Himachal Pradesh High Court
Theophilus Ndubulsi Nwosu vs State Of Himachal Pradesh on 24 June, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 411 of 2020 Reserved on: 19.06.2020 Date of Decision: 24.06.2020 .
Theophilus Ndubulsi Nwosu ...Petitioner.
Versus State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 YES.
For the petitioner: r Mr. Lalit Kumar Sehgal, Advocate.
For the respondent: Mr. Ashok Sharma, Advocate General, assisted by Mr. Nand Lal Thakur, Additional Advocate General, for the State.
Anoop Chitkara, Judge An under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 21 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for selling 20.5 grams of heroin (Diacetylmorphine).
2. Based on a First Information Report (FIR), the police arrested the petitioner, on 12.12.2019, in FIR No.159 of 2019, dated 7.12.2019, registered under Sections 21 & 29 of the NDPS Act, read with S. 201 of Indian Penal Code, 1860, (IPC), in Police Station, Bhawarna, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offenses.
3. Earlier, the petitioner filed a petition under Section 439 CrPC before learned Special Judge, Kangra at Dharamshala, HP. However, vide order dated 29.01.2020, the Court dismissed the petition, on the grounds that upon noticing the Police, the accused had run for a 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 2kilometer, before the Police caught him. Thus, the apprehension of the prosecution qua non-availability of the bail-petitioner can safely be said to be well-founded. There is a risk of fleeing from Justice, coupled with the fact that he was the main supplier of drugs. Before .
proceeding further, this Court would like to clarify that the story of Police qua chasing and nabbing prima facie appears to be a setup. It is quite unbelievable that they will be able to chase and catch a young African Male, that too on busy Delhi roads, especially when he was more accustomed to Delhi streets.
4. I have read the status report(s) and heard counsel for the parties.
Mr. Lalit Kumar Sehgal, Advocate for the petitioner handed over a photocopy of a certificate dated 11th March 2020, issued by High Commissioner, High Commission of Nigeria, New Delhi, INDIA, which reads as follows:
" TO WHOM IT MAY CONCERN IDENTIFICATION: MR. NWOSU THEOPHILUS BDUBUISI I am directed to confirm that Mr. Nwosu Theophilus Ndubuisi is a bonafide citizen of Nigeria; his Passport No.A09188779 was issued on 23 rd August 2018 and will expire on 22nd August, 2023.
2. The High Commission requests kind assistance for all his transactions and communications.
3. Warm regards.
-sd-
Horsfall, Jacob Atannu For High Commission New Delhi, India"
5. Mr. Nand Lal Thakur, Learned Additional Advocate General, based upon instructions, stated that this certificate is genuine.
FACTS:
6. The allegations in the First Information Report and the gist of the evidence collected by the Investigator are:::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 3
a) On 7th December 2019, the Police party was on patrolling duty and erected a barricade as a routine. At 7.15 a.m., one bus of HRTC came from the side of Bhawarna. The .
police party signaled the bus to stop, and after it came to a halt, started checking the bus and the passengers.
b) When the police party reached the last seat, two persons sitting there became uneasy, which raised suspicion in the mind of the Investigating Officer that they have some stolen property. After that, the Police associated the Driver and Conductor of the bus as independent witnesses. In their presence, the Police checked the bag, which the passenger sitting on seat No.44 was carrying on his lap. On opening it, the Police recovered handkerchief and one transparent polythene pouch containing a brown colored substance. The Police took out the said substance and tested it with the help of Narcotic Drugs Detection Kit, which showed that the substance tested positive for heroin. On inquiry, the said person revealed his name as Nitin Kumar.
c) The person sitting on seat No.43 revealed his name as Jayant Kumar. He confessed to the Police that this heroin belongs to him. After that, the cops weighed the said Heroin on Electronic Weighing Machine, and it measured 20.5 grams. Subsequently, the Police repacked the heroin in the same manner and sealed the same in the main bag. After that they conducted other procedural formalities under the NDPS Act and CrPC. Subsequently, the Police arrested the accused.
d) During the interrogation, these two accused Nitin and Jayant told the investigator that they had purchased the substance from Delhi, and they have done so many times. In Delhi, one person named Moksha sells substance to him, who further buys it from one Nigerian.
