Full Judgment Text
2024 INSC 479
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(Arising out of S.L.P. (Crl.) No. 63396340 of 2023)
Frank Vitus … Appellant
versus
Narcotics Control Bureau & Ors. ... Respondents
O R D E R
ABHAY S. OKA, J.
1. Leave granted.
FACTUAL ASPECTS
2. The appellant is being prosecuted for the offences
punishable under Sections 8, 22, 23, and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (short ‘NDPS
st
Act’). The appellant was arrested on 21 May 2014. By the
st
first impugned order dated 31 May 2022, the appellant was
ordered to be enlarged on bail subject to various terms and
Signature Not Verified
conditions incorporated in the said order. The terms and
Digitally signed by
Anita Malhotra
Date: 2024.07.08
18:10:01 IST
Reason:
conditions incorporated were in terms of the directions issued
by this Court in paragraph no.15 of its decision in the case of
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 1 of 25
Supreme Court Legal Aid Committee Representing
1
Undertrial Prisoners v. Union of India & Ors. . The
appellant was ordered to be enlarged on bail on his furnishing
a bail bond in the sum of Rs.1,00,000/ with two sureties in
the like amount to the satisfaction of the learned Special
Judge under the NDPS.
The grievances in this appeal have been summed up in
3.
st
the order dated 21 July 2023 passed by this Court, which
reads thus:
“ The petitioner is aggrieved by the
following condition imposed while
granting bail:
“.. the learned Special Judge, NDPS
seized of the trial in SC No.27/14
shall ensure that the certificate of
assurance from the High
Commission of Nigeria is placed on
record that the applicants/accused
shall not leave the country and shall
appear before the learned Special
Judge as and when required, in as
much as, the complaint filed by the
Narcotics Control Bureau under
Sections 8/22/23/29 of the NDPS
Act, 1985 indicates that the
appellants are residents of Nigeria..”
In the case of Supreme Court Legal
[
Aid Committee vs. vs Union Of India
(1994) 6 SCC 731] Clause (iv) reads as
under:
1 (1994) 6 SCC 731
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 2 of 25
“(iv)in the case of undertrial accused
who are foreigners, the Special
Judge shall, besides impounding
their passports, insist on a
certificate of assurance from the
Embassy/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;”
Prima facie, we are of the view that
none of the Embassies/High
Commissions may be able to give
assurances as mentioned in Clause (iv).
The question is whether we need to
refer this case to a larger Bench for re
consideration of Clause (iv).
Another condition imposed by the High
Court reads thus:
“… they shall drop a PIN on the
google map to ensure that their
location is available to the
Investigation Officer of the case;...”
The question is whether this condition
will offend rights of the accused under
Article 21 of the Constitution of India.
We request Mr. Vinay Navare, learned
Senior Advocate to assist us as amicus
curiae on both the issues. Registry to
provide a complete set of paper book to
the learned Senior Counsel as well as a
copy of this order.
List on 14.08.2023.”
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3.1 . We have heard Shri Vinay Navare, the learned senior
counsel appointed as Amicus Curiae, Shri Varun Mishra, the
learned counsel appearing for the appellant and Shri
Vikramjeet Banerjee, the learned Additional Solicitor General
of India for the first respondentNarcotics Control Bureau.
CONDITIONS OF BAIL
4. Section 439 of the Code of Criminal Procedure,1973 (for
short, ‘the CrPC’) deals with the power of a Court of Sessions
or a High Court to grant bail in nonbailable offences. We are
reproducing Section 439 for ready reference:
“439. Special powers of High Court or
Court of Session regarding bail .—(1) A
High Court or Court of Session may direct
—
(a) that any person accused of an
offence and in custody be released on
bail, and if the offence is of the nature
specified in subsection (3) of Section
437, may impose any condition which
it considers necessary for the purposes
mentioned in that subsection;
(b) that any condition imposed by a
Magistrate when releasing any person on
bail be set aside or modified:
Provided that the High Court or the Court
of Session shall, before granting bail to a
person who is accused of an offence which
is triable exclusively by the Court of
Session or which, though not so triable, is
punishable with imprisonment for life,
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 4 of 25
give notice of the application for bail to the
Public Prosecutor unless it is, for reasons
to be recorded in writing, of opinion that it
is not practicable to give such notice:
[Provided further that the High Court or
the Court of Session shall, before granting
bail to a person who is accused of an
offence triable under subsection (3) of
Section 376 or Section 376AB or Section
376DA or Section 376DB of the Indian
Penal Code (45 of 1860), give notice of the
application for bail to the Public
Prosecutor within a period of fifteen days
from the date of receipt of the notice of
such application.]
