While displaying compassion, humanity, magnanimity and so also taking into account a very holistic view of the deleterious impact of a pregnant woman delivering child in jail, the Single Judge Bench of Nagpur Bench of Bombay High Court comprising of Hon’ble Ms Justice Urmila Joshi-Phalke in a most progressive, pragmatic, persuasive and pertinent judgment titled Surbhi vs State of Maharashtra in Criminal Application (BA) No. 940 of 2024 that closed hearing both sides on 19.11.2024 and then finally pronounced judgment on 27/11/2024 granted temporary bail to a pregnant woman who was arrested in a drug possession case after observing most sagaciously that delivering a child in jail would adversely impact both mother and child. It must be certainly borne in mind that the Bench also underscored that childbirth in prison could have serious consequences, reiterating that such cases warrant humane considerations. It is entirely in the fitness of things that the Bench minced just no words to say in no uncertain terms most explicitly observing that, “Delivering child during pregnancy in jail atmosphere would certainly impact not only on the applicant but also on child, which cannot be lost sight of. Every person is entitled to dignity which situation demands including prisoner. Delivering child in prison may have consequence on mother as well as child and, therefore, humane considerations are required.” We also need to bear in mind that the Bench made these key observations while granting six months of bail to a woman who was arrested in a case that was lodged under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
At the very outset, this learned, laudable, landmark, logical and latest judgment authored by the Single Judge Bench of Nagpur Bench of Bombay High Court comprising of Hon’ble Ms Justice Urmila Joshi-Phalke sets the ball in motion by first and foremost putting forth in para 1 that, “The applicant, who is since date of arrest i.e. 30.4.2024 is in jail, seeks regular bail in Crime No.92/2024 registered with the non-applicant/police station for offences under Sections 20(b)(ii), 29, and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act).”
As we see, the Bench then discloses in para 2 stating that, “The crime was registered as the Gondia Railway Security Force conducted a raid in Train No.08327 (Sambalpur-Pune Express) and during the raid, in Coach No.B-3, beneath Seat Nos.17, 18, 19, 20, and 21, contraband “Ganja” was recovered from five persons including the applicant.”
To put things in perspective, the Bench envisages in para 3 disclosing that, “The crime was registered as the Gondia Railway Security Force conducted a raid in Train No.08327 (Sambalpur-Pune Express) and during the raid, in Coach No.B-3, beneath Seat Nos.17, 18, 19, 20, and 21, contraband “Ganja” was recovered from five persons including the applicant.”
As it turned out, the Bench then enunciates in para 4 revealing the purpose of filing application stating that, “As a follow up action, a search was conducted. Samples were obtained in presence of panchas. Seized contraband was forwarded to the Magistrate for inventory. Samples were forwarded to chemical analysis and the applicant was arrested. At the time of the arrest, she was two months pregnant. Now, she is carrying an advanced pregnancy and, therefore, the present application is filed.”
On the contrary, the Bench then points out in para 5 that, “The application is strongly opposed by the State on ground that during the course of investigation, commercial quantity of “Ganja” was found in possession of the applicant and other co-accused persons including her husband. Search and seizure were done. Inventory Report was also prepared and samples were forwarded to the Chemical Analyzer. The Investigating Officer recorded relevant statements of witnesses and submitted chargesheet against the applicant along with co-accused persons. Huge quantity of contraband was seized and the applicant was found transporting the same. In view of rigour under section 37 of the NDPS Act, the application deserves to be rejected.”
Do note, the Bench notes in para 9 of this robust judgment that, “Having heard learned counsel for parties and perused material on record, it shows that there is no dispute that the applicant and her husband were found in possession of contraband article “Ganja” along with other co-accused persons. A commercial quantity of contraband was found in their possession. During investigation, the Investigating Officer collected samples in presence of panchas. The contraband articles were also forwarded to inventory. As far as compliance under Section 50 of the NDPS Act is concerned, the same was carried out. The Inventory Report shows quantity seized was commercial.”
Needless to say, the Bench propounds in para 10 specifying that, “A settled position of law is that a person to be searched under the NDPS Act is required to be informed about his/ her right under Section 50 of the NDPS Act before he/she is searched and the same is mandatory requirement. Section 50 of the NDPS Act would be applicable in case of personal search of the accused and not when it is in respect of baggages; articles, and vehicles and or container.”
Truth be told, the Bench reveals in para 11 mentioning that, “As far as the present case is concerned, admittedly, contraband articles were not found during the personal search of the accused, but it was found in baggages carried by the applicant and other accused persons.”
