The Bombay High Court recently addressed an application for bail filed by a woman who had been incarcerated since her arrest on April 30, 2024, for offenses under Sections 20(b)(ii), 29, and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Single Judge Bench of Justice Urmila Joshi-Phalke examined the circumstances and noted prima facie evidence indicating the applicant’s involvement in carrying a commercial quantity of contraband "ganja." However, considering her advanced stage of pregnancy, the Court observed that her temporary release would neither pose a significant security risk nor compromise the ongoing investigation, despite the stringent provisions of Section 37 of the NDPS Act. Accordingly, the Court granted her temporary bail for six months.

Background of the Case

The case originated from a raid conducted by the Gondia Railway Security Force aboard the Sambalpur-Pune Express, during which contraband "ganja" weighing 33.201 kg and valued at ₹6,64,020 was recovered. The applicant, her husband, and three other co-accused were allegedly transporting the substance in baggage. Following the seizure, the contraband was forwarded to the Magistrate for inventory, and the applicant, who was two months pregnant at the time, was arrested.

Subsequently, the applicant filed for bail on the grounds of her advanced pregnancy, emphasizing the risks of potential complications during childbirth. Her counsel argued that her continued incarceration in a facility ill-equipped to handle emergent medical needs was inhumane and requested her release on humanitarian grounds.

Findings and Decision of the High Court

The Court acknowledged that the applicant and her co-accused were found in possession of a commercial quantity of "ganja," and the contraband was seized from baggage, not during a personal search. It reiterated the mandatory requirement under Section 50 of the NDPS Act to inform an individual of their rights prior to a personal search but clarified that the provision does not apply to searches involving baggage or containers.

While the government hospital could provide medical care, the Court highlighted the adverse psychological and emotional impact of delivering a child in prison. The Court emphasized that dignity, even for prisoners, must be upheld and relied on the Supreme Court’s ruling in R.D. Upadhya v. State of A.P., (2007) 15 SCC 337, which issued guidelines for childbirth in prison. These included temporary release for delivery where feasible and ensuring no stigmatization of children born in prison.

The Court considered the humanitarian aspect of the case and the potential consequences for both mother and child. Despite the prima facie evidence against the applicant, the Court concluded that her temporary release would neither endanger public security nor hinder the investigation. Consequently, the application was granted, and the applicant was directed to execute a personal recognizance bond of ₹50,000 with sureties for an equivalent amount to secure her release for six months.

Case Title: Surbhi v. State of Maharashtra

Case No: Criminal Application (BA) No. 940 of 2024

Date: November-27-2024

Bench: Justice Urmila Joshi-Phalke