Jerry Akubueze Nwama v. State, NCT of Delhi

Delhi High Court · 30 Jan 2023 · 2023:DHC:822

Jasmeet Singh

BAIL APPLN. 948/2022

2023:DHC:822

criminal appeal_allowed Significant

AI Summary

The Delhi High Court granted bail to a foreign national accused under the NDPS Act after prolonged pre-trial detention, emphasizing the constitutional right to speedy trial and procedural safeguards under the Act.

Full Text

BAIL APPLN. 948/2022
HIGH COURT OF DELHI
Date of Decision: 30.01.2023

BAIL APPLN. 948/2022
JERRY AKUBUEZE NWAMA @ SOLO @ SOLOMON AKUBUEZE NWAMA ..... Petitioner
Through: Mr. Anoop Kr. Gupta, Ms. Gunjan Gupta, Advs.

VERSUS

STATE, NCT OF DELHI ..... Respondent
Through: Mr. Aashneet Singh, APP Insp. Somil Sharma, PS Special Cell

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH : JASMEET SINGH, J (ORAL)

JUDGMENT

1. This is an application filed seeking grant of bail in Case SC NO. 9312/2016 arising out of the FIR No. 52/2015 dated 09.09.2015 registered at PS Special Cell (SB) under Section 21 of the NDPS Act read with Section 14 of the Foreigners Act.

2. It is stated by Mr. Gupta, learned counsel for the applicant that the applicant was caught with 590 grams of heroin, which is commercial quantity. It is further stated by Mr. Gupta, learned counsel that this is the only case against the applicant and he has clean antecedents. It is also stated that the applicant has been in jail since 09.09.2015 i.e. about 7 years and 5 months.

3. The prosecution evidence is still going on and thereafter the defence evidence is to be led.

4. It is further stated by Mr. Gupta, learned counsel that in the present case, at the time of arrest, there were no public witnesses. The proceedings were not videographed and the search is alleged to have been conducted before the ACP.

5. Mr. Singh, learned APP while opposing bail states that the last prosecution witness is left to be examined and 14 witnesses have already been examined. He further states that the respondent is a foreigner and in case he is convicted subsequently, there will be no way of finding him.

6. Mr. Singh, learned APP further states that every compliance of Section 50 has been made as the search was conducted before the ACP.

7. I have heard learned counsel for the parties.

8. Admittedly, the applicant has been in jail since 09.09.2015 which is more than 7 years and 5 months.

9. The Hon‟ble Supreme Court in “Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) vs. Union of India” [(1994) 6 SCC 731] in para 15 and 16 has held:-

“15. ….. He, therefore, rightly sought permission to amend the cause-title and prayer clauses of the petition which was permitted. In substance the petitioner now prays that all undertrials who are in jail for the commission of any offence or offences under the Act for a period exceeding two years on account of the delay in the disposal of cases lodged against them should be forthwith released from jail declaring their further detention to be illegal and void and pending decision of this Court on the said larger

ARORA issue, they should in any case be released on bail. It is indeed true and that is obvious from the plain language of Section 36(1) of the Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those prosecuted for the commission of any offence under the Act. It is equally true that similar is the objective of Section 309 of the Code. It is also true that this Court has emphasised in a series of decisions that Articles 14, 19 and 21 sustain and nourish each other and any law depriving a person of “personal liberty” must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. See Hussainara Khatoon (IV) v. Home Secy., State of Bihar [(1980) 1 SCC 98: 1980 SCC (Cri) 40], Raghubir Singh v. State of Bihar [(1986) 4 SCC 481: 1986 SCC (Cri) 511] and Kadra Pahadiya v. State of Bihar [(1983) 2 SCC 104: 1983 SCC (Cri) 361] to quote only a few. This is also the avowed objective of Section 36(1) of the Act. However, this laudable objective got frustrated when the State Government delayed the constitution of sufficient number of Special Courts in Greater Bombay; the process of constituting the first two Special Courts started with the issuance of notifications under Section 36(1) on 4-1-1991 and under Section 36(2) on 6-4-1991 almost two years from 29-5-1989 when Amendment Act 2 of 1989 became effective. Since the number of courts constituted to try offences under the Act were not sufficient and the appointments of Judges to man these courts were delayed, cases piled up and the provision in regard to enlargement on bail being strict the offenders have ARORA had to languish in jails for want of trials. As stated earlier Section 37 of the Act makes every offence punishable under the Act cognizable and non-bailable and provides that no person accused of an offence punishable for a term of five years or more shall be released on bail unless (i) the Public Prosecutor has had an opportunity to oppose bail and (ii) if opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and is not likely to indulge in similar activity. On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569: 1994 SCC (Cri) 899]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 ARORA SCC (Cri) 93], release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. What then is the remedy? The offences under the Act are grave and, therefore, we are not inclined to agree with the submission of the learned counsel for the petitioner that we should quash the prosecutions and set free the accused persons whose trials are delayed beyond reasonable time. Alternatively he contended that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on such terms as this Court ARORA considers appropriate to impose. This suggestion commends to us. We were told by the learned counsel for the State of Maharashtra that additional Special Courts have since been constituted but having regard to the large pendency of such cases in the State we are afraid this is not likely to make a significant dent in the huge pile of such cases. 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 fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum ARORA imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

17,565 characters total

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;

(ii) the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered ARORA under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause (iii), unless leave of absence is obtained in advance from the Special Judge concerned;

(iii) the benefit of the direction in clauses (ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;

(iv) in the case of undertrial accused who are foreigners, the

Special Judge shall, besides impounding their passports, insist 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 ARORA 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.

