Why Are Some Foreign Prisoners In Jail Even Months After Getting Bail In NDPS Cases? Explained

Considering the delay in the trial of a large number of cases under Narcotic Drugs and Psychotropic Substances (NDPS) Act, particularly against foreign nationals, the Supreme Court in October 1994 laid down guidelines for release of the accused who have remained in prison beyond a reasonable time.

"After the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters," said the apex court in the ruling.

In respect of the foreigners, it laid a specific condition that besides impounding their passports, the Special Judges shall also insist on a certificate of assurance from the Embassy or High Commission of the country to which the foreigner-accused belongs, “that the said accused shall not leave the country and shall appear before the Special Court as and when required”.

The judgement in Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union Of India And Ors is usually cited by lawyers to seek bail for the accused who have remained in prison for years with no end in sight for the trials.

Many benches of the Delhi High Court have applied the principles laid down by the Supreme Court and granted bail to accused who have been in custody for a long period, notwithstanding the quantity of drugs seized from them.

However, the question whether the condition on certificate of assurance is mandatory has come up repeatedly before the high court in recent months in adjudication of the bail applications moved by foreign nationals. Nigeria’s communication to Ministry of External Affairs on the issue that it cannot monitor or track the movement of its nationals in India, has further compounded the problem for the accused hailing from the country. Many Nigerians are languishing in jails despite getting bail orders from the court.

Accused In Jail Despite Bail

On June 13 last year, the High Court granted bail to a Nigerian national Ejike Jonas Orji in a drugs case. He was in custody for more than eight years when the bail order was passed. Since the bail was granted on the basis of the SCLAC judgement, the Special Court was directed to “seek a certificate of assurance from the High Commission of Nigeria, New Delhi, that the accused shall not leave the country till the trial is concluded, and shall appear before the Special Court on each and every date, unless exempted by the Special Court in exceptional circumstances.”

It was specifically directed that the applicant will not be released on bail in the absence of such a certificate of assurance. On Tuesday, the court was told that Orji is still in custody. His counsel sought modification of the order, arguing that the condition has effectively rendered the grant of bail to the applicant futile. It was argued that bail conditions must be reasonable and capable of compliance.

Court Says Condition Is Mandatory

Dismissing Orji’s application, Justice Prateek Jalan said the condition imposed by Supreme Court in the SCLAC judgement does not “admit of any ambiguity”.

“The Supreme Court, while balancing the constitutional rights of undertrial prisoners with the statutory provisions, has laid down that, in the case of foreign nationals, the Special Judge shall, besides impounding their passports, “insist on” a certificate of assurance from the Embassy or the High Commission of the country to which the foreigner accused belongs. The directions of the Supreme Court being mandatory, this Court cannot permit a departure therefrom,” said the court.

On the argument that a court has the discretion in imposing conditions for grant of bail, Justice Jalan said that where bail has been granted primarily relying upon the judgement of the Supreme Court, “it would not be an appropriate exercise of jurisdiction of this Court to modify the condition imposed in terms of the express mandate of the Supreme Court.”

Condition Relaxed Previously

However, the condition on issuance of the assurance certificate by the foreign embassy has been relaxed in certain cases by the court.

Last month, Felix Dallo, who is an accused in an NDPS case, sought modification of the bail condition in his bail order. In the bail order passed in December 2022, the accused had been asked by the Special Court to get the certificate from the High Commission Of Ivory Coast.

On February 07, Justice Amit Sharma said the condition as recorded in the Supreme Court is with respect to an undertrial accused charged for an offence punishable with a minimum imprisonment of 10 years and minimum fine of a minimum of ₹1 lakh.

“In the present case, admittedly, the petitioner is facing trial with respect to offence under Section 21(b) of the NDPS Act, in which the maximum imprisonment provided for is 10 years and maximum fine provided for is Rs. 1,00,000/-. In these circumstances, the aforesaid direction is not mandatory,” said the court, while granting exemption to Dallo.

On February 08, Justice Anup Jairam Bhambhani relaxed the condition in the case of Bethlehem alias Nunu, who was granted interim bail on medical grounds last year. The reason she could not get the assurance certificate was that Myanmar refused to confirm her nationality.

The court said if it embarks upon an exercise to ascertain the petitioner’s true nationality, the process would take inordinately long, thereby thwarting the interim bail granted to the petitioner on medical grounds, which grounds continue to subsist.

Justice Bhambhani also said that the Supreme Court in In Re Policy Strategy for Grant of Bail has said that if insistence upon a ‘local surety’ results in delay in release of the accused or convict, such surety may not to be insisted upon.

“In the opinion of this court, the imposition of a condition requiring a ‘certificate of assurance’ from an Embassy/High Commission, especially where the nationality of the individual is itself in doubt and the High Commission has not reverted with any assuring response, is equally onerous; and would be covered by the essence of the direction issued by the Supreme Court as above,” said the court.

Justice Jalan in the February 21-order said the order passed in Behtlehem’s case is distinguishable from Orji’s case.

“The said case is one wherein the accused was to be released on interim bail on medical grounds. In fact, the applicant therein had not been incarcerated for a prolonged period in terms of the judgement of the Supreme Court in SCLAC, and bail was not granted pursuant to that said judgment. Further, the origin of the applicant therein, and her perceived status as a national of Myanmar, was itself in doubt,” Justice Jalan said.

Nigeria’s Policy Decision

In May 2022, two accused were granted bail by the court with the condition Special Judge “shall ensure that the certificate of assurance from the High Commission of Nigeria is placed on record”.

On September 7 last year, the court was told there has been no response from the High Commission. The court then asked the union government to intervene and communicate with the foreign embassy. The Ministry of External Affairs issued Note Verbale to the High Commission for disposing of the request.

The Commission in a note to the MEA said that “in as much as Mission is desirous to render all possible consular assistance for Nigerians in India, however mission does not have the capacity to monitor or track the movements of any Nigerian residing in the country. Indeed, this is within the purview of our esteemed host.”

On January 30, the counsel representing Ebera Nwanaforo - who was granted bail in May 2022, submitted before the court that several hundreds of under-trial persons of foreign nationality would have been admitted to bail in NDPS cases since 1994, when the direction came to be passed by the apex court but it is now being cited against the petitioner to prevent his release on bail.

Justice Bhambhani will consider the matter again on March 20.