Bombay High Court

Alfiya Faisal Shaikh vs Union Of India And Anr on 15 January, 2024

Author: N. J. Jamadar

Bench: N. J. Jamadar

2024:BHC-AS:2356
                                                                              4-BA4120-2023.DOC

                                                                                              Santosh

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CRIMINAL APPELLATE JURISDICTION


                                   BAIL APPLICATION NO. 4120 OF 2023

               Alfiya Faisal Shaikh                                                  ...Applicant
                                     Versus
               1. Union of India through Intelligence
               Officer, Narcotics Control Burau, Mumbai
               Zonal Unit.

               2. The State of Maharashtra                                     ...Respondents

               Mr. Himanshu Kude, i/b Sherali Khan, for the Applicant.
               Mr. Shreeram Shirsat, Special P.P., a/w Tanvi Mate, Tanveer
                     Khan, Shekhar Mane, Nishad Mokashi, Karishma
                     Rajesh, for Respondent No.1/UOI.
               Mr. S. R. Aagarkar, APP for the State/Respondent No.2.

                                                           CORAM: N. J. JAMADAR, J.
                                                           DATED: 15th JANUARY, 2024

               ORDER:

1. By virtue of this application the applicant, who is

arraigned in NDPS Special Case No.102181 of 2023 arising

out of CR No.11/2023, registered with Narcotics Control

Bureau, Mumbai - respondent No.1, for the offences

punishable under Sections 22(c), 27A, 28 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 ("the

NDPS Act") has preferred this application to release her on

bail on medical ground as she is carrying an advanced

pregnancy.

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2. The indictment against the applicant is that on the

basis of a specific information, NCB effected the seizure of 5

kg. of "white colour substance" purported to be Mephedrone

(MD) under a panchnama dated 9 th June 2023 from Room

No.802 Al-Amir Apartment, A-Wing, Dongri, Mumbai, from

one Shamiya Khan. It transpired that said substance was

supplied by the applicant and her husband Faisal Shaikh,

co-accused.

3. As a follow up action, a search operation at the house of

the applicant was conducted on 9 th June, 2023 in the

presence of public witnesses. The applicant was found in her

house Room No.103, Ansari Heights. Upon being enquired,

the applicant allegedly voluntarily disclosed that anticipating

action by NCB she had concealed a packet containing 15 kg.

MD on the second floor of the said building behind the door,

near the lift. The raiding party accompanied by the public

witnesses went to the said spot and found a bag consisting of

15 packets of "white colour substance" concealed behind the

door, near the lift. The applicant allegedly identified and

confirmed that the said bag was concealed by her. The

contraband article was seized and samples were collected

from each of the packets.

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4. During the house search, cash amount of

Rs.1,10,24,000/- and gold ornaments were also found. The

applicant disclosed that the cash amount and the ornaments

were the proceeds of the drug trafficking indulged in by the

applicant and her husband. Eventually, the applicant, her

husband and other co-accused were arrested.

5. At the time of arrest, the applicant was carrying two

months pregnancy. Now the applicant is carrying an

advanced pregnancy. The applicant preferred an application

before the Special Judge for bail on medical ground. The

learned Special Judge declined to exercise the discretion.

Hence, this application.

6. Respondent No.1. NCB resisted the prayer for bail

primarily relying upon the huge cache of the contraband

allegedly found in possession of the applicant and the

enormous ill-gotten wealth, which the applicant and her

husband generated, by indulging in drug trafficking in the

form of cash amount, ornaments and immovable properties.

The interdict, contained in Section 37 of the NDPS Act,

operates with full rigor and, therefore, the applicant does not

deserve to be released on bail. The applicant was stated to be

a habitual drug trafficker and in contact with international

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drug cartel and the release of the applicant on bail may

cause serious repercussions on the prosecution case and

there is also likelihood of the applicant making herself scarce

and tampering with the witnesses.

7. I have heard Mr. Himanshu Kude, the learned Counsel

for the applicant, Mr. Shirsat, the learned Counsel for

respondent No.1/NCB and Mr. Aagarkar, the learned APP for

the State.

8. The learned Counsel for the applicant submitted that

the medical reports submitted by the Superintendent,

Central Prison, Byculla, indicate that the applicant is

carrying advanced pregnancy. The applicant has had three

earlier births by Cesarean section. The applicant is

exhibiting symptoms which are indicative of probable

complication at the time of the delivery of the child.