::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 4e) On receipt of this information, Police constituted a Special Investigation Team and proceeded towards Delhi. On reaching Delhi, the Police interrogated the said Moksha @ Parikshit, who told the Police that he had purchased the .
drugs from one Nigerian National, whose name is Mark. The modus operandi was that Moksha would contact Mark on his phone number, and once the deal is struck, Mark would deliver the drugs to Moksha near the Metro pillar of Dwarika Metro Station. Mark would tell Moksha the Pillar number, at which point they would strike a deal.
f) After that, Police made Moksha call the Mark, and after negotiations, Mark conveyed that he will deliver the substance near pillar 720 of Dwarika Metro Station. On reaching there, Mark, on realizing the Police's presence, ran, and after chasing him for about one kilometer, the Police was able to catch him. During this chase, Mark threw away his mobile and the contraband somewhere, which the Police could not recover. On further investigation, Mark revealed his name as Theophilus Ndubulsi Nwosu, the bail petitioner herein.
g) Subsequently, he was arrested and after completing the procedural requirement brought to Himachal and sent to Judicial custody.
PREVIOUS CRIMINAL HISTORY
7. As per the affidavit filed by the wife of the petitioner, a case is pending before Special Judge, NDPS Act, Tis Hazari Court, registered vide FIR No.263/2018, under Section 21 of the NDPS Act, Police Station, Civil Lines.
SUBMISSIONS:
8. The learned counsel for the bail petitioner submits that the allegations are false and concocted.
9. On the contrary, Mr. Ashok Sharma, Advocate General, contends that the investigating officer has collected sufficient prima facie ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 5 evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to stringent conditions.
ANALYSIS AND REASONING:
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10. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under a Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
11. While dealing with the bail applications of foreign nationals, the most significant challenge the Courts face is to secure their presence. Code of Criminal Procedure, 1973, (CrPC), has classified two types of offenses, bailable and non-bailable. Section 2(a) of the CrPC defines bailable offenses shown as the offences listed as 'bailable' in the First Schedule of CrPC or any other law. All the left-out crimes are deemed to be Non-bailable. In bailable offences, a Police officer is under an obligation to release the accused on bail, subject to their furnishing bail bonds. It means that even a foreign national cannot be denied bail in a bailable offence. Therefore, the question of securing their presence is not an absolute condition. However, in heinous and bone-
chilling crimes, all which certainly are non-bailable, the presence of the accused must be ensured by the Courts, before granting the bail. Thus, while dealing with bail petitions of accused who are not the citizens of India, one of the most important parameters to keep in mind is the gravity of the offense.
12. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 6 falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
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13. In the present case, the quantity of substance seized is less than the commercial quantity. Therefore, the bail application stands on different parameters and is similar to bail petitions under regular statutes.
JUDICIAL PRECEDENTS:
14. In Lachhman Dass v. Resham Chand Kaler, (2018) 3 SCC 187, Supreme Court holds, "10. ...The law under section 439 Cr.P.C is very clear and in the eye of the law every accused is the same irrespective of their nationality."
14. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, a Constitutional bench of Supreme Court holds in Para 30, as follows, It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail
15. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court holds:
" "Bail or jail ?" - at the pre-trial or post-conviction stage - belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 7 principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust .
exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Article 21 are the life of that human right.
2. The doctrine of Police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution."
16. ...The delicate light of the law favours release unless countered by the negative criteria necessitating that course.
16. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three-member bench of Supreme Court holds, "18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 8 the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for .
enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so."
17. Given the above reasoning, and keeping in view the quantity of contraband, in my considered opinion, the judicial custody of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
a) As per the FIR, the substance involved is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances. The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.
b) The petitioner is in judicial custody since 12.12.2019.
c) The investigation is complete and the report under section 173(2) CrPC stands filed.
d) The petitioner is a Nigerian National, holding a Passport of Nigeria, bearing Passport No. A09188779. The State has already verified from the concerned Embassy about the genuineness of the Passport.
18. As a result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing a personal bond in the sum of INR 1,55,000/, (INR One hundred and fifty-five thousand only), to the satisfaction of the trial Court, by depositing it in the official account, as per the details and directions of the trial Court. The petitioner shall ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 9 also furnish one surety in the sum of INR 5000 (INR Five thousand only), to the satisfaction of the trial Court. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:
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a) The concerned Court shall keep the Original Letter issued by the concerned Embassy in the file.
b) The petitioner shall give details of Passport Number, Visa number, phone number(s) (if available), WhatsApp number (if available), e-mail (if available), personal bank account(s) (if available), on the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents.
c) The Petitioner shall not leave India without the prior written approval of the Trial Court.
d) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the Passport number with details, email of the petitioner, and WhatsApp number, if any.
e) The petitioner shall not influence, threaten, browbeat, or pressurize the complainant, witnesses, and the Police official(s).
f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
g) Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 10
h) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.
