2024 (10) TMI 1663 - HC - Indian Laws

Foreign nationals with overstayed visas get reduced bail surety amounts under NDPS Act despite availability concerns

Delhi HC partially modified bail conditions for two foreign nationals accused under NDPS Act who sought waiver of surety requirements. The court ... Seeking modification of the conditions of bail - Waiver or substitution of surety - foreign nationals accused of serious offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) - poor or resource-less or unable to furnish surety - HELD THAT:- Upon reviewing the Supreme Court’s decisions in the Supreme Court Legal Aid Committee [1994 (10) TMI 290 - SUPREME COURT] and Frank Vitus [2024 (7) TMI 458 - SUPREME COURT] cases, it is clear that while bail conditions must be achievable by the prisoner, the court must still enforce those requirements that are necessary to ensure the availability of the prisoner for trial and for compliance with any sentence imposed, maintaining the integrity of the judicial process; and After reviewing the judicial context, this court believes that the conditions imposed for grant of bail or suspension of sentence must pass muster on the anvil of the following criteria: First, the conditions must be necessary to ensure that the accused remains available for trial. Second, the conditions must be necessary to ensure that the integrity of the judicial process is preserved. Third, the conditions must not be impossible for the accused to fulfill. Only then the conditions imposed meet the aforesaid three-fold test, would they be proportionate, fair and correct balance between the right of a prisoner to be able to avail their liberty and for the State to enforce the law. Waiver of the requirement of furnishing a surety or substituting surety with a cash deposit should not be granted for the asking; and where granted, such waiver or substitution should be guarded, to ensure that at least the fundamental requirement that an undertrial/convict must remain available to face trial or to undergo the punishment awarded, is not jeopardised. Whether or not the requirement for furnishing surety is to be waived or substituted in a given case, must be tested on the anvil of the three essential tests referred to above; and if after applying such tests, the court is satisfied that the requirement of furnishing surety can be waived or substituted without compromising the judicial process, a court would be welladvised to do so. It must be reiterated however, that the requirement of furnishing surety should be the norm, and dispensing with that requirement, the exception, to be made only where a prisoner suffers from genuine inability to furnish surety; In the present case, the material on record indicates that petitioner Stephen entered India in August 2011 on a Nigerian passport and Indian medical visa. The Indian medical visa was valid upto October 2011. His Nigerian passport expired in May 2016. Thereafter, petitioner Stephen has overstayed in India for the last about 13 years, without a valid visa. Apart from that, petitioner Stephen is also alleged to have submitted incorrect or forged visa and passport details to hotel owners, as filed by the latter on the portal of the Bureau of Immigration, to extend his stay in India. A Look-Out Circular had also been opened by the FRRO against him. It must also be noted that in the course of the present proceedings, this court had explored the possibility of modifying the bail conditions for petitioner Stephen by requiring Ms. Fatima Umoru, who is stated to be petitioner Stephen’s wife and is presently residing at the address furnished by the petitioner, to deposit her own passport or share her bank statements to ascertain if she was really not in a position to stand surety for him. Ms. Umoru however had declined to do either of those things. Accordingly, nobody, including the petitioner’s wife is willing to stand surety for him. To be sure, it was not the intention of this court to bind the wife or to coerce her to stand surety for petitioner Stephen; but the purpose of making those inquiries was for this court to satisfy itself if petitioner Stephen deserves the confidence of this court to enlarge him on bail by dispensing with the requirement of furnishing a surety bond. In the circumstances, this court entertains serious doubt as to whether petitioner Stephen would make himself available for trial. Insofar as petitioner Enyi is concerned, the material on record indicates that Enyi entered India in or about April 2012 on a Nigerian passport and a valid visa. The visa was issued on 17.04.2012 on a passport issued on 27.01.2012. The visa expired on 16.10.2012 and the passport also expired on 26.01.2017. The petitioner has been staying in India without a valid visa after 16.10.2012, the date on which his visa expired. Both petitioners are foreign nationals who have been granted bail with specified conditions. They are both required to stand trial in India for serious offences under the NDPS Act. Both claim that they have no established social ties in India. However, as a measure of abundant accommodation, this court considers it sufficient to modify the petitioners’ bail conditions to the following limited extent : Petitioner Stephen is permitted to furnish a personal bond with 01 surety in the sum of Rs. 40,000/- (instead of 02 sureties in the sum of Rs. 1,00,000/-); and Petitioner Enyi is permitted to furnish a personal bond with 01 surety in the sum of Rs. 25,000/- (instead of 01 surety in the sum of Rs. 1,00,000/-). It is made clear that the petitioners would be required to comply with all other conditions imposed vide order dated 20.03.2024 passed in BAIL APPL. No. 4056/2023; and orders dated 26.09.2023 and 09.02.2024 passed in BAIL APPL. No. 632/2022. The present applications are disposed-of, in the above terms. The core legal questions considered by the Court in these applications involve the modification of bail conditions imposed on foreign nationals accused of serious offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). Specifically, the issues are:1. Whether a court may dispense entirely with the requirement that an undertrial or convict furnish a surety bond signed by a third party guaranteeing their attendance at trial or compliance with sentence.2. Whether a court may substitute the requirement of furnishing a surety bond with a cash deposit, without any third party assurance of the accused's presence for trial or sentence.3. If such waiver or substitution is permissible, whether it should be granted as a matter of course or only after careful consideration, especially in cases involving foreign nationals who have overstayed their visas or entered India illegally.Issue-wise Detailed Analysis1. Permissibility of Dispensing with Surety Bond RequirementThe Court examined the established legal framework governing bail, including the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.), particularly sections 441, 445, and 482, and relevant constitutional provisions under Article 226. The Court also considered judicial precedents, notably the Supreme Court's interpretation in Ash Mohammad vs. Shiv Raj