Mumbai: Not trafficking, baby sale charge apt in adoption racket, says court

MUMBAI: Granting bail to a Worli businesswoman accused of running a child trafficking racket, a sessions court said the charge of "trafficking for exploitation" does not appear to be applicable as the child was sold for adoption. Instead, a case can be made out for the child's sale.

The FIR says there is trafficking of a newborn child and its purpose is mentioned as "giving in adoption". Section 370(4) of IPC is about trafficking of a person for exploitation. "Therefore, prima facie offence under Section 370(4)... does not appear to have been committed," said the court in its detailed order granting bail to 35-year-old Julia Fernandes and her aide, Shabana Shaikh, 40.

Section 370(4) prescribes rigorous imprisonment for a minimum of 10 years up to a life term. However, the court pointed out that another charge under the juvenile justice Act, punishable with up to five years imprisonment, is applicable.

"If Section 81 of the Juvenile Justice Act is seen, it is about sale and procurement of a child for any purpose. In view of the allegations, applicants along with other accused sold the child for adoption... I am of the opinion that if the case of prosecution is taken into consideration, it is about sale for the purpose of adoption," said the court.

Since the child was in safe custody and the money involved had been seized, further custodial interrogation of the two women was not required. "Taking into consideration the previous crime registered against applicants, they may be released on heavy bail by imposing conditions," said the court.

After a raid on a Sion hospital, the accused were arrested on August 2 on charges of selling a 15-day-old baby for Rs 15,000. In their bail plea, advocate Anil Kamble argued that an offence under Section 370 of IPC is not made out.

The prosecution opposed the plea, pointing out that they are wanted in another case (see box). "If they are released on bail, there is a possibility of repetition of crime. Biological parents of the (sold) newborn baby are to be traced," said the prosecution. The court ordered their release but imposed several conditions.

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