[(1A) The presence of the informant or
any person authorised by him shall be
obligatory at the time of hearing of the
application for bail to the person under
subsection (3) of Section 376 or Section
376AB or Section 376DA or Section 376
DB of the Indian Penal Code (45 of 1860)].
(2) A High Court or Court of Session may
direct that any person who has been
released on bail under this Chapter be
arrested and commit him to custody. ”
Section 437(3) reads thus:
“ 437. When bail may be taken in case of
—
nonbailable offence.
(1) …………………………………………………
(2)…………………………………………………
(3) When a person accused or suspected
of the commission of an offence
punishable with imprisonment which may
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extend to seven years or more or of an
offence under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code (45
of 1860) or abetment of, or conspiracy or
attempt to commit, any such offence, is
released on bail under subsection (1), the
[Court shall impose the conditions,—
(a) that such person shall attend in
accordance with the conditions of the
bond executed under this Chapter,
(b) that such person shall not commit
an offence similar to the offence of
which he is accused, or suspected, of
the commission of which he is
suspected, and
(c) that such person shall not directly
or indirectly make any inducement,
threat or promise to any person
acquainted with the facts of the case so
as to dissuade him from disclosing such
facts to the Court or to any police
officer or tamper with the evidence,
and may also impose, in the interests
of justice, such other conditions as it
considers necessary .]
(4) …………………………………………”
4.1 In this case, we are concerned with the offences under
the NDPS Act which are punishable with imprisonment of
seven years or more. The provision relating to bail is
contained in Section 37 of the NDPS Act, which reads thus:
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 6 of 25
“37. Offences to be cognizable and non
.—(1) Notwithstanding anything
bailable
contained in the Code of Criminal
Procedure, 1973 (2 of 1974),—
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence
punishable for [offences under Section 19
or Section 24 or Section 27A and also for
offences involving commercial quantity]
shall be released on bail or on his own
bond unless—
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes
the application, the court is satisfied that
there are reasonable grounds for believing
that he is not guilty of such offence and
that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail
specified in clause (b) of subsection (1)
are in addition to the limitations under
the Code of Criminal Procedure, 1973 (2
of 1974), or any other law for the time
being in force on granting of bail]”
Under Section 37 of the NDPS Act, the Court's power to grant
bail is constrained by Subsection 1(b)(ii). However, once a
case is made out for a grant of bail in accordance with Section
37, the conditions of bail will have to be in terms of Section
437(3) of the CrPC. The reason is that because of Section 52
of the NDPS Act, the provisions of the CrPC apply to the
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arrests made under the NDPS Act insofar as they are not
inconsistent with the NDPS Act.
Apart from conditions (a) to (c) in Section 437(3) of the
5.
CrPC, there is a power to impose additional conditions “in the
interest of justice”. The scope of the concept of “interest of
justice” in Section 437(3) of the CrPC has been considered by
this Court in the case of
Kunal Kumar Tiwari v. State of
2
. In paragraph 9, this Court held thus:
Bihar
“9. There is no dispute that clause (c) of
Section 437(3) allows courts to impose
such conditions in the interest of justice.
We are aware that palpably such wordings
are capable of accepting broader meaning.
But such conditions cannot be
arbitrary, fanciful or extend beyond
the ends of the provision. The phrase
“interest of justice” as used under the
clause (c) of Section 437(3) means
“good administration of justice” or
“advancing the trial process” and
inclusion of broader meaning should
be shunned because of purposive
.”
interpretation
(emphasis added)
In view of Section 438(2)(iv) of the CrPC, while granting
6.
anticipatory bail, the Court is empowered to impose the
conditions as provided in Section 437(3) of the Cr. PC. While
dealing with the condition which can be imposed while
2 (2018) 16 SCC 74
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granting anticipatory bail, this Court, in the case of Munish
3
Bhasin v. State (NCT of Delhi) , held thus:
“10. It is well settled that while
exercising discretion to release an
accused under Section 438 of the Code
neither the High Court nor the
Sessions Court would be justified in
imposing freakish conditions. There is
no manner of doubt that the court having
regard to the facts and circumstances of
the case can impose necessary, just and
efficacious conditions while enlarging an
accused on bail under Section 438 of the
Code. However, the accused cannot be
subjected to any irrelevant condition at
all.”
