TaxTMI 
TaxTMI 
2026 (8) TMI 1061
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....ustubh Khanna, Adv., Mr. Prakash Naik, Sr. Adv., Mr. Rahul Chitnis, Adv., Mr. Hersh Desai, Adv., Ms. Shwetal Shepal, Adv., Mr. Aditya Khanna, Adv., Mr. Chander Shekhar Ashri, AOR Mr. Avnish Pandey, AOR Mr. Naveen Sharma, AOR Mrs. Swati Bhushan Sharma, Adv., Mr. S.K. Sharma, Adv., Ms. Payal Gola, Adv., Mr. Niranjan Sahu, AOR Ms. Shraddha Chirania, Adv., Mr. Kunal Mimani, AOR Mr. Samar Vijay Singh, AOR Ms. Sabarni Som, Adv., Mr. Aman Dev Sharma, Adv., Mr. Keshav Mittal, Adv., Mr. Gaj Singh, Adv., Mr. Sudhanshu Rai, Adv., Mr. Shubham Malik, Adv., Mr. Rajat Sinha Roy, Adv., Mr. Abhikalp Pratap Singh, AOR Mr. Kartikey, Adv., Ms. Shubhangi Agarwal, Adv., Mr. Siddharth Garg, Adv., Mr. Ahanthem Henry, Adv., Mr. Ahanthem Rohen Singh, Adv., Mr. Mohan Singh, Adv., Mr. Aniket Rajput, Adv., Ms. Khoisnam Nirmala Devi, Adv., Mr. Yeshu Mehta, Adv., Mr. Tanay Hegde, Adv., Mr. Kumar Mihir, AOR Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv., Mrs. Ashly Harshad, Adv., Mr. Mahabir Singh, Adv., Mr. Muhammed Siddick, Adv., Mr. Anukirat Singh Baweja, Adv., Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv., Mr. Dhruv Yadav, Adv., Mr. Avneesh Arputham, AOR Mr. Ankit Sharma, Adv., Mr. Ankolekar Guru....
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....visions 13 Bail under Special Statutes 18 Prevention of Money Laundering Act, 2002 23 Unlawful Activities Prevention Act, 1967 28 Narcotic Drugs and Psychotropic Substances Act, 1985 35 Principles Regarding the Grant of Bail to Foreign Nationals 43 Applying the understanding to the Present Facts and Cancellation of Bail 49 The Issue Regarding Sureties 55 Factual Matrix : Non-existence of Sureties 59 Indian Statutory Position and Comparative International Perspective 74 Inputs by the Amicus Curiae, Agencies and the Appellant 79 Power of this Court to issue Directions under Article 142 103 OUR VIEW 114 Analysing The Inputs - and Our Opinion Thereupon 114 Directions 132 Suggestions 136 Annexure I 142 1. Leave Granted. The Appeal 2. At first glance, the scope of this appeal appears to be limited. Union of India is aggrieved by the grant of bail to the respondent(s)-accused in connection with Crime No. 37 of 2023 registered with the Directorate of Revenue Intelligence [DRI] branch under Sections 8(c), 21(c), 23(c), 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances A....
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.... used to contact Ms. Hikatoli Sumi motstly through whatsapp only. He knowingly hid this fact in his earlier statement recorded on 15/16.03.2023 in the office of DRI, Delhi Zonal Unit. ii. He had instructed Ms. Hikatoli Sumi to collect the trolley bag from Mr. Damodara Surya Rama Prasad Dubey on 15.03.2023. He had informed Ms. Hikatoli Sumi about the fact that the said trolley bag was containing some narcotic drugs concealed in it. He promised to give Ms. Hikatoli Sumi Rs. 20000/- in cash for taking the delivery of the said trolley bag from Mr. Damodara Surya Rama Prasad Dubey. He also instructed Ms. Hikatoli Sumi that Ms. Helen (Mob. +91 8798508619) would also be present on the spot while she would take the delivery of the said trolley bag from Mr. Damodara Surya Rama Prasad Dubey. He also instructed Ms. Hikatoli Sumi that after taking the trolley bag from Mr. Dubey, she needed to handover the trolley bag to Ms. Helen and as per promise she would get Rs. 20,000/- cash from Ms. Helen. iii. He was shown two photographs and he identified the person in both the photographs as Ms. Helen alias Oge. iv. He in close coordination with Ms. Helen alias Oge used to t....
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....ase No. 8510/2016 [By judgment dated 21st December 2019] and was out on bail having been released by the Delhi High Court, whereafter he partook in the instant crime and (c) he is a member of the international drug trafficking syndicate as evidenced by the WhatsApp chats placed on record. 4. It was an application seeking regular bail, in which the order impugned before us came to be passed. The relevant extracts of the impugned order are as follows: "Prima facie there is no answer given in the Affidavit-in-Reply to the questions which have been prima facie listed by the Court in paragraph Nos. 2 and 4 of its aforesaid order. Said Affidavit-in-Reply is nothing but a mere reiteration of the facts of the case and nothing more. The prosecution is relying upon WhatsApp chats as argued by Mr. Thakker through VC. Said chats unless they show the live link to establish the complicity of the person involved in the crime cannot be referred to and relied upon at the stage of bail as held by the Supreme Court in the case of Bharat Chaudhary Vs. Union of India (2021) 20 SCC 50. At the stage of bail complicity of the Applicant cannot be considered on the basis of hearsay evidence w....
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....3 of the Registration of Foreigners Rules, 1992 within the meaning of the Foreigners Act, 1946. This condition is added in view of the decision of the Supreme Court in the case of Frank Vitus v. Narcotics Control Bureau & Ors. Orders Passed by this Court 5. Notice in the Special Leave Petition was issued on 8th September 2025, and the matter was heard from time to time. This Court passed a number of orders. Those relevant for final determination of this appeal are summarised hereinbelow: 5.1 On 19th September 2025, the Director-General of Police for the State of Maharashtra [DGPM] was directed to take steps to arrest the respondent-accused and get in touch with the Embassy of the Federal Republic of Nigeria to secure his presence at Trial. 5.2 On 31st October 2025, pursuant to earlier orders of the Court, (a) The Director General, DRI, Delhi Zonal Unit; (b) Principal Additional Director General, DRI, Delhi Zonal Unit; (c) Principal Additional Director General, DRI, Mumbai Zonal Unit and (d) Commissioner of Police, Navi Mumbai, were present in Court, and certain affidavits, consequent upon the discussion that took place, were directed ....
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....ber, and that the customer ID number mentioned belongs to some other customer of a different branch. ... ... ... 2.13. As the Surety could not be traced and the address provided was found to be incomplete or non-existent, the Petitioner, vide application dated 12.11.2025 (Annexed hereto and marked as Annexure A19 pg. 46-50) has approached the Trial Court seeking issuance of notice to Surety Shri Sushil Balkrushna Jadhav and forfeiture of the surety bond furnished by him under the provisions of Form 50 read with Section 491 of BNSS, cancellation of bond under section 492 of BNSS, and issuance of a non-bailable warrant to secure his presence before the Court. Furthermore, the Petitioner has also sought the Court's permission to ask the advocate who had identified the Surety and signed on the surety papers, about the identity, address, credentials, and whereabouts of the surety." 4. The affidavit brings to light yet another serious issue concerning the manner in which Courts are accepting sureties, more particularly, in cases involving heinous offences. It has been brought to our notice by the learned Additional Solicitor General that in at least 38 case....
