Delivering child in jail affects mother and child: Bombay High Court grants bail to pregnant prisoner

The Nagpur Bench Bombay High Court recently granted temporary bail to a pregnant woman who was arrested in a drug possession case, after observing that delivering a child in jail would adversely impact both mother and child [SS vs State of Maharashtra]..Justice Urmila Joshi-Phalke emphasized that childbirth in prison could have serious consequences, reiterating that such cases warrant humane considerations.“Delivering child during pregnancy in jail atmosphere would certainly impact not only on the applicant but also on child, which cannot be lost sight of. Every person is entitled to dignity which situation demands including prisoner. Delivering child in prison may have consequence on mother as well as child and, therefore, humane considerations are required,” the Court said.The Court made these observations while granting six months of bail to a woman arrested in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).The case stemmed from a raid conducted in April 2024, during which 33.2 kilograms of ganja, valued at ₹6.64 lakhs was seized from multiple accused. Of this quantity, 7.061 kilograms were attributed to the bail applicant, which was allegedly found in her black pittu bag (backpack). Along with her husband and other co-accused, the woman faced charges of possessing a commercial quantity of narcotics, an offense under the NDPS Act..Her counsel argued for bail primarily on humanitarian grounds. He emphasized that the applicant, being in an advanced stage of pregnancy, faced potential complications that required specialized medical care which was unavailable in prison. Citing her constitutional right to dignity, he urged for her temporary release to ensure safer childbirth conditions.Opposing the bail plea, the State underscored the gravity of the alleged offense. It argued that the applicant’s involvement in transporting a commercial quantity of narcotics attracted the rigorous provisions of Section 37 of the NDPS Act, which restricts bail unless the Court is satisfied that there are reasonable grounds to believe the accused is not guilty and unlikely to commit a similar offense..The Court acknowledged the seriousness of the allegations but prioritised the humane considerations associated with childbirth in custody.Referring to the Supreme Court’s directives in RD Upadhyay v. State of Andhra Pradesh, which laid down guidelines for the treatment of pregnant prisoners, the High Court noted that delivering a child in a prison environment could adversely affect both the mother and the child.The Court further noted that the investigation in the NDPS case was complete, and that a chargesheet had been filed, therefore, diminishing any risk of tampering with evidence or witnesses."There is a prima facie material. Yet, in the light of guidelines issued by the Apex Court, few factors are to be taken into consideration that release of the applicant does not pose a high security risk and would not cause any prejudice to the investigation though there is a rigour under section 37 of the NDPS Act. However, considering circumstances, the application to release the applicant on temporary bail deserves to be considered on humanitarian ground," the November 27 order said..The Bench added that the Supreme Court has issued guidelines calling for the temporary release of pregnant prisoners so that they can give birth outside prison.Accordingly, the High Court granted the pregnant applicant temporary bail for six months..Advocate MV Rai appeared for the applicant, while Additional Public Prosecutor SV Narale represented the State..[Read order]