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2021 (10) TMI 1281 - HC - Indian LawsIllegal detention of applicant - Magistrate rejected the contention by holding that the question of custody of the Applicant being illegal, no longer survived as he was already remanded to judicial custody on 09.03.2021 by the Special Court - HELD THAT - The judgment in the case of Suaibo Ibow Casamma 1993 (7) TMI 97 - HIGH COURT OF JUDICATURE AT BOMBAY clearly covers the position of law in favour of the Applicant, because in almost identical circumstances, this Court not only entertained the bail application, but allowed the same on the specific ground of violation of the rights available to the Applicant under Articles 21 and 22 of the Constitution. Hence, it is found that the Applicant is entitled for grant of bail on the sole ground raised in the present application. But, at the same time, this Court cannot be oblivious of the fact that the Applicant is alleged to be involved in serious offences under the NDPS Act. The reply filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and pending against him pertaining to the offences under the NDPS Act. Therefore, stringent conditions need to be imposed, even if bail is granted to the Applicant. In this context, in a number of bail applications filed before this Court by foreign nationals, particularly pertaining to offences under the NDPS Act, submissions have been made on behalf of the prosecution that such accused persons do not have valid passports and visas. They deliberately carry no papers to ascertain their identities. Most of such accused persons are repeat offenders. They do not disclose their genuine and correct identities and when they are apprehended, they give fictitious names to the investigating authorities, thereby further complicating the cases. As a result, after they are granted bail, it is extremely difficult to ensure their presence to face trial. They also further indulge in criminal activities concerning offences under the NDPS Act. In the present case, the Applicant has stated in the present bail application at paragraph 9 that he is a Nigerian and that he has lost his Nigerian passport. This itself shows that the respondent no.2 is justified in expressing the apprehension that the applicant is also adopting the said modus operandi of deliberately destroying documents of identity like passport and then committing crimes by suppressing and changing identities. Therefore, appropriate stringent conditions need to be imposed while allowing the present application. The Applicant shall be released on bail on furnishing PR bond of ₹ 1,00,000/- and a surety in the like amount, and other conditions imposed - application allowed.
Issues Involved:
1. Violation of rights under Articles 21 and 22(2) of the Constitution of India. 2. Legality of detention and arrest timing. 3. Entitlement to bail based on alleged constitutional violations. 4. Applicability of precedents and judicial interpretations. Detailed Analysis: 1. Violation of Rights under Articles 21 and 22(2) of the Constitution of India: The Applicant claimed that his detention violated Articles 21 and 22(2) of the Constitution, which mandate that an arrested individual must be produced before the nearest Magistrate within 24 hours. The Applicant argued that he was detained from 6:25 p.m. on 07.03.2021 and was not produced before the Magistrate until 09.03.2021 at 10:00 a.m., thus exceeding the 24-hour requirement. 2. Legality of Detention and Arrest Timing: The Applicant's counsel supported the claim by referring to the panchanama dated 07.03.2021, which indicated that the Applicant was taken into control at 6:25 p.m. on 07.03.2021. The counsel argued that the Applicant was detained from that moment, despite the Respondent's claim that the arrest occurred at 5:30 p.m. on 08.03.2021. The Court examined the panchanama and concluded that the Applicant was indeed detained from 6:25 p.m. on 07.03.2021, as his movements were controlled and he was taken to the Police Station. 3. Entitlement to Bail Based on Alleged Constitutional Violations: The Applicant's counsel argued that the violation of Articles 21 and 22(2) entitled the Applicant to bail, citing the case of Suaibo Ibow Casamma vs. Union of India, where bail was granted under similar circumstances. The Court agreed, noting that the Applicant had raised the issue of constitutional violations in his bail application on 08.03.2021, which was not properly addressed by the Magistrate or the Special Court. 4. Applicability of Precedents and Judicial Interpretations: The Respondents relied on the judgment in Pragyna Singh Thakur vs. State of Maharashtra, arguing that the Applicant's right under Article 22(2) did not survive after being remanded to judicial custody. However, the Court found that subsequent Supreme Court judgments in Union of India vs. Nirala Yadav and M. Ravindran held that the right to bail could not be extinguished by subsequent judicial orders if the application was made timely. The Court emphasized that the Applicant's detention from 6:25 p.m. on 07.03.2021 constituted a violation of his constitutional rights, warranting the grant of bail. Conclusion: The Court granted bail to the Applicant on the grounds of violation of Articles 21 and 22(2) of the Constitution, imposing stringent conditions due to the seriousness of the NDPS Act offences and the Applicant's criminal antecedents. The conditions included furnishing a PR bond, producing a valid passport and visa, and regular reporting to authorities, among others. The Court also directed that the trial proceed on merits without being influenced by the bail grant.
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