UNION OF INDIA Vs. CHIDIEBERE KINGSLEY NAWCHARA AND OTHERS

The Appeal

Orders Passed by this Court

Analysis And Consideration

The NDPS Act- Scheme & Relevant Provisions

Bail under Special Statutes

Prevention of Money Laundering Act, 2002

Unlawful Activities Prevention Act, 1967

Narcotic Drugs and Psychotropic Substances Act, 1985

Principles Regarding the Grant of Bail to Foreign Nationals

Applying the understanding to the Present Facts and Cancellation of Bail

The Issue Regarding Sureties

Factual Matrix : Non-existence of Sureties

Indian Statutory Position and Comparative International Perspective

Inputs by the Amicus Curiae, Agencies and the Appellant

Power of this Court to issue Directions under Article 142

OUR VIEW

Analysing The Inputs - and Our Opinion Thereupon

Directions

Suggestions

Annexure I

"x. She voluntarily tendered a red coloured envelope having golden print on it, containing 500 USD, which she was supposed to handover to Mr. Damodara Surya Rama Prasad Dubey after collecting trolley bag from him on 15.03.2023. The said red coloured envelope, containing 500 USD was handed over to her by one lady who identified herself as Ms. Helen. Ms. Helen told her to give the envelope to Mr. Damodara on the instructions of Mr. Chedibere.

xi. Mr. Chedibere offered her R.5000/- for collecting the said trolley bag from Mr. Damodara Surya Rama Prasad Dubey and she agreed to the offer made by Mr. Chedibere as she was already in a financial hardship.

.. .. ..

i. He was in contact with Ms. Hikatoli Sumi since he was released on bail from Tihar Jail, New Delhi around Hune, 2022. He stated that when he came out on bail from Tihar Jail, he had no job prospects available for him nor he had enough money to do business in India, Since his passport was also seized by government agency, he could not travel back to Nigeria also. A such, he indulged himself in smuggling of drugs again. He stated that he used to contact Ms. Hikatoli Sumi motstly through whatsapp only. He knowingly hid this fact in his earlier statement recorded on 15/16.03.2023 in the office of DRI, Delhi Zonal Unit.

ii. He had instructed Ms. Hikatoli Sumi to collect the trolley bag from Mr. Damodara Surya Rama Prasad Dubey on 15.03.2023. He had informed Ms. Hikatoli Sumi about the fact that the said trolley bag was containing some narcotic drugs concealed in it. He promised to give Ms. Hikatoli Sumi Rs.20000/- in cash for taking the delivery of the said trolley bag from Mr. Damodara Surya Rama Prasad Dubey. He also instructed Ms. Hikatoli Sumi that Ms. Helen (Mob. +91 8798508619) would also be present on the spot while she would take the delivery of the said trolley bag from Mr. Damodara Surya Rama Prasad Dubey. He also instructed Ms. Hikatoli Sumi that after taking the trolley bag from Mr. Dubey, she needed to handover the trolley bag to Ms. Helen and as per promise she would get Rs.20,000/- cash from Ms. Helen.

iii. He was shown two photographs and he identified the person in both the photographs as Ms. Helen alias Oge.

iv. He in close coordination with Ms. Helen alias Oge used to take delivery of narcotic drugs from various passenger landing in New Delhi, through their Indian contacts who were in need to money. Thereafter, he used to further coordinate to deliver the said drugs to the ultimate received on his phone. On being categorically asked as to who used to give instructions for the said movement of drugs from one place to another, he sated that one Ms. Helen used to give him instructions. On being asked about further details of Ms. Helen, I stated that I did not have any further details of her.

v. He reiterated that he deleted the whatsapp messages and chats with Ms. Hikatoli Sumi as he had instructed her to collect the trolley bag, concealing the narcotic drug, from Damodara Surya Rama Prasad Dubey. He did so since he was afraid that his involvement in the smuggling of the narcotic substance would be revealed and that his nexus with the drug smuggling syndicate would be established easily. vi. He was aware that Heroin is a Narcotics substance covered under the Narcotics Drugs & Psychotrophic Substances Act, 1985, and is illegal to be brought/ carried in India. However, he had knowlingly helped the drug smuggling syndicate to smuggle Heroin into India in greed of money only. 25. Forensic examination of mobile device of Ms. Hikatoli Sumi was conducted under Panchnama dated 04.09.2023 (RUD-35). Some incriminating data was retrieved during the forensic examination of the data from the WhatsApp chats between her and Mr Chidiebere Kingsley Nawchara (RUD-36). On going through the chats it was found that Mr Chidiebere Kingsley Nawchara was shared the picture of Mr. Damodara Surya Rama Prasad Dubey to her on 15.03.2023 for identification of Mr. Dubey. Further he had shared the contact details and addresses of Mr. Damodara Surya Rama Prasad Dubey and directed Ms. Hikatoli to collect the drug consignment." (emphasis supplied)