(emphasis added)
7. A broader meaning cannot be assigned to the words
“interest of justice” in Section 437(3) of Cr. PC. By borrowing
the language used by this Court in the above decisions, we
can say that the bail conditions cannot be fanciful, arbitrary
or freakish. The object of imposing conditions of bail is to
ensure that the accused does not interfere or obstruct the
investigation in any manner, remains available for the
investigation, does not tamper with or destroy evidence, does
not commit any offence, remains regularly present before the
Trial Court, and does not create obstacles in the expeditious
conclusion of the trial. The Courts have imposed a condition
that the accused should cooperate with the investigation
when bail is granted before filing the final report or
3 (2009) 4 SCC 45
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chargesheet. Cooperating with the investigation does not
mean that the accused must confess. The conditions
incorporated in the order granting bail must be within the
four corners of Section 437(3). The bail conditions must be
consistent with the object of imposing conditions. While
imposing bail conditions, the Constitutional rights of an
accused, who is ordered to be released on bail, can be
curtailed only to the minimum extent required. Even an
accused convicted by a competent Court and undergoing a
sentence in prison is not deprived of all his rights guaranteed
by Article 21 of the Constitution. This Court, in the case of
4
reiterated the
State of A.P. v. Challa Ramkrishna Reddy,
settled position by holding as follows:
“22. Right to life is one of the basic human
rights. It is guaranteed to every person by
Article 21 of the Constitution and not even
the State has the authority to violate that
right. A prisoner, be he a convict or
undertrial or a detenu, does not cease to
be a human being. Even when lodged in
the jail, he continues to enjoy all his
fundamental rights including the right
to life guaranteed to him under the
Constitution. On being convicted of
crime and deprived of their liberty in
accordance with the procedure
established by law, prisoners still
retain the residue of constitutional
rights. ”
(emphasis added)
4 (2000) 5 SCC 712
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7.1. We are dealing with a case of the accused whose guilt is
yet to be established. So long as he is not held guilty, the
presumption of innocence is applicable. He cannot be
deprived of all his rights guaranteed under Article 21. The
Courts must show restraint while imposing bail conditions.
Therefore, while granting bail, the Courts can curtail the
freedom of the accused only to the extent required for
imposing the bail conditions warranted by law. Bail
conditions cannot be so onerous as to frustrate the order of
bail itself. For example, the Court may impose a condition of
periodically reporting to the police station/Court or not
travelling abroad without prior permission. Where
circumstances require, the Court may impose a condition
restraining an accused from entering a particular area to
protect the prosecution witnesses or the victims. But the
Court cannot impose a condition on the accused to keep the
Police constantly informed about his movement from one
place to another. The object of the bail condition cannot be to
keep a constant vigil on the movements of the accused
enlarged on bail. The investigating agency cannot be
permitted to continuously peep into the private life of the
accused enlarged on bail, by imposing arbitrary conditions
since that will violate the right of privacy of the accused, as
guaranteed by Article 21. If a constant vigil is kept on every
movement of the accused released on bail by the use of
technology or otherwise, it will infringe the rights of the
accused guaranteed under Article 21, including the right to
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privacy. The reason is that the effect of keeping such constant
vigil on the accused by imposing drastic bail conditions will
amount to keeping the accused in some kind of confinement
even after he is released on bail. Such a condition cannot be a
condition of bail.
8. In view of subsection (2) of Section 441 of the CrPC, the
conditions imposed by the Court while granting bail always
stand incorporated in the bail bond executed by the accused.
Therefore, the accused is bound by the conditions imposed
while granting bail. If the accused, after being enlarged on
bail, commits a breach of bail conditions or commits any
offence, the Courts always have the power to cancel the bail.
