Pregnancy overrides NDPS bar: High court grants interim bail to protect unborn child

Holding that pregnancy constitutes a “special circumstance” warranting priority over the rigours of the NDPS law, the Punjab and Haryana High Court granted interim bail to a woman accused of possessing commercial quantity of heroin. The bench made it clear that the right to dignity under Article 21 extended equally to the unborn child and could not be eclipsed by statutory restrictions.

The court made it clear that even though the allegations involved recovery of 3 kg 120 grams of heroin — a commercial quantity attracting the stringent bar on bail under Section 37 of the NDPS Act — the humanitarian dimension of pregnancy required immediate judicial intervention. It stressed that compelling a woman to give birth in custody carries consequences far beyond the accused, directly affecting the child’s wellbeing and dignity.

Justice Subhas Mehla observed: “Pregnancy of a woman is a special circumstance, which ought to be given precedence over the gravity of the offence for the time being.”

Expanding the scope of constitutional protection, the court linked maternal custody conditions with the psychological and dignitary rights of the child. “Giving birth to a child while in custody is not only traumatic to the mother but is also detrimental to the child to be born, given the likelihood of adverse impact on the psyche of the child when questioned about his birth.”

The judgment also placed the issue within the broader constitutional framework, while reiterating that dignity was inseparable from life and liberty. “Right to live with dignity forms an intrinsic part of the fundamental right to life and personal liberty enshrined under Article 21 of the Constitution of India,” Justice Mehla asserted.

The court also invoked the doctrine of parens patriae to assert the judiciary’s role as protector of those unable to safeguard their own interests — particularly unborn children. “In such cases, the court must act as parens patriae, and consider that it is not in the interest of the child to be exposed to the prisons, except when there are extenuating circumstances, warranting rejection of release of the inmates.”

Balancing of statutory rigour against constitutional guarantees, the court held: “No doubt that Section 37 of the NDPS Act creates fetters on grant of bail. However, fundamental right to life and personal liberty guaranteed under Article 21 of Constitution supersedes the stringent provisions envisaged under Section 37 of the NDPS Act.”

The state had opposed interim relief in the matter while arguing that investigation was ongoing and would likely conclude by the end of May. The court declined to defer relief after noting that the petitioner’s expected date of delivery — June 11 — necessitated immediate medical care outside custodial conditions.

“Having regard to the facts and circumstances, and without commenting anything further on the merits of the case, given that medical care is required for delivery of the petitioner, this petition is partly allowed. Petitioner is directed to be granted interim bail for a period of two months…,”

The petitioner, arrested on November 17, 2025, in a case registered at the Mohkampura police station in Amritsar under provisions of the NDPS Act, had sought six months’ interim bail on medical and humanitarian grounds.

The ruling is significant as it reinforces a critical constitutional principle — that statutory embargoes, even under stringent laws like the NDPS Act, cannot override the fundamental right to life and dignity. By foregrounding the rights of the unborn child and invoking the state’s role as guardian, the high court carved out a humane exception, signalling that criminal law enforcement must yield, at least temporarily, where basic human dignity and maternal health are at stake.