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....ces. In view of these international obligations, the Parliament enacted the NDPS Act, 19858, replacing the Opium Acts of 1857 and 187 [https://narcoticsindia.nic.in/Notifications/National_Policy_on_NDPS_published.pdf] and the Dangerous Drugs Act, 1930. Let us understand the scheme of the NDPS Act at the outset. 6.1 Chapter I houses the definitions and the power to amend the list of psychotropic substances. Section 2 provides definitions of key terms such as narcotic drugs, psychotropic substances, and cannabis. 6.2 Chapter II establishes the framework, setting out the basis of the functioning of the provisions of the Act. Section 4 requires the Central Government to take measures to prevent and combat drug abuse and illicit trafficking, and Sections 5 and 7 provide for the appointment of officers at the Central and State level. 6.3 Chapter III houses the principle of total prohibition with limited exceptions. This is the primary basis of the Act. Section 8 is the main provision, which postulates that activities such as production, possession, sale, purchase, transport, and consumption of narcotic drugs are prohibited. What is exempted from being prohibited thereby is th....
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....ailable statistics reveal that there has been a sharp increase in the number of offences registered under this Act-almost doubling between 2018 and 2023. Data from the NCRB verifies this statement. The same is as follows: Category 2019 2020 2021 2022 2023 Total States 70,447 57,600 75,881 1,11,823 1,16,051 Total UTs 2,274 2,206 2,450 3,413 3,959 TOTAL (ALL INDIA) 72,721 59,806 78,331 1,15,236 1,20,010 8. Time and again, the dangerousness of offences involving this Act has been highlighted by this Court. For instance, a coordinate Bench in Gurdev Singh v. State of Punjab (2021) 6 SCC 558, while considering the imposition of higher sentence in a case involving 1kg heroin, observed: "16. While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in i....
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....ple rule of interpretation. When a general law and a special law both are applicable, the special law is to be given preference. The examples referred to here pertain to civil actions. Regarding criminal law too, there are a number of examples, a few of which will be discussed further in this judgment. 10. Before proceeding to the special statutes, it is important to take note of 'bail' under general criminal law so as to facilitate the juxtaposition of the same. As far back as 1931, the Allahabad High Court in Emperor v. H.L. Hutchinson 1931 SCC OnLine All 14 (two-Judge Bench) had held, in regard to the Meerut Conspiracy Case, that "bail should be the rule and refusal of bail should be the exception" as per C.R. Mukerji J. Further, Boys J. in the same judgment, with respect to the objective of incarceration of an accused, observed: "As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment; that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty, even if eventually he is acquitted, is improper. This is most manifest. The only legitimate purpo....
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....piracy I do not consider there is serious danger of this. (g) The danger of witnesses being tampered with. In the present case the prosecution is closed. (h) Opportunity to the applicant to prepare his defense. ...." (emphasis supplied) This has long been applied, reapplied and emphasised in the variety of situations. For instance, in Sanjay Chandra v. CBI (2012) 1 SCC 40, where the Appellant apparently was accused of having caused loss to the state exchequer, the Court observed: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in cu....
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....n enacted by the Legislature dealing with a particular facet of crime. For instance, the one in which the present proceedings arise, or the Prevention of Money Laundering Act, 2002 [PMLA] or Unlawful Activities Prevention Act, 1967, [UAPA] etc. These are special laws. Each of them deals with a particular aspect of crime, and accordingly, the rigours thereof prescribe certain procedures, conditions, etc., which must be scrupulously complied with. After all, it is a well-settled position that penal statutes must be strictly construed and implemented. To facilitate a comparative understanding, let us look to the grant of bail under these statutes. Prevention of Money Laundering Act, 2002 11.1 Under the PMLA, Sections 24 and 45 are relevant. "24. Burden of proof.-- When a person is accused of having committed the offence under section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused." ... "45. Offences to be cognizable and non-bailable.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment o....
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....to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail. ... 303. ... The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of the trial court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466 : (2013) 3 SCC (Cri) 575], the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt. ... ... ... 315. Suffice it to observe that it would be preposterous and....
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....sured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." (emphasis supplied) 11.1.3 In Manish Sisodia v. Enforcement Directorate (2024) 12 SCC 660, another co-ordinate Bench made pertinent observations as follows: "52. The Court in Javed Gulam Nabi Shaikh case [Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813 : (2025) 1 SCC (Cri) 222] further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straightforward open-and-shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial cou....
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.... true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing." 11.2.1 It was held in NIA v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, as follows: "23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and Mcoca. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, M....
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....of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with ....
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....al and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and iii. whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full-fledged trial." 11.2.5 In Syed Iftikhar Andrabi v. National Investigation Agency 2026 SCC OnLine SC 881, Ujjal Bhuyan J., while dealing with a case involving 3.2 Kgs. of heroin and a large amount of cash, observed that the holding in Gulfisha (supra) discussed above and Gurwinder Singh v. State of Punjab (2024) 5 SCC 403 has taken a somewhat restrictive view which does not accord with Najeeb (supra). It has been held that the test as laid down in Section 43D(5) does not restrict the power of a constitutional Court to grant bail, when the liberty of the accused has been infringed for a prolonged period of time. It further held that Najeeb (supra) did not hold that the mere passage of time entitles an accused to bail; instead, it held that the continued application of the Section becomes "constitutionally suspect" [Para 27.11], when incarceration begins to be unduly prolonged, and....
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....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 sub-section (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." (emphasis supplied) 11.3.1 In Union of India v. Ram Samujh (1999) 9 SCC 429, a co-ordinate Bench held that the jurisdiction of the Court to grant bail is circumscribed by Section 37, and it was held that the object and intent of the statute, which was enacted to check the menace of drugs in the society, has to be followed mandatorily. 11.3.2 A three-Judge Bench in Narcotics Control Bureau v. Mohit Aggarwal (2022) 18 SCC 374, while discussing earlier judgment in C....
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....e court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 22. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this Court have, therefore, emphasised that the satisfaction which courts are expected to record i.e. that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831]). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436-A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil [Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : (2....
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.... UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc." (emphasis supplied) 11.3.7 The conclusion that can be drawn from the above discussion is that when it comes to cases under this special law (NDPS Act 1985) and particularly involving commercial quantities, a general hesitation pervades. In complying with the twin conditions, a broad perusal of the evidence is called for, not one that dives into minutiae, or a detailed examination of all material. Article 21 considerations are deservedly at the centre, but they are not exercised independent of the statutory rigours. 12. A close analysis of all three statutes discussed above shows that this Court's approach has evolved differently under each statute. 12.1 Under the UAPA, an in-detail examination of the evidence at bail stage is avoided. National security, as a ground, operates in full force but even then, the majesty of Article 21 grants accu....
