While granting anticipatory bail to a pregnant woman accused under the NDPS Act, a Single Judge Bench comprising of Justice Anoop Chitkara of Himachal Pradesh High Court in a latest, learned, laudable and landmark judgment titled Monika vs State of HP in Cr.MP(M) No. 243 of 2021 delivered just recently on July 24, 2021 observed that there should be no restraint to a woman throughout the period of her pregnancy as restraints and confined spaces might cause mental stress to a pregnant woman. It was also held that every expecting female deserves dignity during motherhood and that in such conditions, a pregnant woman deserves bail and not jail. It was also rightly observed that heavens will not fall if the incarceration is postponed.
To start with, this notable judgment authored by a Single Judge Bench comprising of Justice Anoop Chitkara of Himachal Pradesh High Court sets the ball rolling by first and foremost observing in para 1 that, “A pregnant woman, apprehending her arrest on the allegations of conspiring with her husband in substance trade, from whose house the Police had recovered 259 grams of diacetylmorphine (heroin) and 713 grams of tablets containing tramadol, the quantities of both drugs falling in the commercial category, attracting the rigors of S. 37 of NDPS Act, came up before this Court under Section 438 CrPC, seeking anticipatory bail.”
In hindsight, the Bench then points out in para 2 that, “Earlier, the petitioner had filed a bail petition before Ld. Special Judge, Distt Kangra. However, vide order dated 19-01-2021, passed in Bail Application No. 30- D/XXII/2021, the application was dismissed.”
As we see, the Bench then puts forth in para 3 that, “In Para 10 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.”
To put things in perspective, the Bench then enunciates in para 4 that, “Briefly, the allegations against the petitioner are that on the midnight of Nov 29, 2020, the DySP, who was also officiating as SHO of the Police station Damtal, received a secret information that Dharminder alias Govinda (husband of the petitioner) had received a large quantity of psychotropic substances, which he had concealed in his residential house. The informant also disclosed that Dharminder would disburse the same during the night. Upon this, the DySP informed ASP, his superior officer, who further conveyed to him that he would join him soon. After that, the Investigator and other police officials, along with the drug detection kit, etc., reached the concerned place. In the meanwhile, they also associated independent witnesses. At 1:40 a.m., they reached in the village Channi at the house of Dharminder, alias Govinda. When they knocked on the door, a lady came out of the house and revealed her name as Raj Kumari (mother-in-law of petitioner). The Investigator informed her about their intention to search the house and informed Raj Kumari about her legal rights under S. 50 of the NDPS Act. When the Investigator inquired about Dharminder, she said that he and his wife were sleeping on the upper floor. On this, the Police officials went to the upper floor and knocked on the door, but no body opened it. After that, they made a forced entry, but no one was inside the room. They further noticed that the back door was open. Subsequently, while searching the house, they noticed a secret cabin on the wall below the plyboard of the LCD panel. On removing its door, the Investigator recovered a considerable quantity of cash, jewelry, a white-colored plastic packet, and brown colored packet, which had some powder. On opening the same, it contained brown colored substance resembling heroin, and on testing, it gave a positive result for diacetylmorphine (heroin). The substance, when weighed on an electronic scale, measured 259 grams. The Police also recovered 1091 capsules of Ridley tramadol, gross weight 713 grams. The Police also recovered cash amounting to Rs.14,50,000/-, besides gold, silver, etc. After that, the Investigator completed the procedural requirements under the NDPS Act and the CrPC and arrested Raj Kumari. She revealed during her interrogation that Dharminder and Monika, petitioner herein, had absconded from the backside. Subsequently, the Investigator also arrested Dharminder alias Govinda. Based on these allegations, the Police registered the FIR mentioned above.”
As it turned out, the Bench then discloses in para 8 that, “On 02.02.2021, this Court issued notice to the State to file status report. Vide order dated 23.02.2021, this Court granted interim bail to the petitioner, which is continuing till date. In the meantime, the petitioner has filed a medical record about her pregnancy. One such document dated 9th Mar 2021 is in the following terms:

REPORT
On trans-Abdominal sonography- Gravid uterus shows single g sac with viable fetus CRL=6.6 cms=12W06d; Liquor is adequate; Cardiac & Somatic activity is seen; EDOD++15/09/2021; Nasal bone seen. N T measure 1.4 mm; Internal os is closed; Ovary show normal scan.
Opinion=ongoing pregnancy of 12w06d Showing normal cardiac activity.””
Needless to say, the Bench then states in para 9 that, “Thus, as on 9th Mar 2021, the petitioner was carrying pregnancy of 90 days, i.e., three months. Mr. Rajiv Sharma, Ld. Counsel for the petitioner, submitted that she is in the seventh month of her pregnancy and has some medical complications. The State did not refute the contentions.”

