Ifeanyi Frank vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Sections 21 & 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for selling 52.60 grams heroin to co-accused Wasu Dhir and also possessing 14.3 grams of heroin (Diacetylmorphine).

Based on a First Information Report (FIR), the police arrested the petitioner, on 24.9.2019, in FIR No. 73 of 2019, dated 20.9.2019, 2020, registered under Sections 21 & 29 of the NDPS Act, read with Sections 3 and 14 of the Indian Foreign Act), in Police Station Kandaghat, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

Earlier, the petitioner filed a petition under Section 439 CrPC before Special Judge-II, Solan, District Solan,HP. However, vide order dated 18.11.2019, the Court dismissed the petition filed by the petitioner and his co-accused.

I have read the status report(s) and heard counsel for the parties.

Mr. Nand Lal Thakur, Ld. Additional Advocate General, based upon instructions, stated that the Passport of the petitioner is genuine.

FACTS:

The allegations in the First Information Report and the gist of the evidence collected by the Investigator are:

(a) That on Sep. 20, 2019, at about 8.45 a.m., police party headed by SI Sanjay Kumar, Incharge SIU, Solan was patrolling for detection of crime. When the police party was on its way from Waknaghat towards the J.P. University, then at a place known as Raawali they stopped and went out of the vehicle. At 8.55 a.m. a young man who was carrying a bag was seen walking from the side of Wakanaghat. The Sub Inspector called him to know his identity but on this he turned back and started running. On this the police party apprehended him on the suspicion of carrying some items of theft. At that time the police party associated independent witnesses and in their presence inquired about the said person who revealed as Wasu Dhir. From the search of the bag which the accused was carrying police recovered heroin. Further on detection from the Drug Detection Kit it tested positive for heroin. After this the police party weighed the recovered substance on weighing machine and it measured 52.60 grams. Thereafter the police party carried other procedural formalities under the NDPS Act and the aforesaid F.I.R. came to be registered. The said person was arrested.

(b) During interrogation of accused Wasu Dhir, he revealed the name of the present petitioner Ifeanyi Frank which led to his arrest on 24.9.2019. Facts preceding to his arrest are that after the interrogation of accused Wasu Dhir, police went to Delhi and got a phone call made to the petitioner herein from accused Wasu Dhir to purchase contraband on which the petitioner reached the spot and accused Wasu Dhir recognized him. He indicated to the police that he had purchased Heroin from this person.

(c) Subsequently, the petitioner was arrested and after completing the procedural requirement brought to Himachal and sent to Judicial custody. His interrogation further led to recovery of 14.3 grams of Heroin from Delhi.

PREVIOUS CRIMINAL HISTORY

Neither the bail petition nor the status report refer to any previous criminal history of the bail petitioner. Affidavit dated 25.2.2020 filed in compliance of Court order dated 19.2.2020 is also to the effect that the petitioner is not having any criminal history.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations are false and concocted.

On the contrary, Mr. Nand Lal Thakur, Ld. Advocate General, contends that the investigating officer has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to stringent conditions.

ANALYSIS AND REASONING:

Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under a Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.

While dealing with the bail applications of foreign nationals, the most significant challenge the Courts face is to secure their presence. Code of Criminal Procedure, 1973, (CrPC), has classified two types of offenses, bailable and non-bailable. Section 2(a) of the CrPC defines bailable offenses shown as the offences listed as 'bailable' in the First Schedule of CrPC or any other law. All the left-out crimes are deemed to be Non-bailable. In bailable offences, a Police officer is under an obligation to release the accused on bail, subject to them furnishing bail bonds. It means that even a foreign national cannot be denied bail in a bailable offence. Therefore, the question of securing their presence is not an absolute condition. However, in heinous and bone-chilling crimes, all which certainly are non-bailable, the presence of the accused must be ensured by the Courts, before granting the bail. Thus, while dealing with bail petitions of accused who are not the citizens of India, one of the most important parameters to keep in mind is the gravity of the offense.

Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.

In the present case, the quantity of substance seized is less than the commercial quantity. Therefore, the bail application stands on different parameters and is similar to bail petitions under regular statutes.

JUDICIAL PRECEDENTS:

In Lachhman Dass v. Resham Chand Kaler, (2018) 3 SCC 187, Supreme Court holds,

"10. ...The law under section 439 Cr.P.C is very clear and in the eye of the law every accused is the same irrespective of their nationality."

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, a Constitutional bench of Supreme Court holds in Para 30, as follows,

"It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail"

In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court holds:

" "Bail or jail ?" - at the pre-trial or post-conviction stage - belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Article 21 are the life of that human right.

The doctrine of Police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution."

...The delicate light of the law favours release unless countered by the negative criteria necessitating that course."

In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three-member bench of Supreme Court holds,

"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non -bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so."

