Merely Being Foreigner Not A Ground To Divest Him Of His Personal Liberty: Himachal Pradesh High Court Grants Bail To NDPS Accused
The Himachal Pradesh High Court said that it cannot make a distinction for granting or denying bail, merely on the ground of accused being a citizen or non-citizen.
Justice Ranjan Sharma, Himachal Pradesh High Court
While granting bail to an accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Himachal Pradesh High Court held that merely being a foreigner cannot be a ground to divest him of his personal liberty.
The accused filed a Petition before the Court, seeking regular bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), originating from an FIR under Sections 21 and 29 of the NDPS Act and Section 14 of the Foreigners Act, 1946.
A Single Bench of Justice Ranjan Sharma observed, “Admittedly, bail petitioner is a foreigner. Merely being a foreigner cannot be a ground to divest him of his personal liberty. … It is averred that passport of the petitioner is also not a Nigerian Passport. However, the affidavit of Superintendent of Police indicates that no criminal history was found against the bail petitioner.”
The Bench said that though the accusation is a matter to be tested, examined and proved during the trial in accordance with law, yet based on the material on record and in facts of the case, it cannot make a distinction for granting or denying bail, merely on the ground of being a citizen or non-citizen coupled with the fact that the authenticity of the Passport submitted to the police is a matter of trial under the Foreigners Act.
Advocate Yuyutsu Singh Thakur appeared for the Petitioner while Additional Advocate General (AAG) Pranay Pratap Singh appeared for the Respondents.
Case Background
The Bail Petitioner-accused was in custody since February 2024. An FIR was registered by the police with the averments that on receipt of secret information, two persons were found to be in possession of the contraband i.e. Chitta/Heroin, weighing 39.70 grams and 9.33 grams respectively. After their arrest, the police started investigation and interrogated another person who was also then arrested. During joint investigation, these accused named the Petitioner and based on confessional-disclosure statement of other accused, the police identified him. The Petitioner handed over his mobile phone and thereafter, he was also arrested. It was alleged that though the Petitioner was apprehended by the police on February 28, 2024 but the formal arrest and the arrest memo was shown by the police on February 29, 2024.
It was averred that the Petitioner was produced before the Magistrate on March 1, 2024, which was beyond the duration of 24 hours and hence, his arrest was not in accordance with law. It was further alleged that at the time of arrest, police authorities did not resort to the compliance of Article 22 of the Constitution by not furnishing the grounds of arrest to the Petitioner. It was also asserted that the Petitioner is ready and willing to submit his original passport with the Trial Court concerned and shall not leave the jurisdiction of the High Court or Special Court as the case may be ordered in facts of the case. In this background, the Petitioner prayed for his release on bail, despite being a foreign citizen, in accordance with law in the interests of justice.
Reasoning
The High Court in the above context of the case, noted, “Depriving the petitioner of the concession of bail shall negate the established principle that ‘bail is a rule and jail is an exception’, as outlined by the Hon’ble Supreme Court, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No.8781 of 2024.”
The Court remarked that even the State Authorities, have failed to ensure speedy trial and still considerable time is likely to be taken for conclusion of trial, and therefore, the claim of the Petitioner for bail carries weight.
“The status report does not indicate any past criminal antecedents and, therefore, in view of these facts, the present accusation which is yet to be tested, examined and proved during the trial, cannot be made the basis for prolonging the incarceration of the bail petitioner in facts of instant case”, it further said.
The Court was of the view that the guilt of the Petitioner cannot be presumed at this stage and solely made the basis for prolonging the incarceration and that the fact that after the expiry of Visa, the Petitioner cannot be permitted to roam around freely in the country [India], can be addressed and taken care of.
“Taking into account the entirety of the facts and circumstances, the contention of Learned counsel for the petitioner assailing his arrest and claiming it to be illegal, in considered view of this Court is not tenable, as the petitioner being a foreign national after expiry of Visa has been over staying in India since 27.07.2023 resulting in accusation under Section 14 of the Act”, it also observed.
The Court held that the plea of the Petitioner for bail carries weight, for the following reasons –
• Prosecution story appears to be highly doubtful and improbable.
• Petitioner is in custody since February 29, 2024 and is undergoing incarceration for about one year and six months.
• Conclusion of trial is likely to take considerable time.
• Delay in commencement of trial is not attributable to the Petitioner.
• An accused is presumed to be innocent unless proven guilty.
• Continued detention can neither be punitive nor preventative.
• Continued detention in guise of penalizing the Petitioner by presuming guilt cannot be permitted.
• State Authorities have not placed any cogent and convincing material that after release on bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice.
• State Authorities have not placed anything on record to show that Petitioner has misused liberty granted to him earlier.
• Nothing incriminating material has been found from the exclusive possession of the Petitioner and the accusation is yet to be tested, examined and proved during the trial.
Conclusion
Furthermore, the Court said, “… in order to safeguard the interests of State vis-à-vis the right of petitioner, this Court imposes stringent condition in this order and in case of any violation of or misuse of the concession-liberty, the State Authority can seek cancellation of the concession extended to the petitioner. Denial of bail shall deprive and curtail the sacrosanct fundamental rights of personal liberty and right of speedy trial under Article 21 of the Constitution of India of the petitioner at this stage.”
The Court, therefore, concluded that the claim of the Petitioner for enlargement on bail carries weight, in peculiar fact-situation of this case.
Accordingly, the High Court allowed the Petition and granted bail to the accused on furnishing a personal bond of Rs. 75,000/- with one surety in the like amount to the satisfaction of Trial Court.
Cause Title- Tidj Mamane @ Tidy Mamane v. State of H.P. & Anr. (Neutral Citation: 2025:HHC:30402)
Appearance:
Petitioner: Advocates Yuyutsu Singh Thakur and Munish Kumar.
Respondents: AAG Pranay Pratap Singh