Therefore, on humanitarian ground the applicant deserves to

be released on temporary bail. The learned Counsel for the

applicant further submitted that the prison, where the

applicant is incarcerated, is not equipped to provide the

emergent medical care which the applicant imminently

requires.

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9. To lend support to the aforesaid submissions, The

learned Counsel for the applicant placed reliance on the

judgment and order passed by this Court in Criminal Public

Interest Litigation (St) No.46 of 2015 (Jan Adalat and anr. vs.

The State of Maharashtra and anr.) dated 1st March, 2017,

noting the conditions of the prisons, an order of the Supreme

Court in the case in Special Leave to Appeal (Cri.) No(s).2366

of 2021, (Drabhamon Phawa vs. State of NCT Delhi) dated

17th December, 2021, an order of this Court in

BA/2706/2023, (Ruksana @ Saniya Hamid Hussain vs. The

State of Maharashtra) dated 14 th September, 2023, an order

of the Delhi High Court in BA/1318/2020, (Safoora Zargar

vs. State) dated 23rd June, 2020, an order of the Karnataka

High Court in Criminal Petition No.200107/2021, (Smt.

Rekha @ Siddamma w/o Sanna Pakeerappa and anr. vs. The

State of Karnataka) dated 29th January, 2021, an order of

High Court of Himachal Pradesh, Simla, in Cr.MP(MP) No.243

of 2021, (Monika vs. State of H.P.) dated 24th July, 2021 and

an order of the Punjab and Haryana High Court at

Chandigarh in CRM-M-60-285-2023 (O&M) (Amajnot Kaur

vs. State of Punjab) dated 8th December, 2023.

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10. Mr. Shirsat, the learned Counsel for respondent

No.1/NCB, however, stoutly resisted the prayer for interim

bail. It was submitted that respondent No.1 NCB does not

contest, for a moment, the necessity of medical treatment and

intervention for the delivery by the applicant. However, the

applicant does not deserve to be released on bail for the said

purpose as the applicant can be provided the requisite

medical treatment and care at a Government Hospital.

Therefore, the application does not deserve to be entertained

especially having regard to the fact that the applicant and her

entire family has been habitually indulging in drug

trafficking. The release of the applicant on bail is fraught

with the risk of tampering with evidence, threatening

witnesses and even absconding. There is imminent risk that

the applicant, taking undue advantage of the interim bail,

would indulge in drug trafficking.

11. Mr. Shirsat would urge that the fact that the applicant

is a women does not by itself dilute the rigor of the provisions

contained in Section 37 of the NDPS Act. Reliance was

sought to be placed on the judgment of the Supreme Court in

the case of Saumya Chaurasia vs. Director of Enforcement

(Criminal Appeal No.3841/2023) wherein the Supreme Court

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in the context of the bar contained in proviso to Section 45 of

the Prevention of Money Laundering Act, 2002 ("the PMLA")

enunciated that the benefit of the said proviso to the category

of the persons mentioned therein may be extended at the

discretion of the Court considering the facts of each case,

and could not construed as it is mandatory or obligatory on

the part of the Court to release persons of the said category

on bail. Mr. Shirsat also placed reliance on the judgment of

the Supreme Court in the case of Union of India vs.

Ajaykumar Singh @ Pappu in SLP (Cri) No.2351/2023,

wherein the Supreme Court emphasised the satisfaction of

the twin requirements envisaged by Section 37 of the Act

before releasing an accused on bail.

12. Mr. Shirsat invited the attention of the court on an

order passed by this Court in the case Shahenas Afsar

Shaikh vs. The State of Maharashtra in ABA/627/2022,

wherein this Court declined to exercise the discretion though

the applicant therein was carrying pregnancy.

13. I have carefully considered the submissions canvassed

across the bar. The position that the applicant was allegedly

found in possession of commercial quantity of MD and,

therefore, the interdict contained in Section 37 of the NDPS

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Act comes into play and the Court is required to satisfy itself

about the twin conditions envisaged by Section 37 of the

NDPS Act cannot be contested. The question that emerges

for consideration is, whether the applicant, who is admittedly

carrying advanced pregnancy, deserves to be released on

temporary bail?

14. The following facts borne out by the material on record

deserve to be noted. One, the applicant was carrying

pregnancy on the date of arrest. Two, the applicant is now

carrying an advanced pregnancy. Three, the previous three

births were by Cesarean section. Four, the medical report

indicate that the applicant is exhibiting symptoms associated

with a complicated pregnancy.