Given the above reasoning, and keeping in view the quantity of contraband, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:

a) As per the FIR, the substance involved is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances. The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.

b) The petitioner is in judicial custody since 24.9.2019.

c) The investigation is complete and the report under section 173(2) CrPC stands filed.

d) The petitioner is a Nigerian National, holding a Passport of Nigeria bearing Passport No. AO5357750. The State has already verified from the concerned Embassy about the genuineness of the Passport.

As a result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing a personal bond in the sum of INR 1,55,000/, (INR One hundred and fifty-five thousand only), to the satisfaction of the trial Court, by depositing it in the official account, as per the details and directions of the trial Court. The petitioner shall also furnish one surety in the sum of INR 5000 (INR Five thousand only), to the satisfaction of the trial Court. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:

a) The petitioner shall give details of Passport Number, Visa number, phone number(s) (if available), WhatsApp number (if available), e-mail (if available), personal bank account(s) (if available), on the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents.

b) The Petitioner shall not leave India without the prior written approval of the Trial Court.

c) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the Passport number with details, email of the petitioner, and WhatsApp number, if any.

d) The petitioner shall not influence, threaten, browbeat, or pressurize the complainant, witnesses, and the Police official(s).

e) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

f) Once the trial begins, the appellant shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

g) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

h) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail.

i) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail.

j) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non -Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.

k) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

l) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.

m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within 10 days from such modification, to the police station of this FIR, and also to the concerned Court.

n) The petitioner shall deposit his passport, if not already seized by the Police.

o) The petitioner shall, within ten days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the "ON" mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned SHO/I.O.

p) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for the State to apply for cancellation of this bail order.

q) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner, and even the concerned Court shall be competent to cancel the bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

r) The learned counsel for the petitioner, as well as the attesting officer, shall explain the conditions of this bail to the petitioner.

I have arrived at the amount mentioned above of bond money by converting the annual per capita income of Nigeria, and after converting it in INR and rounding it upwards. As per https://data.worldbank.org/, the per capita GDP of Nigeria is 2028 USD, per annum. As per https://www1.oanda.com/currency/converter/, 1 USD equals roughly INR

Thus, the bail amount of personal bonds comes by multiplying it with rate of rupee to USD. This Court makes it clear that these are not guidelines to arrive at the bonds and its value.

The logic behind furnishing personal bonds with bank deposits is that we know that Africans hardly have any relatives in India. Even their friends are just acquaintances, and it would be impossible for them to produce the bail petitioner before Court, even if they stand as sureties. When foreign nationals are asked to furnish surety bonds, then the sureties retain at least 100% of the bond amount as security to take care of proceedings under Section 446 of CrPC. However, even after the trial is over, it is practically impossible for the accused to recover the money unless the surety turns out to be an honest person. Even in such a situation, what is returned is the Principal amount, without any interest. It has led to a racket of surety providers in exchange for money. Therefore, the purpose of surety bonds has become an exercise in futility, and the better option is to keep the security deposit.

On receipt of the money in the official account, the Trial Court shall issue directions to appropriate Court and all concerned, to keep this amount in an automatically renewable fixed deposit, to be opened in any bank, owned or controlled by the Centre, State or their units. In case any orders are passed under Section 446 CrPC, then the bail amount shall be dealt with as per such directions. After the completion of the Trial, and the period specified in S. 437-A, and subject to the directions of the Appellate Courts, if any, all this money, along with interest, except taxes, shall be refunded to the petitioner, by transferring in his bank account, whether in India or outside, following the law.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be; such Court shall also be competent to modify or delete any condition.

The officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in English.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on her/his furnishing bail bonds in the terms described above.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.

Although the Court has granted bail in favor of accused, still neither the issue comes to an end, nor do the terms of justice. In the interest of equity and fair play, the matter needs further consideration. Given the following reasoning, this Court is requesting the Trial Court to expedite the trial.

Every visitor to our country comes for a specific purpose and for a limited time. However, if during the period of her stay, they get arraigned as an accused in a criminal case, then she gets stuck up here. It may be traumatic to her, and to her education, family, friends, business, and n number of things, which an ordinary human being cannot even imagine. The answer lies in the speedy disposal of cases of foreign nationals, whether they are in custody or on bail.

Mr. Nand Lal Thakur, Ld. Advocate General, submits that a few Foreign Nationals, while in India, deal in substance trade.

The solution to this lies not in denying bail. It lies in verifying the antecedents of these types of suspects, before approving or granting Visa, and once accused in substance abuse, then revoking the Visa. Synergy of law with technology is the next big thing.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same.

In return for the freedom curtailed by the State for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior.

While deciding the propositions of law involved in this matter, I have considered all the similar orders/judgments pronounced by me. Thus, this order is more comprehensive and up to date. Consequently, given above, all previous judgments/orders passed by me, where the proposition of law was similar, or somewhat similar, be not cited as precedents.

The petition stands allowed in accordance with the terms mentioned above.