The Supreme Court held that imposing bail condition which enables the Police or Investigation Agency to track every movement of the accused violates Right to Privacy under Article 21 of the Constitution.

The Court said that the bail condition of dropping a PIN on Google Maps cannot be imposed.

The court held thus in a criminal appeal preferred by the accused against Narcotics Control Bureau (NCB).

The two-Judge Bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, “Imposing any bail condition which enables the Police/Investigation Agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21. In this case, the condition of dropping a PIN on Google Maps has been incorporated without even considering the technical effect of dropping a PIN and the relevance of the said condition as a condition of bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly.”

The Bench added that in some cases, it may have imposed a similar condition but in those cases, the Court was not called upon to decide the issue of the effect and legality of such a condition.

Senior Advocate Vinay Navare was appointed as the Amicus Curiae, AOR Varun Mishra appeared for the appellant while Additional Solicitor General Vikramjeet Banerjee appeared for the respondents.

In this case, the appellant was prosecuted for the offences punishable under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was arrested in 2014 and in 2022, he was ordered to be enlarged on bail subject to various terms and conditions incorporated in the order. The terms and conditions incorporated were in terms of the directions issued by the Apex Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors. (1994) 6 SCC 731.

The appellant was ordered to be enlarged on bail on furnishing a bail bond of Rs. 1,00,000/- with two sureties in the like amount to the satisfaction of the Special Judge under NDPS. However, he was aggrieved by the bail conditions imposed upon him regarding insisting on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-accused belongs and dropping a PIN on the google map to ensure that the location is available to the Investigation Officer of the case. Hence, he approached the Supreme Court challenging the same.

The Apex Court after hearing the contentions of the counsel noted, “In paragraph 10 of the affidavit, Google LLC stated that the user has full control over sharing PINs with other users. Moreover, it does not impinge on the user’s privacy, as the user retains full control. Most importantly, it is stated that the PIN location does not enable real time tracking of the user or the user’s device. Therefore, the condition of the accused dropping a pin on Google Maps, as it stands, is completely redundant as the same does not help the first respondent.”

The Court said that the directions contained in its decision were to operate as onetime directions applicable only to the pending cases of the accused who were in jail on the date of the judgment and these conditions were required to be incorporated in the order while releasing an accused on bail as a onetime measure.

“Paragraph 16 clarifies that if a bail application is made to the Special Court with a grievance regarding inordinate delay in the disposal of pending cases, the Special Court will be empowered to exercise power to grant bail in light of what is held in paragraph 15. Therefore, it is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a ‘certificate of assurance’ from the Embassy/High Commission should be incorporated. It will depend on the facts of each case”, it added.

The Court further remarked that even if such a condition is incorporated, on an application made by the accused, the concerned Embassy/High Commission declines or fails to issue the certificate within a reasonable time, say within a period of seven days, the Court always has the power to dispense with the said condition.

“Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence, the Court will have to delete the condition”, it enunciated.

The Court also emphasised that the courts must remember that the accused has no right to compel the Embassy/High Commission to issue such a certificate and therefore, the condition of surrendering the passport and regularly reporting to the local police station/Trial Court can always be imposed, depending upon the facts of each case.

“Therefore, in view of the above discussion, we are of the view that it is not necessary to refer the case to a larger Bench for reconsideration of condition No. (iv) in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committee”, it concluded.

Accordingly, the Supreme Court directed the impugned bail conditions to be deleted and listed the case on July 15, 2024 for passing final orders.

Cause Title- Frank Vitus v. Narcotics Control Bureau & Ors. (Neutral Citation: 2024 INSC 479)


Appellant: AOR Varun Mishra

Respondents: Additional Solicitor General Vikramjeet Banerjee, AORs Arvind Kumar Sharma, Gurmeet Singh Makker, Raj Bahadur Yadav, Advocates Anuj Berry, Anusha Ramesh, Aparajito Sen, and AOR Lzafeer Ahmad B. F.

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