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Supreme Court tightens bail for foreign nationals in commercial NDPS cases: mandatory passport deposit, two sureties
The court directed that the process of verification of sureties shall be done within 3 days, and the verification report shall be placed before the trial court prior to the release of the accused on bail.
The Supreme Court on Monday tightened the regime for grant of bail to foreign nationals caught with commercial quantities of drugs by ordering mandatory deposit of passports, two sureties for securing release and departmental proceedings against police, court officials and revenue staff in the event the sureties turn out to be fake.
A bench of justices Sanjay Karol and Augustine George Masih passed the order while dealing with a bail cancellation plea filed by Centre against a Nigerian national who was found to be an active member of a drug trafficking syndicate and who went absconding after details of surety and his local contact furnished by him turned to be fake.
Realising the gap in the system which permits foreign nationals to defy the justice delivery system, the top court suggested a slew of reforms aimed at expediting proceedings under the Narcotics Drugs and Psychotropic Substances Act (NDPS) against foreign nationals and introducing a stringent mechanism for their release on bail.
The bench said, “Considering the fact that we are concerned with cases involving commercial quantities of narcotics and psychotropic substances which have various unpleasant and unwelcome effects on the country, we are of the view that depositing of passport is justified as being mandatory.” The order said that the concerned court will be at liberty to impose travel restrictions on such accused.
The bench further made it mandatory for foreign offenders seeking bail in such cases to furnish two sureties instead of one, and directed the Ministry of Law and Justice along with the National Informatics Centre (NIC) to create a centralised database where all particulars of each individual, both accused and those who stand as a surety for foreign nationals accused in NDPS cases, shall be entered. At the same time, the order stated that the trial court may relax the ‘two sureties’ condition by giving a reasoned order if the condition appears difficult or impossible to be achieved.
To avoid a situation as happened in the case before the court where the accused went absconding by furnishing false sureties, the bench said, “When sureties, purportedly verified, are later discovered to be fake, all officials concerned (police, court officials and revenue officials) with the verification process shall face a departmental inquiry for dereliction of duty.”
The court directed that the process of verification of sureties shall be done within 3 days, and the verification report shall be placed before the trial court prior to the release of the accused on bail. The foreign offenders shall also be required to file an affidavit before the trial court indicating source of income/funds within India and also give details of all bank accounts, if any, in the country.
The court even introduced stringent conditions on persons standing surety for such accused by directing that every time a person stands as surety in favour of a foreign national accused, “a lien/charge equal to the amount of the surety bond” shall be created on their property, that may include immovable property as well. “In case of violation of the condition imposed, the concerned court may, in the attending facts and circumstances of each case, direct the realization of such lien,” the order said.
The court was assisted by senior advocate Sidharth Luthra as amicus curiae along with advocate Sana Hashmi in passing these orders along with additional solicitor general (ASG) SV Raju appearing for Centre and investigating agencies. Both DRI and the Union government were in favour of introducing stringent conditions for releasing foreign nationals caught in NDPS cases.
The accused in the present case, Chidiebere Kingsley Nawchara, was arrested in March 2023 in connection with seizure of 4,935 grams of heroin from the possession of a person at the Chhatrapati Shivaji Maharaj International Airport, Mumbai. The passenger was travelling to India from Ethiopia and was instructed to pass on the consignment to a lady who in turn revealed to the police that the seized contraband was to be delivered to Nawchara.
The court made it clear that its directions are only meant to cover cases involving foreign nationals accused in a case involving commercial quantity under the NDPS Act. Even the high courts were directed to create a digital portal for speedy verification and authentication of property and finance documents to be considered while giving surety.
Besides the directions, the court suggested to the Centre to consider the concept of professional sureties and attached draft rules prepared and vetted by the amicus and ASG Raju for the executive to consider even for the limited purposes pertaining to foreign nationals in NDPS cases.
Further suggestions also included creation of human resources in each district court for verification of sureties usually done by the investigating officer, development of a Surety Information Management System (SIMS) across all States for effective storage and management of information, exploring Aadhaar authentication procedures for surety verification, and feasibility of an offender under NDPS to execute a bond for good behaviour under NDPS.
The court directed a copy of the judgment to be sent to Centre and all states and union territories and urged Judicial Academies to provide training to judges and judicial officers regarding the interrelationship of social and economic realities, especially financial vulnerabilities, with access to justice, when it comes to surety-based bail.