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....hen, what are the aspects or factors that are to be kept in mind by the Court? Let us examine this. 13.1 In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India (1994) 6 SCC 731, certain directions were issued regarding bail in NDPS cases. Those are as follows: "15. ...We, therefore, direct as under: (i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with 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 fin....
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....t 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; (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 supplied) 13.2 In Louis De Raedt v. Union of India (1991) 3 SCC 554, while dealing with writ petitions by individuals who had been asked by the Government to leave the country by a specified date, despite the fact that they had be....
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....ons 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 privacy. The reason is that the effect of keeping such constant ....
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.... proportionate and capable of compliance. Applying the understanding to the Present Facts and Cancellation of Bail 14. Having understood the position in detail, let us come back to the case at hand. The respondent-accused had been arrested upon the statement of the co-accused Ms. Sumi. The offence in question was committed during the period when he had been released on bail by the Delhi High Court in relation to a similar offence. The custody period in relation to the instant FIR was around two and a half years. We have perused all the orders passed by the High Court of Judicature at Bombay in the bail application. The factum of proceedings before the Patiala House Court, New Delhi is conspicuously absent from the zone of consideration. All that has been said is that since there was no recovery from him, this Court's judgment in Tofan Singh supra would apply and, as such, he is entitled to the relief of bail. Arguably, the insistence on the Union of India filing its affidavit would be in partial compliance with the requirement of the prosecuting agency/prosecutor being heard, but it does not tell us how the High Court came to the conclusion that there are 'reasonable grounds ....
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....eroin ... 1 Kg. (iv) ... ... ... (v) ... ... ... (vi) ... ... ... (vii) ... ... ... (viii) ... ... ... (ix) ... ... ... (x) ... ... ... (xi) ... ... ... (xii) ... ... ... (xiii) ... ... ... (xiv) ... ... ... (b) financing, directly or indirectly, any of the activities specified in clause (a) shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death." Undisputedly, the quantity of heroin involved in the present case is 5 Kgs (approx.) and the respondent-accused is allegedly the master mind of the crime. Whether or not he is actually so, was a matter to be determined at trial by leading proper evidence. Given that Section 31A of the NDPS Act applies at the threshold of 1kg, the death sentence is a real probability as the eventual outcome against the respondent-accused. Section 37(2) of the NDPS Act states that the restrictions put in thereby are in additio....
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....further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond: Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. (2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person is detained, on completion of one-half or onethird of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-sectio....
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.... accused i.e., they are absconding, and the sureties furnished by them are fake. The following tables show the number of foreign nationals arrested in drug cases by drug law enforcement agencies between 2020-2024; the number of cases registered under NDPS against foreign nationals during this time; the total quantum of drugs seized in India during 2021 to 2025 [https://www.pib.gov.in/PressReleasePage.aspx?PRID=2223093(r)=48&lang=2]; and seizure of heroin during 2021 to 2024: FOREIGN NATIONALS ARRESTED IN DRUG CASES (BY DLEAs) Nationality 2024^1 2023^2 2022^3 2021^4 2020^5 Bangladesh 18 24 63 - 2 Nigeria 106 144 139 87 38 Nepal 203 284 175 115 57 Myanmar 25 62 45 22 21 Sri Lanka No data found No data found 2 17 11 Pakistan No data found 4 14 10 5 Russia No data found 5 4 1 8 CASES AGAINST FOREIGN NATIONALS REGISTERED UNDER NDPS ACT BETWEEN 2020-2024 Nationality 2024^6 2023^7 2022^8 2021^9 2020^10 Bangladesh 19 17 2 6 16 Nigeria 259 260 294 245 136 Nepal 129 51 ....
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.... the Hon'ble Chief Justice for constitution of an appropriate Bench as deemed appropriate." Consequent thereto, Suo Moto Writ Petition (Crl) No. 1 of 2021 came to be registered, however, that appears to have remained pending without the needle having moved forward in any manner. Factual Matrix : Non-existence of Sureties 20. Turning our attention back to the present case, once the issue of fake sureties having been furnished came to light, we were of the considered view that it is essential to go to the root of the matter, not only here but also otherwise, for if the very persons responsible for ensuring the accused's presence before the concerned Court are fictitious, the process of criminal justice grinds to a halt, for now there is no accused against whom the trial can proceed. What transpired further is captured as under: 20.1 The Union of India, in its affidavit dated 13th November 2025 indicating compliance of our orders, submitted that: a. The accused was not traceable; b. The address of the surety, namely Sushil Balkrushna Jadhav, was fake and residents of the area were not aware of any such person associated with the address; c. T....
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.... her, stating that he would stand surety for the latter and the necessary papers were to be filed. She had only this much to do with the case. The second affidavit was limited to filing relevant documents that govern the verification of sureties. 20.4 Considering the issue as also the very real possibility of similar circumstances arising in other cases, we thought it fit to examine the processes for verification of sureties as prevalent in States other than Maharashtra, as well. Accordingly, the learned standing counsel for the States and the High Courts were requested to file the relevant information. Such information was supplied to the Court. The same was perused and considered. A large number of commonalities could be deduced from the procedures adopted across the States. The following table that captures the procedure in some States, which is over and above the common aspects across the States: SURETY VERIFICATION S.NO. STATE / UT DETAILS 1. BOMBAY HIGH COURT (ALL JURISDICTIONS) SURETY VERIFICATION APPLICATION (Police Verification "P.V.") • Verified following documents • P.V. Report dated +Ve by. Police Station -Ve Partly +Ve ....
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....sonally:- • Whether the Surety is related to the accused; if so how? • Whether the Surety has stood has surety for any other person in the preceding six months. • Whether, at any time, surety bond forfeited. If so, give particulars:- • Whether, at any Time, application for surety ship which was rejected; if so, give the particulars thereof:- • Whether the surety is involved in any litigation or accused in any case :- • Any particulars in regard to the status of the surety, or his income and assets which the surety may desire to give: Surety details in - (M) 83, (M) 83 A, (M) 84, (M) 85 • Name of surety • Name of accused • Case details assuring accused's presence on court's direction • Forfeit money in non-compliance of court's order. 4. STATE OF KERALA / HIGH COURT OF KERALA • Ensure authenticity and accountability of sureties. • He or she is not acting as a habitual or professional surety and that the particulars furnished are genuine may be incorporated in the format. • Verification of identity and reside....
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....ubstantial amounts. Though it may not be proper for this Court to give any indication as to what should be the substantial amount, in view of the changing economic conditions, we are of the view that (3) each surety should be having solvency to the tune of rupees fifty lacs, where commercial quantity is involved, and in all other cases, except the (4) small quantity the solvency should be of a minimum amount of rupees five lacs and in small quantity, the bond shall be for a (5) minimum amount of rupees one lac for each surety. In order to ascertain solvency, the trial Court(s) may look into the (6) revenue papers with respect to title, ownership or any other proof with regard to their solvency (iii) Wherever (7) Unique Identity Proof Cards (Aadhar Cards) have been issued, the identification by the said UIPC shall be-insisted by the Courts and police officers/officials. The learned trial Court shall insist for identification of the accused whenever they are directed to be present in Court(s)" Further the Courts are also required to adhere to the directions given by the Supreme Court in Thana Singh versus Central Bureau o....
