J&K&L High Court Grants Bail To NDPS Accused To Attend Minor Daughter's Surgery, Says Health Issues Of Family Of Paramount Consideration

The Court was hearing a bail application filed by an accused under the provisions of the NDPS Act seeking interim relief to enable him to attend to his minor daughter, who was scheduled to undergo surgery, and to take care of her during the pre and post-operative period.

The application was grounded on the medical condition of the child and the necessity of the father's presence for her emotional and psychological well-being.

Justice Mohammad Yousuf Wani , while considering the plea, observed,

“health issue even of a relative or a family member of a detenue is of paramount consideration.” The Court emphasized that humanitarian considerations cannot be overlooked even in cases arising under stringent statutes like the NDPS Act.

The applicant, who is facing prosecution under the Narcotic Drugs and Psychotropic Substances Act, had approached the Court seeking bail on humanitarian grounds. It was submitted that his minor daughter was scheduled to undergo a surgical procedure and required the presence, care and support of her father during the critical period.

The plea highlighted that the child's medical condition necessitated not only physical care but also emotional and psychological support, which could best be provided by the applicant as her parent. Medical documents were placed on record to substantiate the urgency and genuineness of the claim. The prosecution opposed the application, contending that the accused was involved in offences under the NDPS Act, which prescribes stringent conditions for grant of bail.

Court's Observations:

The Court examined the scope of its jurisdiction in granting bail under the NDPS Act in light of humanitarian considerations. It noted that while the rigours of Section 37 of the NDPS Act impose strict limitations on the grant of bail, courts are not precluded from considering exceptional circumstances where denial of relief would result in grave hardship.

Citing Jasvinder Singh Vs State of J&K” B.A No: 156/2019 decided on 12.04.2021 the court recorded,

“.. That Section 37 of the NDPS Act, comes into play only when bail of a person/accused of an offence involving commercial quantity of a contraband is being considered on merits and the limitations contained therein would not apply when bail is to be granted on humanitarian grounds like medical ground. In such cases the powers of the High Court U/s 439 of the Cr.P.C are not curtailed”

The Court observed that the illness or medical condition of a close family member, particularly a minor child, constitutes a relevant and weighty circumstance that cannot be ignored. It emphasized that the presence of a parent during a child's medical treatment, especially in the case of surgery, is crucial for the child's emotional stability and recovery.

The Bench further noted that the material placed on record demonstrated that the applicant's daughter required surgical intervention and that the timing of the procedure necessitated the presence of her father. The Court underscored that such circumstances invoke humanitarian considerations, which form an integral part of the administration of justice.

While balancing the seriousness of the allegations under the NDPS Act with the immediate needs of the minor child, the Court held that a limited indulgence in the form of bail was justified to enable the applicant to discharge his parental responsibilities during the critical period.

The Court also took note of the need to ensure that the concession granted does not prejudice the ongoing investigation or trial and, accordingly, considered it appropriate to impose conditions regulating the applicant's release.

Recognizing the importance of parental presence for the emotional and psychological well-being of the child, the Court granted bail to the applicant for the limited purpose of attending to his daughter during her pre and post-surgery period. Accordingly, the bail application was allowed, subject to such terms and conditions.

Appearances:

Counsel for the Applicant: Mr. Mir Umar, Advocate

Case Title: Asif Amin Thoker Th. His Sister Vs UT Of J&K

Citation: 2026 LiveLaw (JKL) 111

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