A condition cannot be imposed while granting bail
9.
which is impossible for the accused to comply with. If such a
condition is imposed, it will deprive an accused of bail,
though he is otherwise entitled to it.
CONDITION OF DROPPING PIN ON GOOGLE MAP
10. Firstly, we will deal with the issue of the condition of
dropping a PIN on Google Maps. The condition imposed on the
appellant of dropping a PIN on Google Map gives an
impression that the condition will enable the first respondent
Narcotics Control Bureau (NCB) to monitor the movements of
the accused on a realtime basis, which will be violative of the
right to privacy guaranteed under Article 21 of the
Constitution of India. To understand the technical aspects of
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“dropping a PIN on Google Map”, we issued a notice to Google
LLC, having its office in the USA. Accordingly, Shri R. Suresh
Babu, authorised signatory of Google LLC, has filed an
affidavit. Paragraphs 5 to 10 of his affidavit read thus:
“ 5. Google Maps is a web and app
based service that enables users to search
for and navigate to local places. It inter
alia offers realtime traffic conditions, and
route planning for travelling by foot, car,
bike, air, and public transportation.
Google Maps can be accessed through the
Google Maps application available on
mobiles or through a web browser at
www.google.com/maps .
6. One of the features available to
users on Google Maps is the ability of
users to drop a ‘PIN’ on a location of
their choosing on the map. Dropping a
PIN, allows the user to mark or identify
a location on the map without
necessarily requiring access to the
Users may drop a
user’s location data.
PIN either on the mobile application or on
the web browser. To drop a PIN, a user
may either:
a. press and hold the desired
location where the PIN is to be
dropped on the map on the mobile
application; or
b. click on the desired location on
the map on a web browser.
7. Upon dropping the PIN, the user
dropping the PIN can identify the specific
coordinates of the location on the map.
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Through the Google Maps app or through
a web browser, the user dropping the PIN
may opt to get directions to the location,
mark the location with a label, add a
business address to the location, or share
the location with another user.
8. The PIN identifies and marks a
specific location of the user’s choosing on
Google Maps. The PIN need not be
dropped at the location where the
user/the user’s device is located at the
time of sharing the PIN. The PIN dropped
and shared need not be the realtime
location of the user sharing the PIN.
9. Google Maps allows users to share
information, such as the PIN, with third
parties. This is explained in Google’s
privacy policy, which is available at
https:policies.google.com/privacy?hI=en
US, and shares as follows: “ Many of our
services let you share information with
other people, and you have control over
[emphasis supplied]”.
how you share
Users consent to the privacy policy when
they create a Google Account. In this
case, if a user wants to share a PIN, they
can do so by clicking on the ‘share’
button. This generates a link to Google
Maps that the user can share with others
through messaging platforms or other
modes of online communication. When
clicked, the link directs users (having
access to the link) to the location where
the PIN was dropped on the map.
10. The Google Maps PIN feature, which
includes the creation of a PIN or the
sharing of such a PIN with another user,
does not impinge on the user’s privacy as
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the user has full control over sharing of
such information. The user with access to
the link can only access the static location
pinned and shared on Google Maps.
The
pinned location does not enable real
time tracking of the user or their
device. Even if the PIN were to coincide
with a user’s location at a given time, this
would (a) be the static location pinned by
the user; and (b) only be accessible to
others when a user affirmatively shares
the PIN with them by clicking on the share
button.”
(emphasis added)
10.1. 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 realtime 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.
10.2. 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
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cannot be a condition of bail. The condition deserves to be
deleted and ordered accordingly. In some cases, this Court
may have imposed a similar condition. But in those cases,
this Court was not called upon to decide the issue of the effect
and legality of such a condition.
