Wernli Mnonika Barbara vs State
2005 Latest Caselaw 847 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. Mr Malhotra, the learned Additional Solicitor General submits that the affidavit has been filed with regard to the policy of the Central Government concerning terminally ill under-trials who are foreign nationals. The entire affidavit is relevant and, accordingly, the same is reproduced hereinbelow:

"1. In pursuance to the orders of this Hon'ble Court in the instant case, the issues were considered by this Ministry through an inter-Ministerial meeting which was attended by the senior officers of the Ministry of Home Affairs, DG, Tihar Jail, representatives of Ministry of Health and Family Welfare as well as Law Officer of Prayas (an NGO), West Delhi.

2. After detailed deliberations, a general view was that the Government should move a prayer before the Hon'ble Court opposing grant of bail to Ms. Wernly Monika Bara on the following grounds:-

(i) In an earlier similar case an Ugandan national Dorothy Namirumu was released on bail sometime in September 1998. She has not yet returned to face trial after her treatment;

(ii) There are sufficient facilities in the jail premises and other hospitals for providing medical treatment to the HIV patients;

(iii) If we grant bail in such cases, HIV patients or persons suffering from similar other terminal diseases may be used by drug mafia as there carriers to indulge in drug trafficking activities.

3. Further, Ministry of Home Affairs is examining in consultation with the concerned authorities to prepare a uniform model code to address the problems of similar nature. While doing so, it would be examined if agreements can be signed with the other countries as has been done with United Kingdom under Repatriation of Prisoners Act, 2003, to transfer such patients to their countries for undergoing remaining period of imprisonment after trial is over. Such exercise will require time as this involves consultations with Governments of other countries through Ministry of External Affairs. It is prayed that Hon'ble Court may grant at least one year time to complete the whole process of preparing a composite model code keeping in view the seriousness of the crime committed and humanitarian angle associated with it. Ministry will report back to the Hon'ble Court after one year."

Without commenting on the grounds mentioned and in particular ground (iii) in paragraph 2 above, it is heartening to note that the Central Government is alive to the situation and the problems as mentioned in paragraph 3 of the said affidavit. Since the Central Government has asked for one year's time to formulate the entire policy with regard to the problem in consultation with the Governments of other countries, it would be appropriate to treat this part of this case as a Public Interest Litigation and place the same before the appropriate Bench dealing with such matters subject to the orders of the Hon'ble Chief Justice. This matter be placed before the said Bench on 25th May, 2005 before the appropriate Bench in the first instance.

2. Now, coming to the merits of the present case. The case of the prosecution is that the present petitioner in conspiracy with other co-accused including one Mr Brett was attempting to smuggle out contraband from India. It is alleged that there is a recovery of 450 grams of Heroin and 8.2 Kg. of Hashish. The entire recovery is said to have been made from the checked in baggage of Mr Brett. Admittedly, no recovery has been made from the present petitioner. She was, however, said to be accompanying the said Mr Brett. The peculiar circumstance of this case is that the said Mr Brett pleaded guilty before the Court and in view of this plea of guilt he has been convicted and sentenced to ten years rigorous imprisonment plus Rs 1,00,000/- fine. He is presently in jail undergoing the sentence. It was, however, further stated by the said Mr Brett that he alone was responsible for the contraband. Therefore, according to the counsel for the petitioner, since the person responsible and guilty of the offence under the NDPS Act has already pleaded guilty and has been convicted, there are good grounds to show that no offence is made out against the present petitioner. He further submitted that the petitioner is a patient of HIV Aids and is terminally ill. She is a Swiss national and just because she is a foreigner, she cannot be denied the grant of bail on the plea that she will flee from this country. He further submitted that officials of the Swiss Embassy can stand surety for the petitioner to ensure that she does not leave the country during the period of trial.

