HC, while granting bail to a prisoner, held that delivering a child in prison may have consequences on the mother as well as the child, Read Judgment

Recently, the single judge bench of the Bombay High Court granted bail to the pregnant applicant involved in the case for offences under Sections 20(b)(ii), 29, and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) while holding that delivering a child in prison may have consequence on mother as well as child and, therefore, humane considerations are required.

Brief Facts:

The factual matrix of the case is that the raid was conducted on train, and during the raid, contraband “Ganja” was recovered from five persons, including the applicant. Thereafter, samples were obtained and forwarded for chemical analysis. The applicant was arrested, and the case was registered under Sections 20(b)(ii), 29, and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). At the time of arrest, she was two months pregnant, and now, she is carrying an advanced pregnancy. Therefore, the present application is filed.

Contentions of the Applicant:

The learned counsel appearing on behalf of the Applicant submitted that the applicant is experiencing symptoms which are indicative of probable complications at the time of delivery of the child and, therefore, on humanitarian grounds, the applicant deserves to be released on temporary bail. It was furthermore submitted that the applicant is in prison, which is not equipped to provide the emergent medical care which the applicant requires.

Observations of the Court:

The Hon’ble Court observed that delivering a child during pregnancy in a jail atmosphere would certainly impact not only the applicant but also the child, which cannot be lost sight of. Every person is entitled to dignity, which the situation demands, including the prisoner. Delivering a child in prison may have consequences on the mother as well as the child, and therefore, humane considerations are required.

The court relied upon the judgment titled R.D.Upadhya vs State of A.P. and Ors wherein the Hon’ble Apex Court dealt with the plight of children staying in jail with their mothers and issued directions as far as childbirth in prison is concerned.

The court noted that the 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.

Based on these considerations, the court released the applicant on bail on humanitarian grounds.

The decision of the Court:

With the above direction, the court allowed the criminal application.

Case Title: Surbhi Vs State of Maharashtra

Coram: Hon’ble Mr Justice Urmila Joshi Phalke

Case No.: Criminal Application No. 940 OF 2024

Advocate for the Applicant: Shri M.V. Rai

Advocate for the State: Shri S V Narale

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