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i) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail.
j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail.
k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.
l) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
m) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall ::: Downloaded on - 24/06/2020 20:21:47 :::HCHP 11 take into account that even earlier, the Court had cautioned the accused not to do so.
n) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-
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mail accounts, within 10 days from such modification, to the police station of this FIR, and also to the concerned Court.
o) The petitioner shall deposit his passport, if not already seized by the Police.
p) The petitioner shall, within ten days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location always on the "ON" mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned SHO/I.O.
q) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for the State to apply for cancellation of this bail order.
r) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner, and even the concerned Court shall be competent to cancel the bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.
s) The learned counsel for the petitioner, as well as the attesting officer, shall explain the conditions of this bail to the petitioner.
::: Downloaded on - 24/06/2020 20:21:48 :::HCHP 1219. I have arrived at the amount mentioned above of bond money by converting the annual per capita income of Nigeria, and after converting it in INR and rounding it upwards. As per https://data.worldbank.org/, the per capita GDP of Nigeria is 2028 .
USD, per annum. As per https://www1.oanda.com/currency/converter/, 1 USD equals INR
75.9180. Thus, the bail amount of personal bonds comes by multiplying it with rate of rupee to USD. This Court makes it clear that these are not guidelines to arrive at the bonds and its value.
20. The logic behind furnishing personal bonds with bank deposits is that we know that Africans hardly have any relatives in India. Even their friends are just acquaintances, and it would be impossible for them to produce the bail petitioner before Court, even if they stand as sureties. When foreign nationals are asked to furnish surety bonds, then the sureties retain at least 100% of the bond amount as security to take care of proceedings under Section 446 of CrPC. However, even after the trial is over, it is practically impossible for the accused to recover the money unless the surety turns out to be an honest person. Even in such a situation, what is returned is the Principal amount, without any interest. It has led to a racket of surety providers in exchange for money. Therefore, the purpose of surety bonds has become an exercise in futility, and the better option is to keep the security deposit.
21. On receipt of the money in the official account, the Trial Court shall issue directions to appropriate Court and all concerned, to keep this amount in an automatically renewable fixed deposit, to be opened in any bank, owned or controlled by the Centre, State or their units. In case any orders are passed under Section 446 CrPC, then the bail amount shall be dealt with as per such directions. After the completion of the Trial, and the period specified in S. 437-A, and subject to the directions of the Appellate Courts, if any, all this money, along with interest, except taxes, shall be refunded to the ::: Downloaded on - 24/06/2020 20:21:48 :::HCHP 13 petitioner, by transferring in his bank account, whether in India or outside, following the law.
22. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any .
situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be; such Court shall also be competent to modify or delete any condition.
23. The officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in English.
24. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on her/his furnishing bail bonds in the terms described above.
25. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
26. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.
27. Although the Court has granted bail in favour of accused, still neither the issue comes to an end, nor do the terms of justice. In the interest of equity and fair play, the matter needs further consideration. Given the following reasoning, this Court is requesting the Trial Court to expedite the trial.
28. Every visitor to our country comes for a specific purpose and for a limited time. However, if during the period of their stay, they get arraigned as an accused in a criminal case, then they get stuck up here. It may be traumatic to them, and to their education, family, friends, business, and number of things, which an ordinary human being cannot even imagine. The answer lies in the speedy disposal of cases of foreign nationals, whether they are in custody or on bail.
::: Downloaded on - 24/06/2020 20:21:48 :::HCHP 1429. Mr. Ashok Sharma, Learned Advocate General, assisted by Mr. Nand Lal Thakur, Additional Advocate General, submits that a few Foreign Nationals, while in India, deal in substance trade.
30. The solution to this lies not in denying bail. It lies in verifying the .
antecedents of these types of suspects, before approving or granting Visa, and once accused in substance abuse, then revoking the Visa. Synergy of law with technology is the next big thing.
31. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
32. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same.
33. In return for the freedom curtailed by the State for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior.
34. The petition stands allowed in accordance with the terms mentioned above.
(Anoop Chitkara),
June 24, 2020(ps) Judge.
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