3. Mr Malhotra opposed the grant of bail on two counts. Firstly, he submitted that there is every likelihood of the present petitioner fleeing from justice and of leaving the country. He also submitted that the recovery is of a commercial quantity and, therefore, the rigours of Section 37 of the NDPS Act would come into play. In this view of the matter, he submitted that the petitioner ought not to be released on bail only on humanitarian grounds and in support of this contention, he cited the decision of Union Of India v. Ram Samujh and Another reported in 1999 (3) CC Cases (SC) 22. He drew the attention of the Court particularly to paragraphs 7 and 8 of the judgment and indicated that the Supreme Court held that the persons accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37 namely, (i) there are reasonable grounds for believing that accused is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail, are satisfied. He, therefore, submitted that merely on humanitarian grounds, the accused under the NDPS Act would not be entitled to bail when the provisions of Section 37 are attracted. He further submitted that the petitioner was being treated at Dr Ram Manohar Lohiya Hospital in compliance with the directions given by this Court and by a letter dated dated 2nd May, 2005, the Additional Medical Superintendent of the said hospital has stated that the petitioner is now fit for discharge from the hospital and, therefore, the Superintendent of the concerned jail was requested to make arrangement for taking back the patient from the hospital. A copy of that letter dated 2nd May, 2005 was shown to me. Mr Malhotra also submitted that instead of granting bail to the petitioner the Court could direct that the trial be expedited and concluded, say, within sixty days.

4. Mr Tiku who appears for the petitioner submitted that although no recovery was made from the present petitioner, since Section 29 of the NDPS Act has also been pressed into service by the prosecution, even if it is admitted that Section 37 of the NDPS Act comes into play, there are reasonable grounds for believing that the offence was not made out against the present petitioner. He submitted that the most important circumstance was the plea of guilt by the co-accused who pleaded guilty alone. He further submitted that there is no antecedent history of the present petitioner in connection with NDPS related offences. In fact, he submits that there are no criminal antecedents of the present petitioner. He also submits that the Court may impose any condition to ensure that the petitioner does not leave the country during the period of her trial.

5. The Supreme Court in a recent judgment in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another: 2005 AIR SCW 2215 had occasion to consider Section 21(4) of the Maharashtra Control of organized Crime Act, 1999. That provision is in pari materia with the provisions of Section 37 of the NDPS Act and, in connection therewith, the Supreme Court observed as under:-

"45. The Act is deterrent in nature. It provides for deterrent punishment. It envisages three to ten years of imprisonment and may extend to life imprisonment. Death penalty can also be imposed if somebody commits a murder. Similarly fines ranging between three to ten lakhs can be imposed.

46. Presumption of innocence is a human right (See Narendra Singh and another v. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefore. Sub-section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of sub-section (4) of Section 21 must be given a proper meaning.

47. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

48. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose.

49. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organized crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite means rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."

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"55. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the actecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

56. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been grnated or denied the privilege of bail.

57. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby."

Considering the observations of the Supreme Court, if the Court is satisfied that in all probability the accused ultimately may not be convicted, an order granting bail may be passed. It is further observed by the Supreme Court that the satisfaction of the Court as regards the likelihood of not committing an offence while on bail must be construed to mean an offence under the Act (here, the NDPS Act) and not any offence whatsoever be it a minor or major offence.

6. Considering these factors and noting the fact that the co-accused has pleaded guilty and taking upon the entire blame, there are reasonable grounds for believing that the petitioner is not guilty of the offence. There is also nothing to show that there is a likelihood of the petitioner committing such an offence while on bail. There are no criminal antecedents of the present petitioner. Therefore, in my view, the mandatory provisions of Section 37 of the NDPS Act for the grant of bail, have been satisfied. In addition to this, on humanitarian grounds also, the petitioner is entitled to bail.

7. Accordingly, the petitioner is directed to be released on bail on her furnishing a personal bond in the sum of Rs. 1,00,000/- with two local sureties in the like amount to the satisfaction of the concerned Court. The Swiss Embassy shall also give an undertaking that the petitioner shall not leave the country. The passport is already with the State. It is also in the interest of the prosecution that the trial be concluded as expeditiously as possible, preferably within sixty days.

8. The application stands disposed of.

dusty.