ANALYSIS AND REASONING
While citing the relevant case laws, the Bench then envisages in para 10 that, “In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Hon’ble Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. Per Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question of jail, and also the heinousness of the crime. In Gudikanti Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In Prahlad Singh Bhati v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State’s immense interest and similar other considerations. In Dataram Singh v State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”
In short, the gist of para 11 is that, “The proviso to S. 437 of CrPC, creates a special right of bail in favour of a person who is under the age of sixteen years or is a woman or is sick or infirm.”
Furthermore, it is then enjoined in para 12 that, “Article 51(c) of the Constitution of India is a provision which acts as a beacon for international coordination towards similarities of laws around the globe. It enjoins the state ‘to foster respect for international law.’ It provides that,

“The State shall endeavor to—
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another,”.”
Be it noted, the Bench then observes in para 13 that, “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.””
It is worth noting that the Bench then points out in para 14 that, “Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979, reads as follows,

Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
Rest of the article is available on sundayguardianlive.com

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.”

It is also worth noting that the Bench then enunciates in para 15 that, “The National Health Portal of Government of India depicts that, “The environment is everything around us wherever we are at home, at work, or outdoors; Although you don’t need to worry about every little thing you breathe in or eat, it’s smart to avoid exposure to substances that might put your pregnancy or unborn baby’s health at risk.”

What cannot be glossed over is then stated in para 16 that, “Per the report of Ministry of Women and Child Development Government of India, on Women in Prisons, launched by the Ministry of Women and Child Development, 25-06-2018,5 “As per most recent data available from the end of 2015, there are 4,19,623 persons in jail in India, of which, 17,834 (about 4.3%) are women. Of these, 11,916 (66.8%) are undertrial prisoners. In India, an analysis of prison statistics at five-year intervals reveals an increasing trend in the number of women prisoners – from 3.3% of all prisoners in 2000 to 4.3% in 2015. A majority of female inmates are in the age group of 30-50 years (50.5%), followed by 18-30 years (31.3%). Of the total 1,401 prisons in India, only 18 are exclusive for women, housing 2,985 female prisoners. Thus, a majority of women inmates are housed in women’s enclosures of general prisons.”

Without mincing any words, the Bench then states in para 32 that, “Taking birth in jail could possibly be such a trauma to the child that social hatred might follow, potentially creating an everlasting impact on the mind whenever questioned about birth. It is high time to take a contrarian call to the maxim Partus sequitur ventrem.”

While continuing in a similar vein, the Bench then most commendably holds in para 33 that, “Good and nutritious food in prisons may give good physical health but cannot substitute good mental health. Restrains and confined spaces might cause mental stress to a pregnant woman. Giving birth in jail might cause her tremendous trauma. What difference will it make to the State and society by not postponing incarceration? What is so urgent to execute the sentence? Heavens will not fall if incarceration is postponed. There should be no restraints throughout pregnancy, no restraints during labor and delivery, and no restraints at least for a year after giving birth. Every expecting female deserves dignity during motherhood.”

Adding more to it, the Bench then equally commendably holds in para 34 that, “Pregnant women need bail, not jail! Courts must restore the due and sacrosanct freedom of women in motherhood pro tanto. Even when the offenses are highly grave and accusations very severe, they still deserve temporary bail or suspension of sentence, extending to a year after delivery. Further, those who stand convicted and their appeals closed also deserve similar relief, in whatever camouflage it may come.”

It cannot be glossed over that the Bench then observes in para 39 that, “The petitioner was married to the accused around a decade ago and has no criminal background. However, her husband has a checkered criminal history. Thus, being a wife, she might be aware of her husband’s illegal activities. But that is not enough! What was her role? How much say she had in the home? Whether she could have intervened and persuaded him to stop illegal activities? Whether her intervention would have helped? The answers to all these factors will depend upon the quality of evidence adduced during the trial and the firmness of cross-examination at her end. The fact is that she has no criminal history of her own.”

Truly speaking, the Bench then concedes in para 40 that, “The confessional statement of mother-in-law, who is a co-accused is legally insufficient to deny bail to the other accused in the absence of any other incriminating evidence or allegations.”

Simply stated, the Bench then states in para 41 that, “The difference between a bail order and the final judgment is similar to that of a sketch and a painting. However, some sketches would be detailed, and some paintings with a few strokes.”

Interestingly enough, the Bench then also concedes in para 42 that, “Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, and keeping in view the nature of allegations, the petitioner has made out a case for grant of bail.”

What’s more, the Bench then holds in para 47 that, “The petitioner shall be released on bail in the FIR mentioned above, subject to her furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the Investigator. Before accepting the sureties, the Attesting Officer must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.”

For the sake of clarity, the Bench then makes it clear in para 54 that, “In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.”

In all fairness, it has to be conceded that this brief, brilliant, bold and balanced judgment by Justice Anoop Chitkara of Himachal Pradesh High Court has come as a shot in the arm for all such woman who land up in jail while they are pregnant. Justice Anoop has very rightly held that heavens will not fall if the incarceration is postponed. While endorsing the basic human rights, Justice Anoop very commendably holds that every expecting female deserves dignity during motherhood and that in such conditions, a pregnant woman deserves bail and not jail. The Court was dealing with an anticipatory bail plea filed by the pregnant woman apprehending arrest in an NDPS case in which her husband and mother-in-law were arrested by the police. The Court as we see has accorded genuine reasons for granting bail to such pregnant women as stated above. Very rightly so!

Sanjeev Sirohi, Advocate,