Singh, which clarified that bail entails release from custody to the custody of sureties who guarantee the accused's presence at trial. The Court emphasized the fundamental principle that bail is not merely liberty but liberty subject to judicial control through sureties.Section 445 Cr.P.C. permits courts to accept a deposit of money in lieu of executing a bond with sureties, except in cases of bonds for good behaviour. The Court noted that this provision has been retained substantively in the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) with corresponding forms, indicating legislative acceptance of cash deposits as an alternative under certain circumstances.Judicial precedents such as the Supreme Court Legal Aid Committee case (1994) and Frank Vitus (2024) were analyzed. The former recognized the need to balance the strict bail conditions under the NDPS Act with the rights of undertrials, including foreign nationals, and allowed for bail with sureties and cash deposits, subject to conditions ensuring the accused's presence. The latter emphasized that bail conditions must not be arbitrary but should ensure the accused's cooperation with the trial process and presence at proceedings.The Court acknowledged that courts may waive the surety bond requirement in appropriate cases, particularly where the accused faces genuine inability to furnish surety due to poverty or lack of local contacts. However, it stressed that such waiver is an exception, not a rule, and must be cautiously exercised to preserve the judicial process's integrity.2. Substitution of Surety Bond with Cash DepositThe Court analyzed the practical and legal implications of substituting surety bonds with cash deposits. While section 445 Cr.P.C. and Form 45 permit deposit of money in lieu of surety, the Court underscored that the primary purpose of a surety is to ensure the accused's presence and cooperation, which a mere cash deposit cannot guarantee. The surety's obligation includes producing the accused when required, and forfeiture of cash does not fully compensate for the absence of such personal assurance.The Court rejected the petitioners' contention that cash deposits alone suffice, especially given the heightened flight risk associated with foreign nationals who have overstayed visas or entered illegally. It held that accepting cash deposits without a surety undermines the fundamental principle of bail and may jeopardize the judicial process.3. Conditions for Waiver or Modification of Bail Terms, Particularly for Foreign NationalsThe Court recognized the complexity of bail conditions for foreign nationals, especially those who have overstayed visas or entered India illegally. It noted the Central Government's policy suspension of issuing X-Category visas to undertrials and convicts, reflecting concerns about misuse and prolonged unauthorized stays.The Court emphasized that any waiver or substitution of surety for cash must be carefully scrutinized, particularly for foreign nationals, given the increased risk of absconding. It held that such relief should not be granted merely on request but only after verifying genuine inability to furnish surety and ensuring that the accused will remain available for trial.In the present cases, the Court found no convincing evidence of financial hardship or genuine inability to produce surety. Attempts to verify surety availability, including inquiries into the petitioner's spouse's willingness and capacity to stand surety, were unsuccessful. The Court expressed serious doubts about the petitioners' likelihood to remain available for trial if surety requirements were waived.Application of Law to Facts and Treatment of Competing ArgumentsThe petitioners, both Nigerian nationals, had overstayed their visas for over a decade and were accused of serious offences under the NDPS Act. They sought reduction of personal bond amounts and waiver of surety requirements, proposing cash deposits instead. The State opposed these modifications, citing the petitioners' illegal status and policy considerations against granting visas or leniency.The Court balanced the petitioners' liberty interests against the State's interest in ensuring the integrity of the judicial process and preventing flight risks. It acknowledged the principle that bail should not be denied for inability to furnish surety but held that the requirement of surety serves a critical function that cannot be lightly dispensed with, especially for foreign nationals with no established ties or resources in India.The Court rejected the petitioners' requests for waiver of surety and acceptance of cash deposits alone but agreed to reduce the amounts of personal bonds and surety bonds to more manageable sums, reflecting a measured accommodation without compromising judicial safeguards.Significant Holdings'The condition of furnishing surety is not purposeless; it stems from the fundamental principle of bail, namely of releasing a prisoner from the court's custody to that of the surety, whose primary role is to ensure the prisoner's presence for the trial or for undergoing sentence. Thus, the waiver of this requirement cannot be a matter of entitlement, to be granted for the asking.''Substitution of a surety with a cash deposit is an absolute exception, since the intent and purpose of the court in asking for a surety is simply not served by accepting a cash deposit instead. The purpose of justice is not served, by merely 'encashing' a prisoner's flight-risk; and merely accepting cash in lieu of surety would not uphold the integrity of the judicial process.''Waiver or substitution of surety should be even more guarded where the prisoner is a foreign national, with the obvious heightened level of flight risk.''It is permissible for a court to completely dispense with the requirement that an undertrial/convict must furnish a surety bond executed by a third person to avail bail or suspension of sentence; however, such waiver should be granted only after applying a three-fold test: (i) necessity to ensure the accused remains available for trial, (ii) preservation of the judicial process's integrity, and (iii) feasibility for the accused to fulfill the condition.''The conditions imposed for grant of bail or suspension of sentence must be proportionate, fair, and balance the right of a prisoner to liberty with the State's interest in enforcing the law.'Final Determinations on Each Issue1. Courts may waive the requirement of furnishing surety bonds but only in exceptional cases after careful consideration; it is not an automatic entitlement.2. Substituting surety bonds with cash deposits without any third-party assurance is generally impermissible, especially for foreign nationals with heightened flight risk.3. Bail conditions must be necessary, proportionate, and feasible, ensuring the accused's presence at trial and preserving judicial integrity.4. In the present cases, waiver of surety and acceptance of cash deposits were refused; however, the amounts of personal bonds and surety bonds were reduced to Rs. 40,000/- with one surety for the first petitioner and Rs. 25,000/- with one surety for the second petitioner.