Introduction:
The Calcutta High Court has delivered a significant order highlighting the delicate balance between the stringent provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the constitutional obligation to protect the life and health of a pregnant woman and her unborn child. While reiterating that pregnancy is not an automatic ground for grant of bail in offences involving commercial quantities of narcotic substances, the Court held that exceptional humanitarian circumstances may justify temporary release where continued incarceration could adversely affect the health of the mother and the foetus.
The order was passed by Justice Tirthankar Ghosh in Shaista Khan v. Union of India (CRM (NDPS) 1437 of 2026). The petitioner, Shaista Khan, sought interim bail after her arrest on April 4, 2026, in a case registered by the Narcotics Control Bureau (NCB) involving the alleged recovery of narcotic substances worth nearly ₹63 crore. The prosecution alleged that the investigation had revealed the recovery of large quantities of MDMA tablets, cocaine, LSD, amphetamine, ganja and tramadol capsules from various premises allegedly connected with the petitioner. The investigation was also stated to have international ramifications, with assistance sought from foreign agencies.
The petitioner, however, did not seek bail on the merits of the prosecution case. Instead, her plea was founded entirely on humanitarian grounds, pointing out that she was in the advanced stage of pregnancy and expected to deliver her child on August 13, 2026. The case therefore required the Court to examine whether temporary liberty could be granted despite the rigorous restrictions imposed under Section 37 of the NDPS Act.
Arguments of the Parties:
The petitioner submitted that she was in the final stage of pregnancy and required appropriate prenatal care, medical supervision and a safe environment for childbirth. It was argued that although the allegations against her were serious, the present application was not intended to challenge the prosecution’s case on merits but was confined solely to her medical condition and the welfare of the unborn child.
The petitioner relied upon several judicial precedents in which constitutional courts had granted interim or regular bail to pregnant women on humanitarian considerations. Particular reliance was placed upon the decision of the Supreme Court in R.D. Upadhyay v. State of Andhra Pradesh, wherein the Court recognised the need to ensure proper prenatal and postnatal care to women prisoners and observed that, wherever circumstances permit, childbirth should preferably take place outside prison so as to safeguard the interests of both the mother and the child.
It was further submitted that the petitioner’s continued incarceration during the advanced stage of pregnancy could expose both her and the unborn child to avoidable health risks. Therefore, temporary release for a limited period, subject to strict conditions, would sufficiently balance the interests of justice and humanitarian concerns.
The Narcotics Control Bureau strongly opposed the prayer for interim bail. It argued that the present case involved the recovery of commercial quantities of narcotic drugs of extremely high value, estimated at approximately ₹63 crore. According to the prosecution, searches conducted at different locations connected with the petitioner resulted in the seizure of MDMA tablets, cocaine, LSD, amphetamine, ganja and tramadol capsules, indicating her alleged involvement in an organised narcotics network.
The NCB further submitted that the investigation was still in progress and involved international links. Requests had already been sent to foreign agencies, and several aspects of the alleged conspiracy were yet to be uncovered. Releasing the petitioner at such a crucial stage, according to the prosecution, could hamper further investigation and adversely affect efforts to identify other members of the syndicate.
The prosecution also relied upon Section 37 of the NDPS Act, which places strict limitations on the grant of bail in cases involving commercial quantities of narcotic substances. It was argued that the statutory conditions prescribed under the provision cannot be diluted merely because an accused is suffering from a medical condition. The prosecution referred to decisions of the Supreme Court emphasising that courts must exercise extreme caution while considering bail applications under the NDPS Act.
Court’s Judgment:
After considering the rival submissions and examining the materials placed on record, the Calcutta High Court granted interim bail to the petitioner until September 21, 2026, while making it clear that the relief was granted solely on humanitarian considerations and not on the merits of the prosecution case.
Justice Tirthankar Ghosh first acknowledged the seriousness of the allegations levelled against the petitioner. The Court observed that substantial quantities of various narcotic substances had allegedly been recovered from different locations linked to her and that the material collected during investigation could not be ignored at the present stage. The Court further noted that the investigation appeared to involve a wider network with international connections and that responses from foreign agencies were still awaited. Consequently, the allegations against the petitioner could not be treated lightly.
The Court also recognised the importance of the restrictions contained in Section 37 of the NDPS Act. It reiterated that offences involving commercial quantities of narcotic substances stand on a different footing and that the legislative intent behind Section 37 is to make the grant of bail an exception rather than the rule. Therefore, pregnancy by itself could never constitute an automatic or unconditional ground for release in every NDPS case.
However, the Court emphasised that the peculiar facts of the present case required a humanitarian approach. It observed that there was no dispute regarding the petitioner’s advanced stage of pregnancy or the expected date of delivery. The Court further noted that the investigation was likely to continue for a considerable period because of its international dimensions and the need to await responses from foreign authorities.
In these exceptional circumstances, the Court held that the health of the expectant mother and the welfare of the unborn child deserved due consideration. Justice Ghosh observed that while the gravity of the allegations remained significant, the constitutional concern for protecting human dignity, maternal health and the viability of the foetus could not be ignored merely because the accusations related to offences under the NDPS Act.
Clarifying the scope of the relief granted, the Court expressly held that pregnancy does not automatically entitle an accused person to bail. Rather, each case must be decided on its own facts after balancing the seriousness of the allegations against the humanitarian considerations arising from pregnancy.
Having weighed these competing considerations, the Court found that temporary release would sufficiently protect the petitioner’s health without causing undue prejudice to the ongoing investigation, provided stringent safeguards were imposed.
Accordingly, the High Court directed that the petitioner be released on interim bail up to September 21, 2026. The Court imposed several strict conditions to ensure that the investigation was not hampered. The petitioner was directed to surrender her passport before the concerned court and prohibited from leaving the jurisdiction of the Kolkata Municipal Corporation during the period of interim bail. She was also required to furnish her active mobile number to the investigating agency, keep location tracking enabled through Google Maps, inform the investigating officer regarding the hospital where she intended to deliver the child and remain available for surprise inspections whenever required by the investigating agency. Finally, the Court directed her to surrender before the Special Court on September 22, 2026.
The order demonstrates the High Court’s careful attempt to strike a balance between the stringent statutory framework governing narcotics offences and the constitutional commitment to preserving life, dignity and maternal health. While reaffirming that Section 37 of the NDPS Act continues to impose rigorous limitations on the grant of bail, the Court recognised that humanitarian considerations may justify temporary relief in exceptional situations where the health of a pregnant woman and her unborn child is at stake. The judgment thus reinforces that even in cases involving serious criminal allegations, courts retain the responsibility to ensure that the administration of criminal justice remains humane, fair and consistent with constitutional values.