THE CONDITION OF FURNISHING CERTIFICATE OF THE
EMBASSY
11. Now, we come to the decision of the Supreme Court
1
Legal Aid Committee relied upon by the High Court. In the
first part of paragraph 15, the prayers made in the petition
filed before this Court have been set out. We are quoting the
relevant part of paragraph 15, which reads thus:
“15. But the main reason which
motivated the Supreme Court Legal
Aid Society to file this petition under
Article 32 of the Constitution was the
delay in the disposal of cases under
. The reliefs
the Act involving foreigners
claimed included a direction to treat further
detention of foreigners, who were
languishing in jails as undertrials under
the Act for a period exceeding two years,
as void or in any case they be released on
bail and it was further submitted by
counsel that their cases be given priority
over others. When the petition came up for
admission it was pointed out to counsel
that such an invidious distinction between
similarly situate undertrials who are
citizens of this country and who are
foreigners may not be permissible under
the Constitution and even if priority is
accorded to the cases of foreigners it may
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 16 of 25
| have the effect of foreigners being<br>permitted to jump the queue and slide<br>down cases of citizens even if their cases<br>are old and pending since long. Counsel<br>immediately realised that such a<br>distinction if drawn would result in cases<br>of Indian citizens being further delayed at<br>the behest of foreigners, a procedure which<br>may not be consistent with law. He,<br>therefore, rightly sought permission to<br>amend the causetitle and prayer clauses<br>of the petition which was permitted. In<br>substance the petitioner now prays that all<br>undertrials who are in jail for the<br>commission of any offence or offences<br>under the Act for a period exceeding two<br>years on account of the delay in the<br>disposal of cases lodged against them<br>should be forthwith released from jail<br>declaring their further detention to be<br>illegal and void and pending decision of<br>this Court on the said larger issue, they<br>should in any case be released on bail.<br>………….” | |||
|---|---|---|---|
| (emphasis added) | |||
| In the same paragraph 15, directions have been issued which<br>read thus: | |||
| “We, therefore, direct as under:<br>(i) Where the undertrial is accused<br>of an offence(s) under the Act<br>prescribing a punishment of<br>imprisonment of five years or less<br>and fine, such an undertrial shall<br>be released on bail if he has been<br>in jail for a period which is not<br>less than half the punishment<br>provided for the offence with | |||
| “We, therefore, direct as under: | |||
| (i) Where the undertrial is accused<br>of an offence(s) under the Act<br>prescribing a punishment of<br>imprisonment of five years or less<br>and fine, such an undertrial shall<br>be released on bail if he has been<br>in jail for a period which is not<br>less than half the punishment<br>provided for the offence with |
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 17 of 25
which he is charged and where he
is charged with more than one
offence, the offence providing the
highest punishment. If the offence
with which he is charged
prescribes the maximum fine, the
bail amount shall be 50% of the
said amount with two sureties for
like amount. If the maximum fine
is not prescribed bail shall be to
the satisfaction of the Special
Judge concerned with two sureties
for like amount.
(ii) Where the undertrial accused is
charged with an offence(s) under the
Act providing for punishment
exceeding five years and fine, such an
undertrial shall be released on bail on
the term set out in (i) above provided
that his bail amount shall in no case
be less than Rs 50,000 with two
sureties for like amount.
(iii)
Where the undertrial accused
is charged with an offence(s)
under the Act punishable with
minimum imprisonment of ten
years and a minimum fine of
Rupees one lakh, such an
undertrial shall be released on
bail if he has been in jail for not
less than five years provided, he
furnishes bail in the sum of
Rupees one lakh with two sureties
for like amount.