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....r the guidance and directions of eCommittee, Supreme Court of India. • That it is pertinent to mention that CIS is being managed by Ministry of Law and Justice (Department of Justice) and has been implemented by NIC. • That, it is hence submitted that Ministry of Law and Justice (Department of Justice) being the appropriate Ministry, may be impleaded for a resolution of the issue at hand, since NIC is only the implementing agency and Department of Justice under the aegis of Ministry of Law and Justice is the appropriate authority for taking a policy decision concerning any addition of features in the Case Information System. • That, Surety application to be checked by Assistant Registrar of Sessions Department. • Sessions Registrar/Additional Registrar endorsement "Submitted to the Hon'ble Court for necessary Orders and directions". • The Sheristedars to put up the said applications received from Sessions Department before the Presiding Officer for Orders. • That, Sheristedar to make noting in the roznama about the order of the Presiding Officer of acceptance or rejection of surety and send back the Recor....
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....in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount." (emphasis added) 17. The vice of the system is brought out in the Report: "The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely: (1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is prevented from contributing to the preparation of his defence; and (4) the public exchequer has to bear the cost ....
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....e tag, those accused who scheme to obtain bail with the idea of absconding. These touts give surety on the basis of fake identity. They operate with numerous fake ration cards which substantiate their domicile in Delhi each in a different name and address. A back dated stamp paper is procured on which details regarding the power-of-attorney of the guarantor's property in Delhi are stated and is attested by a Notary Public. They also have in their possession fake letterheads of private organisations, fake identity cards of themselves as government servants and fake motor vehicle registration papers. The touts have to be paid 20% to 30% of the surety amount before the presentation of the surety. 19.4 Clause 44 of the Code of Criminal Procedure (Amendment) Bill seeks to incorporate a new section, S. 441A to deal with the abuse of professional and fake sureties which reads as under: Every person standing surety to an accused person for his release on bail, shall make a declaration before the court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars. 19.5 We are of the view that section....
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....taken. 436A. Maximum period for which an undertrial prisoner can be detained. 437. When bail may be taken in case of non-bailable offence. 437A. Bail to require accused to appear before next appellate Court. 438. Direction for grant of bail to person apprehending arrest. 439. Special powers of High Court or Court of Session regarding bail. 440. Amount of bond and reduction thereof. 441. Bond of accused and sureties. 441A. Declaration by sureties. 442. Discharge from custody. 443. Power to order sufficient bail when that first taken is insufficient. 444. Discharge of sureties. 445. Deposit instead of recognizance. 446. Procedure when bond has been forfeited. 446A. Cancellation of bond and bail bond. 447. Procedure in case of insolvency of death of surety or when a bond is forfeited. 448. Bond required from minor. 449. Appeal from orders under section 446. 450. Power to direct levy of amount due on certain recognizances 479. Bail and bond 480. In what cases bail to be taken. 481. Maximum period for which an undertrial prisoner can be detained. 482. When bail may be taken in case of non-bailable offence. 483. Bail to....
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.... a surety, or, in their words, bailor, are clearly laid out as follows^23: • "A Singapore citizen or permanent resident. • 21 years and above. • Not a declared bankrupt. • Not facing criminal charges. • Not an active bailer in other court matters. • Physically, mentally, and financially fit to accept bailor duties. • Prepared to accept bailor duties until the accused's case is over. • Able to pledge security in cash or in personal properties for the bail amount ordered by the court until the accused's case concludes." It is also provided that even if a person fulfils all the above criteria, the courts retain discretion on appointing bailors. The Criminal Procedure Code 2010^24 provides specifically the duties of a surety as follows: "Duties of surety 104. A surety must - (a) ensure that the released person surrenders to custody, or makes himself or herself available for investigations or attends court on the day and at the time and place appointed for him or her to do so; (b) keep in daily communication with the released person and l....
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.... Having appreciated the concept of sureties and some basic facts about how the institutional sureties are used in other countries, we now move to the considerations put forth by the parties in this regard. Inputs by the Amicus Curiae, Agencies and the Appellant 21.4 One of the aspects that the learned amicus curiae has dealt with in extenso, is the suggestions made by the DRI regarding sureties. We have perused the same. Written submissions filed by the Union of India on 15th December 2025 reveal that they are substantially similar to the recommendations of the DRI noted above. 21.5 We find that at least two High Courts, i.e. the High Court of Punjab and Haryana at Chandigarh and the High Court of Delhi, have dealt with the question of fake/false sureties. Let us also take note of those orders: 21.5.1 A learned Single Judge of the Punjab and Haryana High Court in Sharanjit Singh @ Suraj v. State of Punjab CRM-M 49429 of 2023 issued certain directions to the State in connection with the use of the Aadhaar Card: "15. In view thereof, this Court considers to issue the following directions: (i) The appropriate Authorities i.e. the Secretaries of e-Govern....
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....ails which are tendered as surety by the party in the case, shall be fully implemented and utilized optimally. Whenever a person is to stand as surety the same shall be cross-checked with the database to satisfy w.r.t. the provisions of Section 441A of 1973 Code. (viii) The Principal District Judge and the Chief Judicial Magistrates shall inspect the register of Sureties periodically, preferably after every three months. (ix) Registrar General, Punjab & Haryana High Court is directed to issue necessary circulars to all the Courts in the States of Punjab, Haryana and U.T., Chandigarh. Necessary Rules be also framed in this respect, in the meantime, if so required." 21.5.2 The High Court of Delhi in Sunil Tyagi v. State (NCT of Delhi) (2021) 4 HCC (Del) 723, while dealing with the issue of proclaimed offenders, issued certain directions, some of which would apply to sureties also. We have perused the same and taken them into consideration. 21.6 We have also perused the affidavit on behalf of UIDAI originally filed in Suo Motu Writ Petition (Crl) No.1 of 2021. The stand of UIDAI opposes, in a sense, the use of Aadhaar authentication. The same is permitted only ....
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.... identified, traced and proceeded against in accordance with law within a short span of time. The time frame suggested is two days; 21.7.6 To revise surety bond formats to incorporate enhanced disclosures such as details of employer, certificate of identity etc., biometric linkage and the history of the person having stood as surety on earlier occasions; 21.7.7 When an accused person, particularly a foreign national, is identified as a flight risk, all Airports and border authorities should be notified along with name and photograph to account for the possibility of them escaping. When such individuals are released on bail, the embassy of their country of origin should be notified for all necessary action. If such an accused seeks permission to travel abroad, the same can be allowed only on the basis of strict/stringent conditions; and 21.7.8 Judicial officers, police and revenue officials need to be periodically trained regarding surety-based bail- the difficulties it poses for indigent undertrials etc. 21.8 The appellant, Union of India, has also, for its part, made some suggestions to this Court. They are as follows: "Deposit of Passport & Travel Restriction....
