"… (When a Foreign National gets) 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", the Himachal Pradesh High Court observed recently in a case involving Two Nigerian Nationals. (emphasis supplied)
The Bench of Justice Anoop Chitkara was hearing the bail plea of two Nigerian Nationals, arraigned as an accused in FIR No. 115 of 2019, dated 2.09.2019, registered under Sections 21 & 29 of the NDPS Act, Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946, Sections 420, 468, 471 IPC [for selling 13.95 grams of heroin (Diacetylmorphine)]
It may be noted that the Court heard two different bail pleas (Cr. MP (M) No. 39 of 2020 and Cr. MP (M) No. 40 of 2020). The facts of the case and the reasoning given by the Court are identical in nature. (both orders attached below).
Briefly, the allegations against the petitioners were that the police had arrested one Naresh Kumar for possessing 13.95 grams of heroin (Diacetylmorphine). After his arrest, when the police conducted the investigation, he revealed to the police that he had purchased this substance from two people, who belong to Nigeria, namely Innocent Oluchukwo and Stephen Chidubem. After that, the police arrested both the present petitioner for abetting the said offence.
The Court was of the view that the quantity of drug involved in this case is less than Commercial Quantity but greater than Small Quantity.
As such, the Court noted, the rigours 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.
The Court took into account the fact that the petitioner was in judicial custody since 5.9.2019 and that the investigation is complete and the report under section 173(2) CrPC stands filed.
The Court further observed,
"The quantity of the substance involved in this case does not restrict bail. The incarceration of the accused during the period of trial is neither warranted, nor justified, or going to achieve any significant purpose. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose."
Court's Significant Observation
Although the Court granted bail in favour of accused, still, the Court noted that 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, the Court requested the Trial Court to expedite the trial.
Further, when the Additional Advocate General submitted before the court that a few Foreign Nationals, while in India, deal in substance trade, the Court Observed,
"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. The synergy of law with technology is the next big thing" (emphasis supplied)
Significant Bail Conditions
The Court Ordered that the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One Lac, and shall either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for Rs. One Lac, made in favour of Chief Judicial Magistrate, Solan, District Solan, H.P.,.
Further, within thirty days of his release from prison, the petitioner has been directed to 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
Click Here To Download Order