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TMI Blog2024 (7) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... of furnishing certificate of the embassy - HELD THAT:- Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence, the Court will have to delete the condition. If the Embassy/High Commission records reasons for denying the certificate and the reasons are based on the adverse conduct of the accused based on material, the Court can always consider the reasons recorded while considering an application for dispensing with the condition. Coming to the facts of the case, bail has been granted to the appellant firstly on the ground that the appellant has been implicated based on statements recorded under Section 67 of the NDPS Act, and that such statements are entirely inadmissible in view of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu [ 2020 (11) TMI 55 - SUPREME COURT ]. So, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreigners, 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 foreigneraccused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required; Prima facie, we are of the view that none of the Embassies/High Commissions may be able to give assurances as mentioned in Clause (iv). The question is whether we need to refer this case to a larger Bench for reconsideration of Clause (iv). Another condition imposed by the High Court reads thus: they shall drop a PIN on the google map to ensure that their location is available to the Investigation Officer of the case;... The question is whether this condition will offend rights of the accused under Article 21 of the Constitution of India. We request Mr. Vinay Navare, learned Senior Advocate to assist us as amicus curiae on both the issues. Registry to provide a complete set of paper book to the learned Senior Counsel as well as a copy of this order. List on 14.08.2023. 3.1. We have heard Shri Vinay Navare, the learned senior counsel appointed as Amicus Curiae, Shri Varun Mishra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under subsection (1), the [Court shall impose the conditions, (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.] (4) 4.1 In this case, we are concerned with the offences under the NDPS Act which are punishable with imprisonment of seven years or more. The provision relating to bail is contained in Section 37 of the NDPS Act, which reads thus: 37. Offences to be cognizable and nonbailable. (1) Notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowered to impose the conditions as provided in Section 437(3) of the Cr. PC. While dealing with the condition which can be imposed while granting anticipatory bail, this Court, in the case of Munish Bhasin v. State (NCT of Delhi) (2009) 4 SCC 45 , held thus: 10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. (emphasis added) 7. A broader meaning cannot be assigned to the words interest of justice in Section 437(3) of Cr. PC. By borrowing the language used by this Court in the above decisions, we can say that the bail conditions cannot be fanciful, arbitrary or freakish. The object of imposing conditions of bail is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here circumstances require, the Court may impose a condition restraining an accused from entering a particular area to protect the prosecution witnesses or the victims. But the Court cannot impose a condition on the accused to keep the Police constantly informed about his movement from one place to another. The object of the bail condition cannot be to keep a constant vigil on the movements of the accused enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21. If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. Such a condition cannot be a condition of bail. 8. In view of subsection (2) of Section 441 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Google Maps app or through a web browser, the user dropping the PIN may opt to get directions to the location, mark the location with a label, add a business address to the location, or share the location with another user. 8. The PIN identifies and marks a specific location of the user s choosing on Google Maps. The PIN need not be dropped at the location where the user/the user s device is located at the time of sharing the PIN. The PIN dropped and shared need not be the realtime location of the user sharing the PIN. 9. Google Maps allows users to share information, such as the PIN, with third parties. This is explained in Google s privacy policy, which is available at https:policies.google.com/privacy?hI=enUS, and shares as follows: Many of our services let you share information with other people, and you have control over how you share [emphasis supplied] . Users consent to the privacy policy when they create a Google Account. In this case, if a user wants to share a PIN, they can do so by clicking on the share button. This generates a link to Google Maps that the user can share with others through messaging platforms or other modes of online communication. When clicked, the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt Legal Aid Society to file this petition under Article 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that such an invidious distinction between similarly situate undertrials who are citizens of this country and who are foreigners may not be permissible under the Constitution and even if priority is accorded to the cases of foreigners it may have the effect of foreigners being permitted to jump the queue and slide down cases of citizens even if their cases are old and pending since long. Counsel immediately realised that such a distinction if drawn would result in cases of Indian citizens being further delayed at the behest of foreigners, a procedure which may not be consistent with law. He, therefore, rightly sought permission to amend the cause title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 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 writin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in light of what is held in paragraph 15. Therefore, it is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a certificate of assurance from the Embassy/High Commission should be incorporated. It will depend on the facts of each case. 12. Even if such a condition is incorporated, on an application made by the accused, the concerned Embassy/High Commission declines or fails to issue the certificate within a reasonable time, say within a period of seven days, the Court always has the power to dispense with the said condition. Grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, as explained above, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence, the Court will have to delete the condition. If the Embassy/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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