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 18 of 25
| (iv) Where an undertrial accused is<br>charged for the commission of an<br>offence punishable under Sections 31<br>and 31A of the Act, such an<br>undertrial shall not be entitled to be<br>released on bail by virtue of this order. | (iv) Where an undertrial accused is<br>charged for the commission of an<br>offence punishable under Sections 31<br>and 31A of the Act, such an<br>undertrial shall not be entitled to be<br>released on bail by virtue of this order. | |
|---|---|---|
| The directives in clauses (i), (ii) and (iii)<br>above shall be subject to the following<br>general conditions: | ||
| (i) The undertrial accused entitled<br>to be released on bail shall deposit<br>his passport with the learned<br>Judge of the Special Court<br>concerned and if he does not hold<br>a passport, he shall file an<br>affidavit to that effect in the form<br>that may be prescribed by the<br>learned Special Judge. In the latter<br>case the learned Special Judge will, if<br>he has reason to doubt the accuracy of<br>the statement, write to the Passport<br>Officer concerned to verify the<br>statement and the Passport Officer<br>shall verify his record and send a<br>reply within three weeks. If he fails to<br>reply within the said time, the learned<br>Special Judge will be entitled to act on<br>the statement of the undertrial<br>accused; | ||
| (ii) the undertrial accused shall on<br>being released on bail present himself<br>at the police station which has<br>prosecuted him at least once in a<br>month in the case of those covered<br>under clause (i), once in a fortnight in<br>the case of those covered under clause |
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 19 of 25
(ii) and once in a week in the case of
those covered by clause (iii), unless
leave of absence is obtained in
advance from the Special Judge
concerned;
(iii)
the benefit of the direction in
clauses (ii) and (iii) shall not be
available to those accused persons
who are, in the opinion of the
learned Special Judge, for reasons
to be stated in writing, likely to
tamper with evidence or influence
the prosecution witnesses ;
(iv) in the case of undertrial
accused who are foreigners, the
Special Judge shall, besides
impounding their passports, insist
on a certificate of assurance from
the Embassy/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;
(v) the undertrial accused shall
not leave the area in relation to
which the Special Court is
constituted except with the
permission of the learned Special
Judge;
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(vi) the undertrial accused may
furnish bail by depositing cash
equal to the bail amount;
(vii) the Special Judge will be at
liberty to cancel bail if any of the
above conditions are violated or a
case for cancellation of bail is
otherwise made out; and
(viii) after the release of the
undertrial accused pursuant to
this order, the cases of those
undertrials who have not been
released and are in jail will be
accorded priority and the Special
Court will proceed with them as
provided in Section 309 of the
Code.”
(emphasis added)
However, paragraph 16 is relevant, which reads thus:
“ 16. We may state that the above
are intended to operate as onetime
directions for cases in which the
accused persons are in jail and their
trials are delayed. They are not
intended to interfere with the
Special Court's power to grant bail
under Section 37 of the Act. The
Special Court will be free to exercise
that power keeping in view the
complaint of inordinate delay in the
The
disposal of the pending cases.
Special Court will, notwithstanding the
directions, be free to cancel bail if the
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accused is found to be misusing it and
grounds for cancellation of bail exist.
Lastly, we grant liberty to apply in case
of any difficulty in the implementation of
this order. ”
(emphasis added)
11.1 . The directions contained in paragraph 15 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. 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.
12. 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
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 22 of 25
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. If the
Embassy/High Commission records reasons for denying the
certificate and the reasons are based on the adverse conduct
of the accused based on material, the Court can always
consider the reasons recorded while considering an
application for dispensing with the condition. However, the
Courts must remember that the accused has no right to
compel the Embassy/High Commission to issue such a
certificate. There can be very many reasons for recording
adversely which again cannot be the basis to deny bail already
granted. In such a case, instead of the condition of obtaining
such a certificate, 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.
13. Coming to the facts of the case, bail has been granted to
the appellant firstly on the ground that the appellant has been
implicated based on statements recorded under Section 67 of
the NDPS Act, and that such statements are entirely
inadmissible in view of the decision of this Court in the case of
Criminal Appeal @ SLP (Crl) No.633940 of 2023 Page 23 of 25
5
Tofan Singh v. State of Tamil Nadu . So, bail has been
granted on merits as well. Secondly, the bail has also been
granted relying upon what is held in paragraph 15 of the
decision in the case of
Supreme Court Legal Aid
1
As the bail was granted on merits by relying
Committee .
2
upon the decision of this Court in the case of ,
Tofan Singh
there was no reason for the High Court to have imposed all
the onerous conditions incorporated in paragraph 15 of the
decision in the case of Supreme Court Legal Aid
1
Committee .
14. 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
1
Committee .
15. Based on our findings on the two issues mentioned
above, we direct that the two conditions in the order granting
bail to the appellant, namely, obtaining a certificate from the
Embassy/High Commission and dropping a pin of Google
Maps, shall stand deleted.
5 (2021) 4 SCC 1
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16. The case shall be listed on 15 July 2024 for passing final
orders after considering the compliances made by the
appellant so far.
....…………..………J.
(Abhay S. Oka)
..…………..…….…J.
(Ujjal Bhuyan)
New Delhi;
July 08, 2024.
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