16. We may state that the above are intended to operate as onetime directions for cases in which the accused persons are in jail and their trials are delayed. They are not intended to interfere with the Special Court's power to grant bail under Section 37 of the Act. The Special Court will be free to exercise that power keeping in view the complaint of inordinate delay in the disposal of the pending cases. The Special Court will, notwithstanding the directions, be free to cancel bail if the accused is found to be misusing it and grounds for cancellation of bail exist. Lastly, we grant liberty to apply in case of any difficulty in the implementation of this order.”

10. The Coordinate Bench of this Court in Bail Application 1724/2021 dated 21.03.2022 titled „Anil Kumar @ Nillu vs. State‟ has held:-

“12. A bare perusal of paragraph 16 indicates to this Court that the directions were not meant to be employed as one-time directions in the said case, but were meant to apply as a onetime measure in all cases in which the accused persons were in jail and their trials had been delayed. The intention of paragraph 16 was to convey that despite the absence or presence of delay in trial in a case, the Special Court was still free to exercise its power to

ARORA grant bail under Section 37 of the NDPS Act. Furthermore, if the Special Court also retained the power to cancel bail if the accused was found to be misusing the same. The directions were certainly not, as the learned APP has submitted, meant to only apply in the case therein, but were directions that were to be followed by Courts in all cases pertaining to NDPS wherein the accused had been subjected to prolonged delay in their trials.

13. It is unconscionable to state that the rights guaranteed under Article 21 can be subjected to such arbitrary categorisation and would not apply across the board to all undertrials in NDPS cases who are at the receiving end of inordinate delay in trial.”

11. Both the judgments have been followed by this Court in “Gurmito vs. Central Bureau of Investigation” in Bail Application 1621/2022 dated 20.07.2022.

12. According to me, speedy trial is an intrinsic part of Article 21 of the Constitution of India and denial of the same itself, is a ground for bail in certain circumstances and conditions. The minimum punishment prescribed under Section 21 of the NDPS Act is 10 years and the applicant has already undergone about 75 % of the same.

13. In addition, the Hon‟ble Supreme Court in “Vijaysinh Chandubha Jadeja vs. State of Gujarat” [(2011) 1 SCC 609] has held:- “32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the ARORA nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”

14. Admittedly, in the present case, there is nothing on record to show that that any endeavour was made by the respondent in trying to produce the applicant before the nearest Magistrate.

15. The same has been opined by the Hon‟ble Supreme Court as elucidated in the aforementioned precedents to add transparency and creditworthiness to search proceedings.

16. In addition, the learned APP has argued the bail application and hence, there is sufficient compliance of Section 37 of the NDPS Act.

17. For the aforesaid reasons, prima facie it appears that the applicant has not committed the offence that he is charged with.

18. In this view of the matter, the applicant is directed to be released on bail subject to the following terms and conditions:i. The applicant shall furnish a personal bond and two sureties in the sum of Rs. 1,00,000/- each, to the satisfaction of the Trial Court; ii. The applicant shall, immediately on his release, re-validate his visa within 10 days from the date of his release and inform the I.O. regarding the same and shall also file the same with the Trial ARORA Court; iii. The applicant shall also furnish a certificate of assurance to the satisfaction of the Trial Court issued by the Embassy of the applicant‟s country; iv. The applicant shall report to the local Police Station once in every week; v. The applicant shall appear before the Court as and when the matter is taken up for hearing; vi. The applicant shall also drop his google pin location to the I.O. concerned which shall be kept active throughout the period of his bail; vii. The applicant shall provide his mobile number to the Investigating Officer (IO) concerned, which shall be kept in working condition at all times. The applicant shall not switch off, or change the same without prior intimation to the IO concerned, during the period of bail; viii. The applicant shall join investigation as and when called by the I.O concerned; ix. The applicant shall provide his permanent residential address and in case the applicant changes his address, he will inform the IO concerned and this Court also; x. The applicant shall not leave the country without permission of the Court during the bail period and surrender his passport, if any, at the time of release before the Trial Court; xi. The applicant shall not indulge in any criminal activity during the bail period; ARORA xii. The applicant shall not communicate with, or come into contact with any of the prosecution witnesses, or tamper with the evidence of the case.

19. This order be also communicated to the Bureau of Immigration.

20. The application stands disposed of in the aforesaid terms.

Jerry Akubueze Nwama v. State, NCT of Delhi

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation