Delhi High Court - Orders
Habibullah Nabi Zada vs N.C.B on 2 May, 2024
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2645/2022
HABIBULLAH NABI ZADA ..... Petitioner
Through: Mr Gautam Khazanchi and Mr
Vinayak Chawla, Advocates.
versus
N.C.B. ..... Respondent
Through: Mr Subhash Bansal, SPP with Mr
Shashwat Bansal, Advocate for NCB.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
ORDER
% 02.05.2024 CRL.M.A. 9773/2024
1. The present application has been filed seeking modification of the order dated 26.02.2024, whereby the petitioner was granted regular bail. The modification has been sought to the effect that the petitioner be permitted to furnish a Personal Bond of Rs.25,000/- with cash surety of Rs.25,000/- in lieu of Personal Bond of Rs. 50,000/- and Surety Bond of Rs. 50,000/-, to the satisfaction of the Jail Superintendent.
2. Learned counsel for the petitioner submits that the petitioner is a foreign national and has not been able to arrange for a surety and urges the Court that the petitioner may be released on furnishing a Personal Bond in the sum of Rs.25,000/- and cash surety of Rs.25,000/-.
3. In support of his contention, learned counsel has placed reliance on the decision of this Court in Nastor Farirai Ziso vs. NCB: 2022 SCC OnLine Del 1024.
4. He further submits that the petitioner being a foreign national has not been able to arrange for surety as he has no contact in India and he had This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/05/2024 at 21:16:25 visited India for the first time when he was arrested at the airport.
5. Per contra, learned SPP for the NCB submits that the petitioner is a foreign national and in the event he does not to furnish a Surety Bond, there is a likelihood that he may flee from justice. He invites the attention of the court to an averment made in the bail application that the petitioner is ready to furnish a sound surety.
6. I have heard the learned counsel for the petitioner, as well as, the learned SPP for the NCB and perused the record.
7. It is a matter of record that the petitioner was granted bail by this Court vide order dated 26.02.2024 but he has not been able to avail the benefit of the said order only because of the condition that he was required to furnish a Surety Bond in the sum of Rs.50,000/-.
8. It is also a matter of record that the petitioner came from Afghanistan to India on 28.12.2019 and he was arrested at the airport itself, therefore, there appears to be some substance in the submission that the petitioner does not know anybody in India and for that reason he is not in a position to arrange for the surety bond.
9. Further a Coordinate Bench of this Court in Nastor Farirai Ziso (supra) has observed that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of Section 445 CrPC is denied to a foreign national. It was also observed that an apprehension that a foreign national may flee from justice may still theoretically persists even in a case where surety bond is furnished and the liability of surety is only to the extent of amount mentioned in the surety bond. The relevant observations of the Court reads thus:
"7. It has been submitted on behalf of the petitioner that This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/05/2024 at 21:16:25 applicant has contacted Embassy of Zimbabwe multiple times but has not been able to obtain surety and she does not know anyone in this country, who can discharge the obligation of surety. It may be observed that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of Section 445 Cr.P.C. is denied to a foreign national merely on the ground that a foreign national is likely to escape, if released on bail. This would lead to incarceration of accused for an unlimited period till conclusion of trial even despite being granted the discretion of bail by the courts. A mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Cr.P.C. without consideration of other circumstances and balancing factors in this regard. This apprehension may still theoretically persist even in a case where surety bond is furnished but the liability of surety is only to the extent of amount mentioned in the surety bond. The aforesaid apprehension of the accused fleeing from the course of justice was appropriately kept in consideration while passing the orders on bail and imposing the other conditions on the petitioner of informing her address to NCB on being released on bail. The petitioner was also directed to report to NCB office once in a week till conclusion of trial and not to leave the limits of NCT of Delhi without prior permission of the trial court. The passport of the applicant is also stated to have been seized. Further, denying deposit of cash in lieu of surety in all such cases may become punitive effecting the bifocal interest of justice to the individual involved as well as the society."
10. Section 445 CrPC gives discretion to the court to require a person who is released on bail to be so released by executing a bond with or without sureties.
11. While granting bail to the petitioner this Court had observed that the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/05/2024 at 21:16:26 rigors Section 37 of the NDPS Act would not apply in view of the law laid down by the Hon'ble Supreme Court in Rabi Prakash vs. State of Odisha:
2023 SCC OnLine SC 1109 considering the fact that the petitioner has already spent about 04 years 04 months in custody. Needless to say that once the petitioner has been granted bail by this Court he cannot be kept in custody for an indefinite period only for the want of a surety bond. There are other bail conditions as well in the order dated 26.02.2024 which can ensure the availability of petitioner to face the trial and to receive the punishment, in the event he is eventually found guilty.
12. For the reasons detailed above, the condition of furnishing a Surety Bond is waived and it is directed that the petitioner be released on his furnishing a Personal Bond of Rs.25,000/- with cash surety of Rs.25,000/-, to the satisfaction of the Jail Superintendent.
13. Insofar as the remaining conditions mentioned in para 27 of the order dated 26.02.2024 are concerned, the same shall continue to be in force and it is directed that within one week from the date of his release, the petitioner shall furnish a compliance affidavit in respect of such conditions, before the learned Trial Court.
14. With the aforesaid modifications, the application is disposed of.
VIKAS MAHAJAN, J MAY 2, 2024/MK This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/05/2024 at 21:16:26