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....re the release of the accused on bail. That for this purpose the investigating agency may coordinate with the jurisdictional Police Station for verification of the genuineness of documents and physical existence of the Sureties. 7. A copy of the verification reports of the said credentials and addresses declared by the accused and by the Sureties/ Guarantors should be placed before the Trial Court before release on bail, and a copy should also be kept in the case files of the investigating agency and Police. 8. Immediate action should be initiated against the Sureties, including forfeiture of their properties, in case any bail condition is violated by the accused. Address, Contact details verification and Monitoring 9. The residential address provided by the accused should be verified by the jurisdictional Police and reported to the Trial Court, before the accused is released on bail. This would prevent furnishing of incomplete or wrong/fake address and would make tracing of the accused easy later. That, any changes in the address should be immediately notified by the accused to the Court, jurisdictional Police authorities and the investigating a....
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.... consulate. 18. The concerned Embassies and Consulates should be promptly informed about the accused, their case details and the bail conditions, and they should be requested to provide the details regarding the accused and his/her whereabouts, including whenever the accused approaches the embassy/consulate for any consular services. 19. In appropriate cases, Courts may consider electronic surveillance methods such as GPS tagging of the foreign national accused to ensure continued presence within jurisdiction. 20. Foreign nationals involved in repeat offences of narcotics-related cases should be blacklisted and subsequently deported out of the country after facing trial and if acquitted by the Court or after completion of sentence, as the case may be, under the provisions of relevant laws. 21. Biometric details, including iris recognition of foreign nationals, should be captured by the FRRO, and a secure access be provided to Law Enforcement Agencies (LEAs). Integrating the Bureau of Immigration/FRRO database with the NCRB criminal database would enable identification of passengers with criminal histories, including those exiting or re-entering o....
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....roborated with other evidence, for example the instant case. While Tofan Singh judgement is a milestone in protecting against wrongful conviction, a nuanced application is necessary. Repeat offenders, having demonstrated disregard for the law, should not be allowed to exploit procedural protections to perpetuate organized or habitual crime. Further, it is seen that repeat offenders/ masterminds are not directly involved with possession and carriage of narcotics; thus statements once corroborated with independent evidence should not be discarded, especially at the bail stage. Thus it may be expounded and elucidated that statements recorded under Section 67 may not be admissible during trial, they may nevertheless be considered/ admissible while adjudicating a bail application in NDPS cases. 28. That the above submissions and suggestions are submitted keeping in mind the sophisticated modus operandi adopted by the masterminds of narcotic and trafficking syndicates. Furthermore, reliance is being placed on the decision of this Hon'ble Court in Union of India v. Vigin K. Varghese reported as 2025 SCC OnLine SC 2440 and also on Supreme Court Legal Aid Committee (Repres....
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....nting bail/suspension of sentence, in cases under NDPS involving commercial quantity to accused foreign national to provide two sureties for grant of bail. (Note-Alternatively, this Court may consider whether it should be left to the discretion of the Court to ask for one or two sureties while granting bail. 1.8 DRI has suggested that amount of Cash/ Personal Bond should be commensurate with the severity of crime or percentage of seizure value of narcotics in the case. This suggestion seeks to tie the Cash/ Personal Bond to the "severity of crime or percentage of seizure value of narcotics.". AMICUS NOTE - It would be appropriate and in consonance with precedents of this Court, to issue "Direction to Courts granting bail/suspension of sentence to foreign nationals accused in cases under NDPS involving commercial quantity may impose appropriate surety amount to seek to ensure that accused does not flee from justice upon release." 1.9 Directions be issued to Courts to ensure that the declared place of residence of the Foreign National Accused in bail bond, in cases under NDPS involving commercial quantity in India, is verified not later than 3 working days ....
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....all attend court hearings and shall abstain from committing any further offences. The embassy/ consulate of country of which accused is a citizen, may also be requested by the Court granting bail, to share details of the accused available with them and to intimate the Court granting bail, whenever the accused approaches them for any consular services. 1.16 Directions be issued to Courts to ensure compliance of Section 129 of BNSS, 2023 while granting bail to Foreign national Accused in cases under NDPS involving commercial quantity 1.17 Directions be issued to Union of India to consider a specific provision to be incorporated in NDPS Act to enable the execution bond in terms of Sec. 34 of NDPS Act at the pre-conviction stage or at the time of granting bail. 1.18 Direction be issued to Ministry of Electronic and Information Technology and Ministry of Home Affair, to formulate guidelines/ frame rules for use of Geo-fencing Technology, if viable, to ensure that accused do not violate conditions of Bail vis-à-vis geographic limitations. 1.19 Direction to be issued to the Unique Identification Authority of India in terms of Good Governance (Soc....
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....ctions to be issued to the Unique Identification Authority of India, Ministry of Road Transport Highway, Reserve Bank of India and Revenue Departments of State Governments/Union territories, to issue necessary circular/directions so that information on Aadhaar, M-Parivaahan, Bank Account details, Land Registry Records maintained online by Registrar are accessible through the aforesaid online portal for real time verification. 2.5. Directions to be issued to Ministry of Home Affairs to revise FORM 47 of the BNSS, 2023 with relevant legislative amendment to incorporate enhanced disclosures, biometric linkage, and declarations regarding previous surety engagements, & provide for penal consequences for false statements. 2.6. Directions be issued to High Courts and Judicial Academies to provide structured training to Courts within their on the socio-economic impact of surety-based bail in cases under NDPS involving commercial quantity to accused foreign national, and its impact for indigent undertrials, and judicial academies ought to incorporate dedicated modules on bail jurisprudence, & financial vulnerability of foreign national Accused accused/convicts in custody i....
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....t from the employing entity/ firm/ company; (iii) Claimed business activities, if any, and (iv) Existence of bank account mentioned by the sureties, from the concerned banks, should invariably be carried out before the release of the accused on bail Yes This suggestion is merely a restatement of law and procedure. What is more important is to ensure that the same should attract proportionate consequences for the erring officials. Yes (for this purpose, the investigating agency may coordinate with the jurisdictional police station) Yes (by investigating agency within 3 working days of furnishing bail bond. This verification report be placed by the investigating agency no later than three days before the court where bail bond was furnished.) 9. Placing verification of accused and surety before the trial court before the release of the accused. Yes This suggestion is merely a restatement of law and procedure Yes - 10. Accused should furnish complete and verified contact details, including a valid mobile number, to the investigating agency and shall promptly report any change therein and registered mobile number should remain active....
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....hallenged. Yes Unjust and unreasonable Yes - 19. Reference of cases involving foreign national "Fast Track Court". Yes -- Yes - 20. In appropriate cases, Courts may consider electronic surveillance methods and GPS tagging of the foreign national accused to ensure continued presence within jurisdiction. Yes Geo-fencing rather than constant monitoring Yes Yes with modification, use of geo-fencing technology if viable 21. Biometric details, including iris recognition of foreign nationals, should be captured by the investigating agency and integrated with LEAs, BOI/FRRO database with the immigration system. Yes (after consultati on with concerned ministry and relevant agencies viz. MHA and BOI/ FRRO) Violation of Article 21 Yes - 22. A centralized database containing details of all foreign nationals arrested under NDPS Act by all concerned enforcement agencies may be created and made accessible to all agencies. Yes (via existing NIDAAN portal upgrade) Yes Yes Yes (via NIDAAN portal, especially for repeated offenders) 23. The term 'Long incarceration' may be defined and the same should be r....
