The Delhi High Court has held that a foreign national cannot be detained and denied benefits of Section 445 Cr.P.C. on mere expressed by the prosecution that the accused may flee the course of justice.
The single-judge bench of Justice Anoop Kumar Mediratta 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 on the above basis.
The application was filed under Section 445 read with Section 482 Cr.P.C for modification of bail order and for direction to release the applicant on furnishing personal bond.
The petitioner is facing trial for possession of controlled substance Section 9A/25A of the Narcotic Drugs And Psychotropic Substances Act, 1985.
Counsel for the petitioner submitted that the case is at the initial stage of prosecution and the petitioner is in custody since about 2 years and 8 months. Further, the petitioner is unable to discharge her obligation of furnishing even reduced surety bond being a foreign national and has not been able to avail the benefit of bail despite repeated modifications by this Court.
It was submitted on behalf of the petitioner that 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.
Senior Standing Counsel opposed the petition and submitted that the possibility of petitioner fleeing the course of justice cannot be ruled out, in case she is released on furnishing of cash in lieu of surety.
The Court while noting that benefits of Section 445 Cr.P.C. cannot be denied on the contention of the prosecution, said:
"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 Court added.
The Court opined that 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. It referred to Gudikanti Narasimhulu & Ors Vs. Public Prosecutor, High Court of Andhra Pradesh, 1977 Latest Caselaw 228 SC
Noting tha the case doesn't involve the serious embargo of the NDPS Act, remarked that the petitioner, who is a woman and a foreign national, cannot be forced to undergo incarceration till the conclusion of trial merely because she is unable to furnish a local surety bond.
To meet the end of justice, the Court observed it is important to extend the benefits of Section 445 Cr.P.C. to the petitioner.
The application was thus allowed.
Case Title: NASTOR FARIRAI ZISO vs NCB
Case Details: Crl. M.A. No.4032/2022 in BAIL APPLN. 1960/2020
Coram: Justice Anoop Kumar Mediratta
Read Order Here:
Share this Document :Picture Source : YouTube.com
