Delhi High Court: The applications were filed by the petitioners, Nigerian nationals facing charges under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 seeking modification of the conditions imposed upon them for grant of regular bail as they are not able to fulfil the conditions imposed by the court in their respective bail orders. Anup Jairam Bhambhani, J., held that there is no basis or justification to allow their prayers for waiver of surety, or for accepting cash in lieu of surety, however, as a measure of abundant accommodation modified the petitioners’ bail conditions as follows:
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Petitioner 1 was permitted to furnish a personal bond with 01 surety in the sum of Rs. 40,000/- (instead of 02 sureties in the sum of Rs. 1,00,000/-); and
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Petitioner 2 was permitted to furnish a personal bond with 01 surety in the sum of Rs. 25,000/- (instead of 01 surety in the sum of Rs. 1,00,000/-).
The petitioners are both Nigerian nationals and allegedly entered India on visas, which have run-out a long time ago and the petitioners have overstayed the term of their visas and are therefore presently illegal residents in India. The Foreigners Regional Registration Office (FRRO) reported that petitioner 1 overstayed in India after his visa expired in 2011, and allegedly used forged visa and passport details, leading to a Look-Out Circular being issued against him. Similarly, Petitioner 2 was granted bail on 26-09-2023, seeking a reduction of his personal bond from Rs. 1,00,000 to Rs. 25,000 and the option to deposit cash instead of furnishing a surety. The FRRO also confirmed that petitioner 2 has overstayed in India for about 12 years after his visa expired in 2012.
The question for considerations are as follows:
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Whether it is permissible for a Court to completely dispense with the requirement that an undertrial/convict must furnish a ‘surety bond’, that is to say a bond signed by a third person, who would be willing to assure the court that the undertrial/convict would remain available for proceedings before the court in a criminal matter?
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Whether it is permissible for a Court to substitute the requirement of furnishing a surety bond with deposit of cash in lieu of surety, without any person signing a bond of assurance that an undertrial/convict would remain available for proceedings before the court in a criminal matter?
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If the answer to query (a) and (b) above is in the affirmative, should the waiver of furnishing surety or substitution of surety with a cash deposit, be granted by a court for the asking, or should such waiver or substitution be guarded, keeping in view the fundamentals for grant of bail or suspension of sentence; and furthermore, should the court be even more cautious in granting waiver or substitution to an undertrial/convict who is a ‘foreign national’ and who has either entered India illegally or has continued to stay in India without a valid visa/residence permit, during the pendency of a criminal trial or a criminal appeal ?
The Court noted that in India, it is now an established legal position that once a prisoner is granted bail, they should not be deprived of this right simply for reasons of poverty or their inability to meet any conditions imposed at the time of granting bail. Additionally, it is also an accepted practice that if a prisoner cannot produce surety – namely, a person who would execute a surety bond assuring that the prisoner would be available at the trial or to undergo sentence – this requirement can be replaced with a cash deposit or furnishing of other valuable security instead.
The Court stated that the condition of furnishing surety is not purposeless; and it stems from the fundamental principle of bail, namely of releasing a prisoner from the Court’s custody to that of the surety, whose primary role is to ensure the prisoner’s presence for the trial or for undergoing sentence. Thus, the waiver of this requirement cannot be a matter of entitlement to be granted for the asking. However, in the interests of individual liberty, the law allows that if a person cannot find a surety due to financial constraints or lack of local contacts (for example, if they are outsiders to the city), they should not be denied the benefit of bail merely because they cannot meet a condition that is beyond their control.
The Court remarked “The situation becomes more complex when the prisoner is a foreign national. Generally, foreign nationals who run afoul of the law in India may be categorized into three groups. The first group includes those who enter India with a valid passport and valid visa but get embroiled in a criminal case during their stay. The second group consists of those who enter India with a valid passport and a valid visa but whose passport or visa expires while they are embroiled in a criminal trial or are serving a sentence. The third group involves individuals who enter India without a valid passport or visa, commit a crime, and continue to remain in the country, either as undertrials or as convicts.”
The Supreme Court of India has underscored that there should be no discriminatory treatment between Indian nationals and foreign nationals in relation to criminal offences under Indian law. This principle was highlighted in the context of bail for foreign nationals accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). In addressing this issue, the Court laid down specific conditions for granting bail to foreign nationals, linking these criteria to the severity of the offence and corresponding penalties. A notable requirement for foreign nationals to secure bail includes furnishing two sureties to the satisfaction of the court concerned. This decision was made in light of the significant delays in the prosecution of NDPS cases, particularly in Maharashtra, where a lack of sufficient Special Judges led to prolonged trials for foreign undertrials. The Supreme Court further clarified that while the directives issued in Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 applied to delayed trials, they were not intended to override the provisions under Section 37 of the NDPS Act regarding bail. The recent Frank Vitus v. Narcotics Control Bureau, 2024 SCC OnLine SC 1657, also affirmed that bail conditions should not be arbitrary and must balance the accused’s liberty with the State’s interest in preventing flight risk and ensuring trial attendance.
The Court observed that in determining bail conditions, a three-fold test is required: the conditions must ensure the accused’s availability for trial, maintain the integrity of the judicial process, and not be impossible for the accused to fulfill. The Courts are allowed to waive the requirement for surety only under exceptional circumstances, such as when the accused faces genuine financial hardship. However, the Court noted that waivers for foreign nationals must be even more guarded due to the higher risk of flight.
The Court concluded that in the present case, the petitioners being Nigerian nationals charged under the NDPS Act, there are no grounds to waive the surety requirement as both had overstayed their visas, and no credible evidence of financial hardship was presented. The Court denied their requests for surety waivers, though it modified their bail conditions by reducing the surety amounts to make them more achievable while ensuring their appearance at trial. The Court also stressed that the requirement for a surety bond is fundamental to maintaining judicial process integrity, and substitution with a cash deposit would not serve the intended purpose.
[Obi Ogochukwa v. State NCT of Delhi, 2024 SCC OnLine Del 7257, decided on 18-10-2024]
Advocates who appeared in this case:
Ms. Rebecca John, Senior Advocate (Amicus Curiae) with Mr. Chinmay Kanojia, Mr. Pravir Singh, Ms. Anushka Baruah, Ms. Ajunee Singh and Mr. Nilanjan Dey, Advocates. Mr. Lakshay Yadav, Ms. Kirti Chauhan, Mr. Deepanshu Goswami, Mr. Rohit Sehrawat and Mr. Akshay, Advocates for petitioner
Mr. Amol Sinha, ASC (Crl.) with Mr. Kshitiz Garg, Advocates and SI Rajender Meena, P.S.: Anti-Narcotics Squad, West Distt. Inspector Satish Kumar, FRRO. Mr. Amit Tiwari, CGSC with Mr. Priyanshu, Mr. Chetanya Puri, Advocate for UOI and Insp. Shashank Legal Cell, FRRO.