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....rtmental enquiry. - Yes - - 32. Direction can be issued to RBI to issue appropriate circular to all banks to link fixed deposit or bank account of concerned surety to bail bond and create lien on bail bond amount Yes - 33. Direction for Registrars of all High Courts to create digital infrastructure/portal for courts to access and verify financial and property credentials for authentication of documents/information of surety. - Yes - - 34. Directions to the Unique Identification Authority of India, Ministry of Road Transport Highway, Reserve Bank of India and Revenue Departments to issue necessary circular/directions so that information on Aadhaar, M-Parivaahan, Bank Account details, Land Registry Records maintained online by Registrar are accessible through the aforesaid online portal for real time verification. - Yes - - 35. Directions to Ministry of Home Affairs to revise FORM 47 of the BNSS, 2023 with relevant legislative amendment to incorporate enhanced disclosures, biometric linkage, and declarations regarding previous surety engagements, with penal consequences for false statements. - ....
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....of this Court in Supreme Court Bar Assn. v. Union of India (1998) 4 SCC 409, best explain the power, as under: "47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no d....
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.... (Cri) 734] but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject." (emphasis supplied) In other words, sparing use is the governing principle. Why it is so, is obvious. It is so because legislating is not within the Court's domain in view of the separation of powers, which is a recognised feature of the basic structure of the Indian Constitution [Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225]. At the same time, it is well recognised that it is perfectly within the judicial domain to step in when the need arises, and the same remains in force until a law in that regard has been enacted by the Parliament. Let us look to past instances. 26.1 Perhaps the most famous example would be Vishakha v. State of Rajasthan (1997) 6 SCC 241 wherein while adj....
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....uss Vineet Narain (supra) here. That case, though, originally concerned the inertia of the Central Bureau of Investigation in conducting investigations, but later evolved to have a much wider scope. More than the facts of the case, though, or the individual directions, the discussion of Article 142 is instructive for our purposes: "49. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role... ... 51. In exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases and a brief reference to a few of them is sufficient. In Erach Sam Kanga v. Union of India [WP No. 2632 of 1978 decided on 20-3-1979] the Constitut....
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....man rights; and (c) to administer the law impartially among persons and between persons and the State." Thus, an exercise of this kind by the court is now a well-settled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field." 26.4 Common Cause v. Union of India (2018) 5 SCC 1, is a Constitution Bench judgment of this Court where passive euthanasia was recognised as permissible. The Court issued directions under Article 142 for the issuance of advance directive which, it was held, could be issued by an adult of a healthy state of mind, laying down the procedure to be followed in unambiguous terms for the possibility that, at a point of time in future, medical treatment to them should be withheld or withdrawn. 26.5 In Directions in the Matter of Demolition of Structures, In re (2025) 5 SCC 1, a co-ordinate Bench was dealing with writ petitions filed by persons aggrieved of their commercial/residential properties being demolished without following due process of law. It was held that the Court had a duty to put to rest the fears of members of....
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....f the parties opposes it " ...to do "complete justice" to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified....". 27. All of the instances above make it abundantly clear that this Court has on various occasions exercised this power and done so across different areas of law and also in cases across jurisdictions. Throughout, it has been clear that this Court is putting in place stop-gap arrangements, leaving it open for the legislative wing of the Government to step in as and when it deems fit. It could be argued that in the present case the justification for invocation of Article 142 is difficult for the reason that each State/High Court does have a process in place. So, is there indeed a gap in which this power could be exercised? While we acknowledge that such a view is possible, we are also aware that despite these processes being in place, cases such as the present one have arisen, giving rise to unfortunate circumstances where the accused has fled. Now, although, in this case t....
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.... 104 (Three Judge Bench)]. A three-judge Bench of this Court in Sarbananda Sonowal v. Union of India (2005) 5 SCC 665, restated this position of law as follows: "79. In State of Arunachal Pradesh v. Khudiram Chakma [1994 Supp (1) SCC 615] following Louis De Raedt [(1991) 3 SCC 554 : 1991 SCC (Cri) 886], it was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on international law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under international law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in political activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the inte....
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....shall have the right to make an application to the concerned Court seeking release thereof, enabling him to travel, either domestically or internationally as the case may be subject to such conditions as may have been imposed by the concerned Court including the requirement of express permission before travelling outside the territorial jurisdiction of the Court. Whenever an accused makes an application for release of passport, the same has to be decided expeditiously, in a time-bound manner i.e., preferably within four weeks from the date of application. 28.2 The Foreigners Regional Registration Office (FRRO) is an office under the Ministry of Home Affairs, Government of India that is tasked with the regulation of foreigners in India, including their stay and travel. Registration with this office immediately/soon after release from prison furnishes relevant information to this department, updating them that a particular person has been accused of a crime of serious nature. Accordingly, the department will be able to address any issue pursuant to the requests that may be received by it from such an individual in future. This would also be regarding visa extension, etc. All parti....
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....ccused where he is purported to be staying after release on bail, must necessarily be verified by the police authorities upon the accused securing an order of bail in his favour. This ensures verification of the latest address, as provided, proximate to the release, and the same be placed before the Court. The accused is also required to provide a valid phone number to the Court in the surety bond (as given below in Para 28.26) signed by him. This is also to be verified by the authorities. This number, which must be kept active at all times, is the primary source of contact that the authorities will have with the accused in order to secure his presence, as and when required. 28.7 One of the suggestions by the entities is that the accused be required to, weekly, mark his presence in the jurisdictional police station and report to the investigating officer. It is difficult to mandate the same across the board. The Courts seized of the matter are the best suited to determine the frequency of presence before itself or before the authorities for it is them, who have interacted with the accused and have a first-hand understanding of the circumstances and behaviour of the accused. 2....
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..... Be that as it may, the investigating officer of a particular crime shall inform the Consulate/Embassy of the country of origin of the accused that they are an accused in an offence, so that they may be aware of the proceedings against one of their citizens in the country and may even be able to provide them with consular services if required. 28.13 Those cases in which a foreign national is an accused should be taken up by the concerned Court on priority. It is undisputed that crime of this nature is on the rise and as such the urgency to deal with such matters is justified, sending across a message of deterrence to the world in as much as the drug trade in India is concerned. 28.14 All three entities suggest that electronic surveillance methods (gps-tagging/geo-fencing) should be considered for a foreign national accused, to ensure their continued presence within the jurisdiction. In our view, the introduction thereof cannot be done through judicial decision-making and requires consideration of all relevant aspects by the Legislature, which may, in light whereof and after due consideration of the judgments of this Court in Frank Vitus supra, frame rules in that regard. Fur....