Do further note, the Bench notes in para 12 that, “Insofar as the compliance is concerned, communication on record shows that samples were obtained in presence of panchas.”
Be it noted, the Bench notes in para 13 on purpose of filing application that, “The application is filed mainly on ground of an advanced pregnancy of the applicant. As the applicant was carrying pregnancy on the date of arrest and, now, is carrying an advanced pregnancy, there is an apprehension of complications during delivery of child.”
Most significantly and so also most remarkably, it is beyond a straw of doubt that what constitutes the cornerstone of this brilliant judgment is encapsulated in para 14 which postulates that, “It is true that the applicant can be treated at the Government Hospital for the said purpose. However, delivering child during pregnancy in jail atmosphere would certainly impact not only on the applicant but also on child, which cannot be lost sight of. Every person is entitled to dignity which situation demands including prisoner. Delivering child in prison may have consequence on mother as well as child and, therefore, humane considerations are required. The said aspect is considered in the case of R.D. Upadhyay vs. State of A.P. and ors, reported in (2007)15 SCC 337 wherein the Hon’ble Apex Court considered plight of children staying in jail with their mothers and issued directions as far as child birth in prison is concerned, as follows:
(a) As far as possible and provided she has a suitable option, arrangements for temporary release/parole (or suspended sentence in case of minor and casual offender) should be made to enable an expectant prisoner to have her delivery outside the prison. Only exceptional cases constituting high security risk or cases of equivalent grave descriptions can be denied this facility;
(b) Births in prison, when they occur, shall be registered in the local birth registration office. But the fact that the child has been born in the prison shall not be recorded in the certificate of birth that is issued. Only the address of the locality shall be mentioned, and
(c) As far as circumstances permit, all facilities for the naming rites of children born in prison shall be extended.”
It would be worthwhile to note that the Bench then very commendably noted in para 15 of this significant judgment that, “Thus, the Hon’ble Apex Court, in clear terms, guided that as far as possible arrangements for temporary release/parole should made to enable prisoner outside prison.”
As a corollary, it is a no-brainer that the Bench then holds in para 16 expounding that, “In the light of above said facts, if the case of the applicant is considered, there is no dispute as to fact that the applicant and other co-accused persons were found in possession of commercial quantity of contraband.”
Of course, the Bench then observes in para 17 that, “Admittedly, investigation is completed and chargesheet is filed.”
Most forthrightly, the Bench deems it fit to hold in para 18 that, “As far as merits are concerned, there is a prima facie material. Yet, in the light of guidelines issued by the Hon’ble Apex Court, few factors are to be taken into consideration that release of the applicant does not pose a high security risk and would not cause any prejudice to the investigation though there is a rigour under section 37 of the NDPS Act. However, considering the circumstances, the application to release the applicant on temporary bail deserves to be considered on humanitarian ground.”
Resultantly and finally, the Bench then concludes by holding in para 19 that, “For foregoing reasons, the application deserves to be allowed by imposing certain conditions. Hence, following order is passed:
ORDER
(1) The Criminal Application is allowed.
(2) Applicant – Surbhi d/o Raju Soni, shall be released on temporary bail, in Crime No.92/2024 registered with the non-applicant/police station for offences under Sections 20(b)(ii), 29, and 8(c) of the of the Narcotic Drugs and Psychotropic Substances Act, 1985, for a period of six months from the date of her release from the prison concerned on her executing a P.R.Bond in the sum of Rs.50,000/- with one or more sureties of the like amount to the satisfaction of learned Judge below.
(3) Considering the fact that the applicant is carrying an advanced pregnancy, she is permitted to furnish cash security of Rs.50,000/- in lieu of surety for a period of two weeks.
(4) The applicant shall not directly or indirectly make any inducement or threat or promise to any of witnesses acquainted with facts of the case so as to dissuade her from disclosing such facts to the court or any police officer and shall not tamper with the prosecution evidence.
(5) The applicant shall not indulge herself in similar type of activities.
(6) The applicant shall furnish her cell phone number(s) before the Investigating Officer as well as her address with her address proof. Application stands disposed of.”
All said and done, there can be no gainsaying that the Single Judge Bench of Nagpur Bench of Bombay High Court comprising of Hon’ble Ms Justice Urmila Joshi-Phalke has in its brief, brilliant, bold and balanced judgment very commendably made it absolutely clear that delivering child in jail would definitely affect adversely not just the mother but also the child. While taking into account the overall circumstances and the gravity of the compelling factors, the balance scale was tilted finally by the Nagpur Bench most commendably in favour of the applicant by granting her temporary bail subject to certain conditions as has already been mentioned hereinabove! No denying!
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