15. It is true that applicant can be made to have the

treatment at a Government Hospital for the said purpose.

However, the impact of such course not only on the applicant

but also the child cannot be lost sight of. A prisoner is

entitled to the dignity which the situation demands. Giving

birth to a child in the prison may have consequences not only

to the mother but the child as well. Ordinarily, a situation of

this nature where a lady is carrying advanced pregnancy,

deserves most humane consideration.

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16. A useful reference, in this context can be made to the

judgment of the Supreme Court in the case R. D. Upadhyay

vs. State of Andra Pradesh and others (2007) 15 SCC 337,

wherein the Supreme Court was concerned with the plight of

children who were in jail with their mothers. The Supreme

Court gave, inter alia, the following directions as regards,

Childbirth in prison:

"45. .....

3. Childbirth in prison:

(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.

(c) As far as circumstances permit, all facilities for the naming rites of children born in prison shall be extended."

17. The Supreme Court has thus directed in clear and

explicit terms that as far as possible arrangement for

temporary release/parole should be made to enable an

expectant prisoner to have her delivery outside the prison.

Only in exceptional cases constituting high security risk or

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cases of equivalent grave descriptions, the said facility can be

denied to the expectant prisoner.

18. Whether the case at hand falls in such exceptional

category?

19. Mr. Shirsat made a strenuous effort to draw home the

point that the applicant and her entire family have been

indulging in drug trafficking. Emphasis was laid on the fact

that the 50 gm. of MD constitutes commercial quantity and

huge quantity of MD i.e. 15 kg. was found in the possession

of the applicant. In addition, there is material to indicate that

5 kg. MD seized from the possession of Shamiya Khan was

also supplied by the applicant. Moreover, enormous ill-gotten

wealth has been unearthed, for which the applicant could not

offer any explanation. Taking the Court through the

statements of the applicant and co-accused recorded under

Section 67 of the NDPC Act Mr. Shirsat would urge that the

applicant is the kingpin of the drug cartel.

20. I have carefully perused the material on record. I am

not inclined to delve into the merits of the matter as the

prayer for bail is being considered to facilitate the delivery

outside the prison only. Yet, few factors need to be noted to

satisfy the conscious of the Court that the release of the

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applicant does not pose a high security risk and it does not

have the propensity to cause grave prejudice to the

investigation and the object of arresting the menace of drug

trafficking.

21. First, as is evident from the prosecution case, the

contraband was not found in the house of the applicant. The

prosecution alleges the applicant voluntarily disclosed that

she had concealed it on the second floor of the building.

Second, though the prosecution alleges that the applicant

has been habitually dealing in drug trafficking, there is no

criminal antecedent qua the applicant. Third, the applicant's

husband has allegedly been indulging in the trafficking in

contraband articles and a number of cases haven been

registered against him. The said fact alongwith forfeiture of

the cash amount, ornaments and immovable property, which

allegedly constitutes the proceeds of the drug trafficking,

brings in its trail multiple possibilities ranging from the

applicant being a person had knowledge that her husband

indulged in those activities to the applicant herself being a

privy thereto. These are the matters for evidence and trial.

These factors, in my considered view, do not present the

applicant as a person, who falls in the exceptional category

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where the Court would be justified in declining to grant the

facility of delivery outside the prison.

22. For the foregoing reasons, I am inclined to allow the

application and release the applicant on temporary bail for

the period of two months. To ensure that the liberty is not

abused, I propose to impose stringent conditions.

23. Hence, the following order:

ORDER

(i) Application stands allowed.

(ii) The applicant Alfiya Faisal Shaikh be released on

temporary bail for the period of two months from the

date of her release from prison, in NDPS Special Case

No.102181 of 2023 arising out of CR No.11/2023,

registered with Narcotics Control Bureau, Mumbai, on

furnishing a P.R. Bond of Rs.50,000/- with one or

more sureties in the like amount to the satisfaction of

the Special Judge.

(iii) Considering the fact that the applicant is carrying an

advanced pregnancy, the applicant is permitted to

furnish cash security of Rs.50,000/- in lieu of surety

for the period of three weeks.

(iv) The applicant shall not contact any of the co-accused,

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any witness or any person acquainted with the facts of

the case.

(v) The applicant shall not tamper with the prosecution

evidence. The applicant shall not directly or indirectly

make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade

him from disclosing the facts to Court or any police

officer.