for grant of bail". A similar view was expressed in State of Meghalaya v. Lalritluanga Sailo & Anr., 2024 (6) Supreme 568.

The Court remarked,

"The bail on medical grounds, however, can be granted in view of the health condition of an accused, regardless of the said statutory bar." However, the Court found that the petitioner had been granted interim bail on medical grounds which was extended for almost eleven months, and he had sufficient time to get the tests conducted including ERCP and Biopsy, but he did not do so. The Court observed: "The Petitioner has been detained in Central Jail, Srinagar, which is nearer to the SKIMS Hospital and, in case of any exigency, he can be taken to the SKIMS Hospital and, if advised by the doctors attending on him, he can be admitted for treatment at the said Hospital."

The Court accordingly held,

"In the light of the aforesaid Health Status Report, it is found that the Petitioner is being repeatedly provided treatment at a specialized Hospital- SKIMS, Soura, which is not far-off from the premises of Central Jail, Srinagar, where the Petitioner is presently lodged, therefore, this Court is of the considered opinion that the ground of medical condition for seeking bail at this stage does not appear to be made out."

The petition was thus dismissed.

Case Title: Manzoor Ahmad Hajam v. Union Territory of Jammu & Kashmir

Citation: 2026 LiveLaw (JKL) 326

Appearances

Petitioner: Mr. Irfan Khan, Advocate

Respondents: Government Advocate

Click here to read/download Judgment