Order On Board

21/09/2022 The applicant has been arrested in connection with Crime No.757/2022 registered at Police Station – Civil Line, District – Bilaspur (CG) for alleged commission of offences under Section 21, 22 and 29 of NDPS Act.

2. Prosecution case in brief is that on a raid conducted by the police, contraband was seized from the house of the applicant which is in joint possession of her husband.

3. Learned counsel for the applicant submits that the applicant is carrying pregnancy of 6 months. The applicant is the wife of the main accused – Dharmendra Gendle and according to the case of the prosecution, house of the present applicant and her husband was raided by the police in the mid-night on the date of incident and allegedly seized contraband. He submits that the applicant has been arrayed as an accused because she happens to be present in the house at the time of raid. He further submits that it is natural that being wife of the co-accused namely Dharmendra Gendle, she would remain in the house with her husband and at the time when raid was conducted, she was carrying pregnancy. He further submits that apart from her presence in the house, no incriminating evidence has been collected by the prosecution to connect the applicant with the alleged offence. He submits that there are some criminal antecedents against the husband of the present applicant, therefore, name of the applicant was also incorporated. It is next submitted that looking to the fact that presence of the applicant ipso facto would not make her an accused and there is no criminal antecedents of the present applicant goes to show that she was not involved in any of the offence and provision of Section 37 of the NDPS Act would not come into play in granting bail to the applicant. He relies upon order passed by the High Court of Himachal Pradesh, Shimla in CrMP (M) No.243/2021 (Monika v. State of H.P.) to contend that in the case stated on similar facts and circumstances, the High Court of Himachal Pradesh was pleased to grant anticipatory bail to the applicant. He relies upon paragraphs 34, 35, 36 and 37 which are reproduced as below -

“34. 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.

35. The next question is since the allegations against the petitioner are for committing a heinous offense, attracting rigors of S.37 of NDPS Act, is she entitled to a limited period bail, or the entire trial period ?

36. To answer this question, the gravity of allegations and the nature of offense assumes significance. The accusations against the petitioner involve commercial quantities of psychotropic substances. Given this, the pre-conditions of S.37 of the NDPS Act might impede the judicial discretion of whether she is entitled to limited period bail or regular bail for the trial ?

37. The decision of this Court in Satinder Kumar v. State of H.P., 2020 SCC Online HP 3276, covers the proposition of law involved in this case, wherein this Court observed, “Satisfying the fetters of Section 37 of the NDPS Act is candling the infertile eggs.” The ratio of the said decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S.37 of NDPS Act.”

Therefore, he submits that looking to her medical conditions and that the applicant is in jail since 18/07/2022, she may be granted bail.

4. On the other hand, learned State counsel opposes bail application and submits that the applicant was arrested in the house which was raided and contraband was seized and her husband ran away. There are criminal antecedents against the husband of the present applicant but there is no crimina