Supreme Court Finds Fault With View That Accused Can Be Denied Bail Merely On Account Of Being A Foreigner

While hearing the bail plea of a foreign national denied bail by the Himachal Pradesh High Court, the Supreme Court yesterday expressed reservations about the view that bail can be denied to an accused merely because he is a foreign national.

A bench of Justices Sanjiv Khanna, Sanjay Kumar and R Mahadevan refused to interfere with the impugned judgment, however faulted the reasoning of the High Court.

"We have some reservations on the observations made by the High Court on grant of bail to non-citizens. However, otherwise we are not inclined to interfere with the impugned order. Hence, the special leave petition is dismissed. We request the trial Court to take up the chargesheet for hearing and trial expeditiously. In case there is delay in trial for reasons not attributable to the petitioner, it will be open to the petitioner to file a fresh application for bail. Fresh application for bail can be also filed in case of change of circumstances", dictated Justice Khanna.

The genesis of the case lay in the recovery of heroin from one Shivam based on secret information received by police officials at Solan, Himachal Pradesh. Upon enquiry, accused-Shivam revealed the name of one Saurav, who in turn stated that he bought the contraband from petitioner-Onyeka Samuel.

As per allegations, 15.95 grams of heroin from was recovered from the petitioner. As he could not produce a visa or passport, he was booked under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances (NDPS) Act and Section 14 of the Foreigners Act.

Seeking bail, the petitioner moved the Himachal Pradesh High Court, but this application was dismissed. Later, when the chargesheet came to be filed, he moved the High Court again.

His case was that: (i) chargesheet had been filed, (ii) the contraband was less than commercial quantity, and thus, rigors of Section 37 NDPS Act did not apply, (iii) though he could not produce his visa and passport before the investigating agency, he had a valid passport and would apply for visa in the event of release on bail, and (iv) co-accused had been granted bail and a non-citizen could not be discriminated against.

The High Court however denied the relief of bail. Besides observing that an earlier bail application preferred by the petitioner had been dismissed and there was no change in circumstance, the court noted,

"...the petitioner has been charged with the commission of an offence punishable under Section 14 of the Foreigner's Act, which will distinguish his case from the case of other co-accused as no other co-accused has been charged with such an offence; hence no reliance can be placed on the principle of parity. It was submitted that non-citizen cannot be discriminated on the grounds of non-citizenship alone. This submission is stated to be rejected because the Foreigner's Act will only apply to non-citizens and not to citizens; therefore, the discrimination is inherent in the nature of the offence itself".

In taking the view, the High Court was guided by its decision in Imtizor Imamova v. State of H.P. where it was held that a foreigner can enter only with a visa, which is kind of a limited leave. Once, the visa expires, the person has no right to remain on Indian soil and if he remains so, he commits an offence. Therefore, bail cannot be granted to a foreigner accused of committing an offence punishable under Section 14 of the Foreigners Act.

Case Title: ONYEKA SAMUEL Versus STATE OF HIMACHAL PRADESH, Diary No. 26692-2024