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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Anoop Chitkara, J.
Monika - Appellant
Versus
State Of H P - Respondent
Cr M P (M) Criminal Misc Petition (Main) No. 243 of 2021
Decided On : 24-07-2021
NDPS Act - Anticipatory Bail - S. 37 of NDPS Act
Fact of the Case:
A pregnant woman seeks anticipatory bail after being accused of involvement in substance trade with her husband. The police recovered commercial quantities of drugs from their house, leading to the woman's arrest. The petitioner had no criminal history and was residing at her paternal home when the alleged offense took place.
Finding of the Court:
The Court considered various legal provisions, international conventions, and medical guidelines related to the health and rights of pregnant women in prison. It emphasized the need to balance individual rights and societal interests, especially in cases involving non-bailable offenses. The Court granted bail to the petitioner, subject to stringent conditions, taking into account her pregnancy and medical complications.
Issues: The main issues revolved around the petitioner's entitlement to bail under S. 37 of the NDPS Act, considering the gravity of the offense, her pregnancy, and the absence of a criminal history.
Ratio Decidendi: The Court's decision was influenced by legal principles outlined in Gurbaksh Singh Sibbia v State of Punjab, which emphasized the need to consider various circumstances justifying the grant or refusal of bail. The Court also considered the special rights of bail for pregnant women under S. 437 of CrPC and international conventions such as the Bangkok Rules and the Convention on the Elimination of All Forms of Discrimination against Women.
Final Decision: The Court granted bail to the petitioner, subject to strict terms and conditions, taking into account her pregnancy and medical complications. The Court imposed stringent conditions to ensure her appearance and compliance with the bail order.
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
The judgment emphasizes the importance of balancing individual rights with societal interests, especially in cases involving non-bailable offenses and the special rights of bail for pregnant women, considering relevant legal provisions and international conventions [judgement_subject].
The case involved a pregnant woman accused of involvement in substance trade, with drugs recovered from her house. She had no prior criminal history and was residing at her paternal home at the time of the offense [fact_of_the_case].
The Court considered various legal provisions, including provisions for anticipatory bail under the CrPC, and the specific rights of pregnant women under applicable legal and international standards. It highlighted the need for special considerations for pregnant women in detention, including health and welfare concerns [finding_of_the_court] (!) (!) (!) (!) (!) .
The Court recognized the health risks and human rights considerations related to pregnancy, including the importance of prenatal care, mental health, and the potential trauma of incarceration during pregnancy and childbirth. It underscored the need for dignity and humane treatment of pregnant women in custody (!) (!) (!) (!) (!) .
International conventions and guidelines advocate for non-custodial measures for pregnant women, prioritizing their well-being and that of their unborn children, especially when the offense is not of a violent or serious nature (!) (!) .
The legal provisions provide for a special right to bail for women, particularly pregnant women, under certain conditions, which the Court considered in light of the facts of the case and the absence of a criminal history (!) (!) (!) (!) (!) .
The Court acknowledged the significance of health and safety during pregnancy, including access to appropriate medical care, nutrition, and hygiene, and the risks associated with incarceration during pregnancy, such as delays in medical attention and the impact on fetal health (!) (!) (!) (!) (!) .
The Court granted bail to the petitioner, considering her pregnancy, health complications, and lack of criminal history, while imposing stringent conditions to prevent tampering with evidence, influencing witnesses, or fleeing (!) (!) (!) (!) .
Conditions for bail included personal bonds, surety bonds, or fixed deposits, with detailed procedures for their execution and management, ensuring accountability and the ability to recover the bond amount if necessary (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
The order emphasizes that the rights of pregnant women to bail should be prioritized, and detention should be avoided unless absolutely necessary, especially considering the health and mental well-being of both mother and fetus (!) (!) (!) .
The Court also noted that any modifications to bail conditions could be made upon application if the circumstances of the petitioner change or if her rights are affected (!) .
Overall, the judgment advocates for humane treatment of pregnant women in detention, recognizing their unique needs, and stresses that even in serious cases, temporary bail or suspension of sentences should be considered to uphold their dignity and health (!) (!) .
Please let me know if you need further analysis or assistance with specific legal questions.
JUDGMENT
Anoop Chitkara, J. - 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.
2. 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.
3. 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.
4. 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.
5. Ld. Counsel for the bail petitioner, based on the pleadings in paragraphs 3 & 4 of the petition, submitted that from August 2020, the petitioner, along with her two minor children, had been residing at her paternal home at Phillaur, in Punjab, because her husband had married another girl. The petition further reads that she came to know about the case after the arrest of her mother-in-law.
6. Mr. Nand Lal Thakur, Ld. Additional Advocate General opposed the bail and contended that the accused has yet not discharged the presumption under S. 35 of the NDPS Act. Further, the quantity involved is commercial, and restrictions of S. 37 of the NDPS Ac
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