In a significant judgment, the Punjab and Haryana High Court has made it clear that restrictions on bail in cases involving commercial quantity of contraband did not impose absolute prohibition when the relief was sought on humanitarian grounds.
Justice Deepak Gupta emphasised that Section 37 of the NDPS Act did create limitations on the grant of bail in instances where the accused was charged with the possession of contraband of commercial nature. But the provision should not be interpreted as an all-encompassing barrier, preventing the judiciary from exercising its discretion in granting interim bail when humanitarian considerations were at play.
The assertion came in a pregnant woman’s case. Justice Deepak Gupta underscored that the petitioner’s alleged possession of contraband, falling under commercial category, should not overshadow the unique circumstances of the case—her pregnancy.
Section 37 makes it clear that the severity or strictness in granting bail was applicable to offences involving commercial quantity. It indicates that no person accused of an offence punishable under this law “shall be released on bail or on his own bond unless— the public prosecutor has been given an opportunity to oppose the application for such release and where the public prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”
Justice Gupta asserted the petitioner was allegedly found in possession of contraband falling in commercial category. But her pregnancy was a special circumstance, in which the gravity of the offence was liable to be ignored for the time being.
Justice Gupta emphasised that the act of giving birth to a child while in custody was not only traumatic for the mother, but would also have a lasting adverse impact on the child’s psyche when questioned about birth. Moreover, there was need to ensure dignity to pregnant women in line with the fundamental rights enshrined under the Article 21 on life and liberty.
Justice Gupta further underscored the importance of considering the child’s best interest in such cases, pointing out that subjecting an infant to the prison environment was not expected unless there was a clear and grave danger associated with releasing the petitioner on bail.
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