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....n that departmental enquiries be initiated against persons who were involved in the verification of sureties upon the discovery that they were fake, is a suggestion that merits acceptance, for the process of verification conducted by these officials is the bedrock on which the Court accepts the same and eventually releases the accused. If it is found on the same set of evidence as verified by these officials that, in fact, the details were fake or false, responsibility should be imputed upon them. It has to be said, however, that the standard of care that these officials are required to abide by can be only 'reasonable' and not unduly 'strict'. 28.20 As suggested, a digital portal for the verification of financial and property credentials of sureties appears to be expedient. It will add a layer of protection to that part of the surety verification process that has been directed to be done physically, and it will create a speedy mechanism for that part of the process which does not require physical effort on the part of the authorities. 28.21 Judicial Academies should provide training to judges regarding its impact and aspects of financial vulnerabilities and access to justice....
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....: "BOND AND BAIL-BOND FOR ATTENDANCE BEFORE OFFICER IN CHARGE OF POLICE STATION OR COURT (FOR FOREIGN NATIONALS IN NDPS CASES - COMMERCIAL QUANTITY) (See Sections 478, 479, 480, 481, 482(3) and 485) I, __________(Full Name of Accused), Nationality:__________, Passport No.(date of issuance and date of expiration):________________, Issued by: ____________(Country name), Visa Details:__________(date of issuance and date of expiration), Resident of:_______________ (Complete Permanent Address Abroad), currently residing at _________ (Complete address in India) and Contact Details i.e., Phone No.________________, having been arrested or detained without warrant by the Officer-in-Charge of __________________Police Station/Investigating Authority, (or having been brought before the Court of ___________________), and having been charged with the offence under Section(s) __________________of Narcotic Drugs and Psychotropic Substances Act, 1985 involving __ substance and being a commercial quantity of ___ weight, and being required to give security for my attendance before such Officer or Court that I shall attend before the said Officer or Court on every day on which ....
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.... shall promptly inform the Court, the Investigating Officer of the concerned agency, and the concerned Embassy, of any change in my residential address, mobile number, or other contact details. 4. That I shall report periodically to the concerned Police Station, FRRO or Embassy or any other authority, as may be directed by this Hon'ble Court from time to time. 5. That I shall, within the time granted by this Hon'ble Court, file an affidavit disclosing my source of funds, income, and particulars of bank accounts, if any, operated by me in India, and shall cooperate in any lawful verification thereof. The same shall be communicated to the concerned Investigation agency. 6. That I shall not directly or indirectly induce, threaten, or promise any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Investigating Officer of the concerned agency or, nor shall I tamper with the evidence or interfere with the course of justice in any manner whatsoever. 7. That I shall not commit any offence, of similar nature, during the pendency of the present case and shall conduct myself in a lawful and r....
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....uaintance with accused: __________ k) Whether you have stood surety in any other case/s, if any: l) ☐ No ☐ Yes (details of accused, case no., court & amount): m) Whether any surety bond executed by me has ever been forfeited: ☐ No ☐ Yes (details of accused, case no., court & amount): ______________ n) Whether any application for suretyship by me was rejected earlier: ☐ No ☐ Yes (details of case no., court & amount along with reason rejection):_________ o) Whether you have ever been accused/convicted in any criminal case: ☐ No ☐ Yes (details): __________________________ p) Any other relevant particulars regarding income/assets including liabilities (for example loans, mortgages, personal guarantees, insolvency or bankruptcy proceedings): _____________________ 3. Documents Filed: S.No. Documents to be furnished (No. 1, and any 2 documents from documents No.2 to 5 1. Aadhaar Card (along with locker copy) 2. PAN Card, if any (along with Digi locker copy) 3. Passport if any (along with Digi locker copy) 4. ....
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....urt. Concomitantly, the Court may place a restriction upon the accused's ability to travel outside the country without its prior permission; (ii) The accused so released on bail shall register within one week of release with the Foreigners Regional Registration Office (FRRO) and inform, in writing to the investigating officer as also the concerned Court of having made such registration; (iii) The FRRO, in consultation with the relevant departments of the Government, shall cause to be made and implemented a portal for the purpose of direction no.(ii); (iv) An accused foreign national shall mandatorily produce two sureties of like amount to secure bail. If the concerned Court is of the considered view, upon it being so demonstrated to them, that despite sufficient effort it has become difficult/impossible to secure two sureties, the concerned Court may relax this condition by way of a written order recording reasons; (v) The process of verification of sureties shall, in all cases, be done within 3 days, and the verification report be placed before the Trial Court prior to the release of the accused. If this timeline is not followed, the reasons the....
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....d after Form 47 of BNSS 2023. Suggestions 30. We have, above, issued several directions. There are yet some other aspects which we find to be deserving consideration by the relevant authorities and taking steps in pursuance thereof as may be warranted. The following are those suggestions: (i) True it is that the co-ordinate Bench of this Court in Moti Ram (supra) the concept of professional sureties was equated with touts and looked at with a general view of disdain, however we are of the view that one of the hallmarks of the Indian Constitutional system is its openness to adopting evolved views and not being stuck to those taken in the past conditions upon the fact that the latter view is also firmly rooted in constitutional moorings. As such, in certain cases, possibly, professional sureties may be the only answer. We had asked Mr. Raju, learned ASG, and Mr. Luthra to explore this aspect. They have, after an in-depth study, informed us that as such no rules exist in this regard. In that view of the matter, they have furnished draft rules which we have studied, analysed and amended as is suitable, as given in Annexure I. The introduction of the professional....
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....ge) Rules, 2020 [SWIK Rules]. (vi) The Ministry of Home Affairs may consider whether the NDPS Act, 1985, be included in the list of statutes mentioned under Section 129 of the BNSS 2023, whereby the Executive Magistrate may require an offender residing within the jurisdiction to execute a bond for good behaviour. (vii) Judicial Academies should provide training to judges/judicial officers regarding the interrelationship of social and economic realities, especially financial vulnerabilities, with access to justice, when it comes to surety-based bail. 31. Let a copy of this judgment be sent to the Secretary, Department of Law and Justice, Government of India, and to the Chief Secretaries of all the States and Union Territories for necessary follow-up action. Let the same also be sent to the Registrars General of the High Courts, who shall ensure its onward circulation to the Trial Courts for compliance. 32. Let a copy of this judgment also be sent to the Chief Justice, High Court of Judicature at Bombay, through the Registrar General, and the DGPM, to determine action, if any, that needs to be taken against the officials of the concerned Trial Court, both judi....
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.... Extent, and Commencement.- These Rules may be called the Professional Bail Bondsperson (Regulation) Rules, 2026. 2. Definitions.- (1) In these rules, unless the context otherwise requires- (a) "Bail" has the same meaning as in Sections 436, 437, 437A 438 and 439 Code of Criminal Procedure, 1973 ("CrPC") and Sections 480, 481, 482, 483, 484 and 485 of Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") and "suspension of sentence" has the same meaning as in Section 389 of CrPC and Section 430 of BNSS or in any special or local law for the time being in force in India; (b) "Bond Amount" and "surety amount" means the amount fixed by the police officer or court for bail and surety or "suspension of sentence", in terms of Sections 88, 389, 437, 437A, 438, 439, 441 of CrPC and in any provision for the grant of bail, by a Court or investigating officer, in any special or local law for the time being in force in India [Sections 91, 480, 481, 482, 483, 484, 485 and 487 of BNSS, 2023] and in any provision for the grant of bail or "suspension of sentence", by a Court or investigating officer, including in any special or local law for the time being in force in India;....
