Court Need Not Always Impose Bail Condition Requiring Foreign Accused To Obtain Embassy's Assurance On Not Leaving India: Supreme Court

The Supreme Court clarified today that courts need not impose a bail condition requiring a foreign accused to obtain assurance from his country's Embassy/High Commission that he will not leave India and would appear before the court as required.

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan allowed an appeal by a Nigerian national challenging such a condition imposed on him.

“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”, the court held.

The appellant was arrested on May 21, 2014, for offenses under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). On May 31, 2022, a Special NDPS Court granted him bail, subject to various terms and conditions, which were upheld by the Delhi HC. These conditions included furnishing a bail bond of Rs. 1,00,000 with two sureties of the same amount.

Additionally, the special court imposed a condition that the High Commission of Nigeria must provide a certificate of assurance that the appellant would not leave India and would appear before the court as required.

The appellant challenged the condition of requiring a certificate of assurance from the Nigerian High Commission. The Delhi HC upheld this condition citing Supreme Court judgment in Supreme Court Legal Aid Committee v. Union Of India (1994).

He also challenged another condition requiring him to drop a pin on Google Maps to ensure his location was always available to the investigating officer.

The court noted that under Section 37 of the NDPS Act, granting bail is subject to the satisfaction that there are reasonable grounds for believing the accused is not guilty and is not likely to commit any offense while on bail. Once these grounds are met, bail conditions must align with Section 437(3) of the CrPC, the court stated.

Regarding the requirement for a certificate of assurance from the Nigerian High Commission, the court clarified that its previous judgment in the Supreme Court Legal Aid Committee case had directed imposition of this condition for pending cases of the accused who were in jail on the date of the judgment. The court noted that it was to be imposed while releasing foreigners languishing in jail due to delayed trials as a one-time measure.

The court said that if the concerned Embassy or High Commission does not provide the certificate within a reasonable time, say seven days, the court has the discretion to waive this condition. The court recognized that obtaining such a certificate is beyond the control of the accused.

“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”, the court added.

If the Embassy provides reasons for denial based on adverse conduct, the court can consider these reasons while deciding the application to dispense with the bail condition, the court observed.

The court added that there can be many reasons for recording adversely which cannot be the basis to deny bail already granted. In such a case, condition of surrendering passport and regularly report to the local police or Trial Court can be imposed, depending on the case facts, the court stated.

Regarding the condition of dropping a PIN on Google Maps, the court opined that such a condition would violate the appellant's right to privacy under Article 21 of the Constitution.

Therefore, the court deleted these two conditions from the appellant's bail order.

Case no. – SLP (Crl) No. 63396340 of 2023

Case Title – Frank Vitus v. Narcotics Control Bureau & Ors.

Citation : 2024 LiveLaw (SC) 441