HC expounds Expiry of Visa cannot be used as an impediment in the grant of bail [Read Judgment]

06 Jan 2022

By : Ayesha

The Single Bench of High Court of Himachal Pradesh, Shimla consisting of Justice Satyen Vaidya opined that the ground of expiry of Visa cannot be used as an impediment in grant of bail to the petitioner.

Facts

Petitioner was an accused in case registered at Police Station, Kullu, u/s 21 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985, Section 14 of the Foreigners Act and Section 420 of the Indian Penal Code. Petitioner was arrested on 29.5.2021 and is presently in judicial custody.

Contentions Made

Appellant: Petitioner has prayed for grant of bail under Section 439 CrPC. on the grounds that she is innocent and has not committed any offence. Her implication in the case is false. The investigation is already complete, and Challan stands filed in the Court of learned Special Judge. Petitioner has undertaken that she will not make any inducement, threat, or promise to any other person acquainted with the facts of the case. She has further undertaken to abide by all the conditions, as may be imposed for grant of bail in her favour.

Respondent: On 28.5.2021, the house of one Niknain, son of Ravinder Kumar was searched based on secret information, regarding his involvement in retail sale of heroin from his residential house. On search, 50 gms. of heroin was recovered from his house. On interrogation, he disclosed that he had purchased 60 gms. of heroin from petitioner out of which 10 gms. was sold to Jiwan @ Jawan. It is further alleged against petitioner that she is a foreign national. The Visa on which she had entered India has expired on 25.2.2021. It is also alleged that by using the application of petitioner for extension of Visa, some other person has been unlawfully benefited. On such allegations, Section 14 of Foreigners Act and Section 420 of IPC have also been added.

Observations of the Court and Judgment

The Bench observed that:

“Petitioner is citizen of Kenya, and her Visa is stated to have expired on 25.2.2021. This factor cannot be used as an impediment in grant of bail to the petitioner.”

It further observed that:

“The quantity of contraband i.e., 50 gms. of heroin allegedly recovered from co-accused of petitioner is less than commercial quantity. Petitioner has been implicated under Section 29 of NDPS, Act and hence the rigors of Section 37 of said Act will not be applicable in the facts of the case. As per the case of respondent, the contraband was recovered from the house of co-accused Niknain. It is only based on the version given by said Niknain that the petitioner has been implicated. It is also alleged that there had been phone call between the petitioner and her co-accused Niknain before registration of FIR, but no details have been provided have to stay back for the purposes of the trial may be at the risk of legal consequence of her overstay.”

Judgment

The petitioner was ordered to be released on bail subject to following conditions:

Petitioner shall not leave India. She shall surrender her passport before learned trial Court, if not already submitted before any other authority and the release of her passport will be subject to outcome of the trial.
Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with prosecution evidence.
Petitioner shall provide her mobile number, if any, at Police Station Kullu.
Petitioner shall not delay the trial of the case and shall regularly attend the hearings, except in circumstances beyond her control.
Upon her re-indulging in criminal activities, it shall be open to the respondent, to move this Court for cancellation of bail.