"Pregnant women need bail, not jail:" Himachal Pradesh High Court grants pre-arrest bail to pregnant woman in NDPS case

Pregnant women need bail and not jail, observed the Himachal Pradesh High Court recently while granting anticipatory bail to a pregnant woman who was co-accused in a case registered under the Narcotic and Psychotropic Substances Act (NDPS Act). [Monika v. State of HP]..Taking into consideration the adverse effects that may ensue on the pregnant woman's mental and physical health if she is jailed while pregnant, the Court added that "Heavens will not fall if incarceration is postponed."."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", the order stated..Justice Anoop Chitkara further opined that there should be no restraint on the woman throughout the period of her pregnancy and a year after child birth. ."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," the Court said..The Court noted that while good and nutritious food in prisons may give good physical health, it cannot be a substitute for good mental health. Restraints and confined spaces might cause mental stress to a pregnant woman and giving birth in jail might cause her tremendous trauma, the Court observed. ."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."Himachal Pradesh High Court. The Court further expressed concern over the ill effects that a prison environment could have on a child born in jail. ."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 ... There should be no restraints throughout pregnancy restraints during labor and delivery, and no restraints at least for a year after giving", the Court said. .Case background.The application for pre-arrest bail was moved by one, Monika who had apprehended her arrest in an NDPS case after her husband and mother-in-law were arrested by the police. It was alleged that she had conspired with her husband in drug trade after a commercial quantity of heroin was recovered from her husband's house..The petitioner denied these allegations. On her behalf, the Court was also told that she had been residing at her paternal home along with her two minor children after her husband married another woman. The petitioner claimed that she came to know about the NDPS case only after her mother-in-law was arrested. .The State opposed the grant of bail on grounds that that the petitioner has been accused of a heinous offence. It was also contended that the petitioner had not satisfied the twin conditions laid down in Section 37 of the NDPS Act for the grant of bail in cases where a commercial quantiy of drugs is involved. .The Court, however, disagreed and found that the conditions under Section 37 of the NDPS Act have been satisfied in this case, thereby entitling the woman accused to bail.."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 crossexamination at her end. The fact is that she has no criminal history of her own… 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", the Court added. .The High Court proceeded to grant the petitioner anticipatory bail, subject to various stringent conditions. .The Court added that if any of these conditions were violated by the petitioner, "it shall always be permissible to the respondent to apply for cancellation of this bail after three months of her delivering the baby.".The Court also allowed the petitioner to move the High Court for the modification or deletion of any of the bail conditions if she feels that they violate her fundamental rights or cause any difficulty. .Advocates Govind Korla, Richa Sharma and Rajeev Sharma appeared for the petitioner. Additional Advocate General Nand Lal Thakur, Assistant Advocate General Ram Lal Thakur and Law Officer Rajat Chauhan appeared for the State. Advocate Bharat Barowalia assisted the Court as Amicus Curiae..[Read order]