Thamanna Javeed Sheik vs The State Of Andhra Pradesh
2023 Latest Caselaw 5375 AP

     THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

             Criminal Petition No.8170 of 2023

ORDER:

This Criminal Petition, under Sections 437 and 439 of

Cr.P.C., has been filed by the petitioners/A.1 to A.3, seeking

regular bail, in Crime No.88 of 2023 of S. Kota Police Station,

Vizianagaram District.

2. A case has been registered against the petitioners for the

offence punishable under Section 8(c) read with 29(b)(ii)(C) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short „the NDPS Act‟).

3. Case of the prosecution, in brief, is that on 17.04.2023 at

about 8.30 hours, at Pandirappanna Junction of S. Kota Village

and Mandal, A.1 to A.3 are found in possession of 124 KGs of

dry Ganja in 62 bags. The contraband along with other material

was seized under the cover of panchanama and A.1 to A.3 were

sent for judicial custody.

4. Learned counsel for the petitioners submits that the

petitioner/A.1 is a pregnant woman, having eighth month

pregnancy and requested this Court to consider her case on

humanitarian ground and to enlarge her on bail.

5. Learned Assistant Public Prosecutor has not opposed the

same.

6. Heard. Perused the record.

7. The petitioners were arrested and sent to judicial custody

on 17.04.2023 and since then they are in jail. Learned counsel

for the petitioners has relied on Medical Certificate to show that

at the time of admission into prison by the petitioner/A.1, her

weight was 56 Kgs and now she is in the 8th month pregnancy

and is at 62 Kgs. However, she is complaining of frequent

crampy psendo pains and low backache which could be due to

advanciry pregnancy and also psendo delivery pains.

8. The cause stated by the learned counsel for the

petitioner/A.1 is established by the Medical Certificate issued by

the Deputy Civil Surgeon, Central Prison Hospital,

Visakhapatnam. Learned counsel for the petitioner/A.1 placed

reliance on a decision relating to NDPS offence in Monika vs.

State of Himachal Pradesh1, wherein, the High Court of

Himachal Pradesh, Shimla, observed as under:

Cr.MP(M) No.243 of 2021, dt:24.07.2021

"13.Therefore, it is imperative to consider Rule 64 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted by the General Assembly on 21 December 2010, according to which, "Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger, and after taking into account the best interests of the child or children, while ensuring that appropriate provision has been made for the care of such children."

Xxx "22. According to Lauren Kuhlik and Carolyn Sufrin, in Pregnancy, Systematic Disregard and Degradation, and Carceral Institutions, Harvard Law & Policy Review, [Vol. 14 2020], P 417, "An incarcerated pregnant person must, by default, rely on custody officers to triage any pregnancy related symptoms requiring medical attention, including possible labor symptoms. A pregnant person in custody does not have the freedom to call their health care provider or an ambulance or to go to a hospital, but must instead notify a custody officer who serves, functionally, as the gatekeeper to a pregnant person accessing medical personnel. The response of a custody officer, who is not a medical professional and typically has had no training from the institution on proper pregnancy care or warning signs, should always be to contact medical staff. This need is particularly salient in pregnancy because concerning signs in pregnancy or labor symptoms may often be subtle, such as light bleeding, cramping, or even a headache. In reality, however, custody officers may make their own, unqualified assessments as to whether a pregnant

person‟s symptoms warrant medical attention, or whether they are "really" in labor--leading to delays and neglect in care. Custody officers‟ gatekeeping position allows them not only to exercise their lack of clinical judgment, but also to exercise potential punitive, moral judgments about pregnant incarcerated people. Institutions of incarceration are rarely held accountable for failing to provide prenatal care except when that failure results in an adverse pregnancy outcome."

9. Considering the submissions made by learned counsel for

the petitioner/A.1 regarding the petitioner/A.1 being a pregnant

woman, having eighth month pregnancy and also the decision

referred supra, this Court is inclined to grant bail to the

petitioner/A.1 only. Learned counsel for the petitioner

withdrawn the case in so far as the petitioners/A.2 and A.3 are

concerned.

10. Accordingly, the Criminal Petition is partly allowed. The petitioner/A.1 shall be released on bail on executing a personal bond for Rs.20,000/- (Rupees Twenty Thousand only) with two sureties for the like sum each to the satisfaction of the Judicial Magistrate of First Class, Srungavarapukota. The relief, as sought for, in respect of the petitioners/A.2 and A.3 is dismissed as withdrawn.

__________________________ JUSTICE T. MALLIKARJUNA RAO Dated: 08.11.2023 Note: Issue CC today (B/O) MS

THE HON'BLE SRI JUSTICE T MALLIKARJUNA RAO

CRIMINAL PETITION NO.8170 of 2023

Date: 08.11.2023

MS