Case Note & Summary
The applicant, Surbhi d/o Raju Soni, was arrested on 30 April 2024 in connection with Crime No.92/2024 registered at Gondia Railway Police Station for offences under Sections 20(b)(ii), 29, and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The crime arose from a raid conducted by the Gondia Railway Security Force in Train No.08327 (Sambalpur-Pune Express), where contraband 'Ganja' was recovered from beneath seat numbers 17 to 21 in Coach B-3 from five persons including the applicant. The applicant was found in possession of 7.061 kilograms of ganja from a black pittu bag, and the total commercial quantity recovered from all accused was 33.201 kilograms worth Rs.6,64,020/-. At the time of arrest, the applicant was two months pregnant, and by the time of the bail application, she was carrying an advanced pregnancy. The applicant filed the present application seeking temporary bail on humanitarian grounds, citing the advanced stage of pregnancy and potential complications during delivery. The State opposed the application, arguing that commercial quantity was involved and that the rigour of Section 37 of the NDPS Act barred bail. The court heard arguments from both sides. The applicant's counsel submitted that only 7.061 kg was seized from her, which is not commercial quantity, and that the prison lacked facilities for emergent medical care. The State contended that due care could be taken in prison and that the commercial quantity and Section 37 rigour warranted rejection. The court analyzed the facts and noted that there was no dispute about the recovery of commercial quantity. It observed that Section 50 of the NDPS Act, which requires informing the accused of the right to be searched before a magistrate or gazetted officer, applies only to personal search and not to baggage, and thus compliance was not mandatory here. The court acknowledged the prima facie material against the applicant but emphasized the humanitarian aspect. Relying on the Supreme Court's decision in R.D. Upadhya v. State of A.P. (2007) 15 SCC 337, which held that expectant prisoners should be temporarily released for delivery outside prison except in high-security risk cases, the court found that the applicant's release would not pose a high security risk or prejudice the investigation. The court allowed the application and granted temporary bail for six months from the date of release, subject to conditions including a PR bond of Rs.50,000/- with one or more sureties, with an option to furnish cash security for two weeks due to advanced pregnancy. The applicant was also directed not to tamper with evidence, not to indulge in similar activities, and to provide her cell phone number and address.
Headnote
A) Narcotic Drugs - Bail - Temporary Bail on Humanitarian Grounds - Sections 20(b)(ii), 29, 8(c), 37, 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The applicant, a pregnant woman, was found in possession of 7.061 kg of ganja (commercial quantity) along with co-accused. She sought temporary bail due to advanced pregnancy and risk of complications. The court, while noting prima facie material and rigour of Section 37, held that humanitarian considerations and the Supreme Court guidelines in R.D. Upadhya v. State of A.P. (2007) 15 SCC 337 regarding childbirth in prison warrant temporary release. The court allowed temporary bail for six months with conditions, emphasizing that delivering child in jail would impact both mother and child's dignity. (Paras 1-19) B) Narcotic Drugs - Search and Seizure - Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The court observed that Section 50 applies only to personal search of the accused and not to search of baggage, articles, vehicles, or containers. In this case, contraband was recovered from a bag, not from personal search, so compliance with Section 50 was not mandatory. (Paras 10-11) C) Constitutional Law - Right to Dignity - Prisoners' Rights - The court recognized that every person, including a prisoner, is entitled to dignity. Delivering a child in prison would have adverse consequences on both mother and child, and thus humane considerations require temporary release for childbirth outside prison. (Para 14)
Issue of Consideration
Whether an accused pregnant woman found in possession of commercial quantity of ganja under NDPS Act is entitled to temporary bail on humanitarian grounds despite the rigour of Section 37 of the NDPS Act.
Final Decision
The Criminal Application is allowed. Applicant Surbhi d/o Raju Soni shall be released on temporary bail for a period of six months from the date of her release on executing a PR Bond of Rs.50,000/- with one or more sureties. She is permitted to furnish cash security of Rs.50,000/- in lieu of surety for two weeks. She shall not tamper with evidence, indulge in similar activities, and shall provide her cell phone number and address.
Law Points
- Humanitarian considerations can override rigour of Section 37 NDPS Act for temporary bail
- Advanced pregnancy is a ground for temporary bail
- Section 50 NDPS Act applies to personal search not baggage
- Childbirth in prison impacts dignity of mother and child