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....al Crime Records Bureau (NCRB) and State Police. d) State Legal Services Authorities shall act as State Implementing Authorities, and District Legal Services Authorities shall act as District Verification Units. CHAPTER III: STATE BAIL BONDSPERSON REGULATORY AUTHORITY 4. Constitution of State Bail Bondsperson Regulatory Authority.- (1) Each State Government and Union Territory Administration shall, vide a notification, constitute a State Regulatory Authority consisting of the following members- i. A Chairperson being a person who has before his or her retirement, worked as a Judge of the High Court, to be nominated by the Chief Justice of concerned High Court; ii. A Vice-Chairperson being a person who has before his or her retirement from service, worked as a Sessions or Additional Sessions Judge for at least 10 years in that State or Union Territory, to be nominated by the Chief Justice of concerned High Court; iii. A police officer, nominated by the Director General of Police, not below the rank of Inspector General of Police or officer of equivalent rank in the State or Union Territory; iv. A representative of the State Legal Se....
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....SS. 7. Eligibility.- An individual applying to secure a license for Bail Bondsperson under these Rules shall- i. be a citizen of India; ii. possess such educational qualifications and professional competence as may be prescribed by the State Regulatory Authority; iii. be a solvent individual; iv. be of sound mind; and v. satisfy the Authority as to his or her integrity, reliability, and fitness to act as a professional surety; 8. Disqualification.-The following persons shall not be entitled to apply for license- i. Serving police officers, Serving prison officers, Serving judicial officers, Serving prosecutors, Serving court staff, or any other person exercising control over prisoners as may be prescribed by the NALSA; ii. persons convicted of an offence involving fraud, dishonesty, moral turpitude, or with any offence punishable with imprisonment of one year or more; iii. persons whose license has been previously revoked under these Rules; and iv. any other person or category of persons as may be declared to be unfit by the NALSA or State Legal Services Authority or State Regulatory Authority by....
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.... render the application liable to rejection; or (b) where a license has already been granted, render such license liable to cancellation, and shall, in either case and in addition, render the applicant liable to criminal prosecution under the relevant provisions of the BNS. Explanation- For the purposes of this sub-rule, a fact shall be deemed to be "material" if its disclosure would reasonably have affected the decision of the State Bail Bondsperson Regulatory Authority to grant, to refuse, or to impose conditions upon, the license. 10. Registration.- (1) Once compliance with the Regulations provided for herein is established and verified along with other conditions as may be prescribed by the State Regulatory Authority, such Authority shall issue to each individual bail bondman a Unique Surety License Number (USLN); (2) Each Bail Bondsperson having USLN issued hereinunder, shall provide such number in each surety form signed by them. Such forms are enclosed as Annexure II. 11. Security bond, guarantee and fiduciary accounts.- (1) Every Licensed Professional Bail Bondsperson must furnish and maintain, in favour of the State Regulatory Authority, a con....
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.... prescribed. CHAPTER V: DUTIES AND OBLIGATIONS OF BAIL BONDS PERSON 13. Duties of Professional Bail Bondsperson.-Every licensed professional bail bondsperson shall- (a) ensure the appearance of the accused before the court all dates as may be required, and take all reasonable steps for that purpose; (b) explain the conditions of the bail to the accused in a language understood by the accused, and obtain an acknowledgment to that effect in the language of the accused and of which he/she comprehends the meaning thereof; (c) comply strictly with conditions imposed under the CrPC, BNSS or any other special law that might be applicable and with every direction issued by the Court; (d) maintain accurate, contemporaneous, and verifiable records of all bonds executed; (e) maintain records of any expenses along with verifiable bills incurred in performing duties accrued upon him; (f) promptly inform the court and investigating agency of any apprehended breach of bail conditions and of any change in the circumstances of the accused that comes to the knowledge of the bondsperson; (g) at the time of executing any bond, the....
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.... in respect of every sum so received. 16. Collateral and security.- a) Collateral accepted by a Bail Bondsperson or a Bail Bond Business Entity shall be proportionate to the bond amount. b) Transfer of title of movable or immovable property as a condition for bail is prohibited. c) Collateral shall be held in trust and returned immediately upon discharge or exoneration of the bond together with any document of title or instrument deposited in connection therewith. 17. Liability, forfeiture and recovery.- a) Forfeiture of bail bonds shall be governed by the provisions of the BNSS or CrPC. b) Any recovery from the accused or the indemnitor shall be limited to the amount of the bond, together with such reasonable and documented expenses as may have been actually and necessarily incurred, and shall not include any penal or speculative charge. CHAPTER VI: SPECIAL PROVISIONS FOR FOREIGN NATIONALS 18. Special provisions for foreign nationals.- a) No bail bond in respect of an accused of a non bailable offence, who is a foreign national, shall be executed by a Licensed Professional Bail Bondsperson save with the express p....
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.... MAINTENEANCE OF RECORDS 21. Record-keeping.-Every Licensed Professional Bail Bondsperson shall preserve all records, including copies of executed bonds, client files and verification disclosures, at a secure place for such period as may be prescribed, and shall be obliged to produce such records as and when required under these Rules. 22. Audit and inspection.-The State Bail Bondsperson Regulatory Authority may, through any officer authorised by it in this behalf, conduct inspections and audits of any Licensed Professional Bail Bondsperson, and every such bondsperson shall afford to the authorised officer all reasonable facilities and access to records for the purpose of such inspection or audit. 23. Regulation not in derogation of any other law.-The provisions of this Regulation shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force. SURETY BOND IN THE COURT OF ____________________________ Case / FIR No.: ____________________ Police Station: ____________________ Offences under: ____________________ State vs. __________________________ I, _____________(full name of Surety as per Surety License....
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....se issued under the Professional Bail Bondsperson (Regulation) Rules, 2026 2. Aadhaar Card (along with Digi locker copy) 3. Bank Account statement certified by concerned bank manager (Scheduled Public Sector Banks, Scheduled Private Sector Indian Banks and Cooperative bank or Regional Rural Banks) 4. Court Order granting permission to execute this Professional Bond [Only applicable for Foreign National] o. I declare that no illegal gratification or unauthorized consideration outside the regulated fee structure in terms of the Professional Bail Bondsperson (Regulation) Rules, 2026 has been exchanged for standing as professional surety. p. I declare that I have no familial, professional or financial conflict of interest with the presiding judge, the prosecutor or the investigating officer of the case in which the accused has been charged. q. I shall ensure the presence of the accused before this Hon'ble Court as and when required. r. I undertake to immediately inform the Court if I learn that the accused is attempting to abscond or is acting in violation of any bail condition/s. s. I consent to verification of my identity....