"Prima facie there is no answer given in the Affidavitin-Reply to the questions which have been prima facie listed by the Court in paragraph Nos.2 and 4 of its aforesaid order. Said Affidavit-in-Reply is nothing but a mere reiteration of the facts of the case and nothing more. The prosecution is relying upon WhatsApp chats as argued by Mr. Thakker through VC. Said chats unless they show the live link to establish the complicity of the person involved in the crime cannot be referred to and relied upon at the stage of bail as held by the Supreme Court in the case of Bharat Chaudhary Vs. Union of India (2021) 20 SCC 50. At the stage of bail complicity of the Applicant cannot be considered on the basis of hearsay evidence which is sought to be referred to and relied upon by the prosecution. That apart case of the Applicant is prima facie fully covered by the decision of Supreme Court in the Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC as opined and held by this Court in the previous order. Since indictment of Applicant is solely based on the statement of co-accused person and the facet of his long incarceration in prison for more than 2 years 2 month pending trial and commencement and completion of trial being a distinct impossibility, in that view of the matter I am of the opinion that Applicant can be released on bail.

(i) Applicant is directed to be released on bail on furnishing P.R. Bond in the sum of Rs. 25,000/- with one or more sureties in the like amount;

(ii) Before his actual release from jail, Applicant shall furnish his address where he proposes to reside after his release from jail to the concerned Police Station and also the trial Court;

(iii) After his release from jail, Applicant shall report to the Investigating Officer as and when called for;

(iv) Applicant shall attend the trial Court on first Tuesday of every month between 11.00 a.m. and 01.00 p.m. to mark his presence. If the first Tuesday of the said months falls on a holiday and/or non Court working day, the Applicant shall mark presence on the next working day;

(v) Applicant shall co-operate with the conduct of trial and attend the trial Court on all dates unless specifically exempted and will not take any unnecessary adjournments, if he does so, it will entitle the prosecution to apply for cancellation of this order;

(vi) Applicant shall not leave the State of Maharashtra without prior permission of the Trial Court;

(vii) Applicant shall not influence any of the witnesses or tamper with the evidence in any manner;

(viii) In case of any infraction of the above conditions and/ or two consecutive defaults in marking his attendance before trial Court, it shall attract the provisions of Section 439(2) of Cr.P.C. i.e. for cancellation bail; and

(ix) The concerned prosecuting Agency shall immediately communicate this order of grant of bail to the concerned Registration Officer appointed under Rule 3 of the Registration of Foreigners Rules, 1992 within the meaning of the Foreigners Act, 1946. This condition is added in view of the decision of the Supreme Court in the case of Frank Vitus v. Narcotics Control Bureau & Ors.

"3. In response thereto, the petitioner filed an affidavit. We have perused the said affidavit dated 13.11.2025, filed by Sri Kumar Ambrish, Deputy Director, DRI, Mumbai Zonal Unit. Paragraph nos.2.8, 2.9, 2.10 and 2.13 thereof reads as under:

4. The affidavit brings to light yet another serious issue concerning the manner in which Courts are accepting sureties, more particularly, in cases involving heinous offences. It has been brought to our notice by the learned Additional Solicitor General that in at least 38 cases investigated by the Narcotics Control Bureau (NCB) and in 9 cases investigated by the Directorate of Revenue Intelligence (DRI), foreign nationals, particularly from Nigeria and Nepal, have absconded, after furnishing sureties which perhaps may be fake.

5. The problem of impersonation by sureties appears to be rampant in certain States. Whether the surety module prepared by the National Informatics Centre for Trial Courts in India is functional and operational, and what other mechanism exists for verification of the genuineness of sureties, are issues which, in our considered view, require a comprehensive examination.

6. In this background, we implead the Unique Identification Authority of India (UIDAI) as a party respondent to the instant petition. Mr. Gurmeet Singh Makker, learned counsel, accepts notice on behalf of UIDAI; hence, the formal service of notice is waived.

9. Before issuing any further directions, we call upon the concerned Trial Court Judge (Mr. V.M. Sundale, learned Additional Sessions Judge, Mumbai) to furnish a detailed report relating to the acceptance of sureties in the present case, including the steps taken by him for complying with the statutory requirements. Such a report shall be submitted within a period of two weeks from today. (emphasis supplied)

[8] https://narcoticsindia.nic.in/Notifications/National_Policy_on_NDPS_published.pdf

"16. While considering the submission on behalf of the accused on mitigating and aggravating circumstances and the request to take lenient view and not to impose the punishment higher than the minimum sentence provided under the Act it should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable; it causes deleterious effects and deadly impact on the society; they are a hazard to the society. Organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances shall lay to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, it has a deadly impact on the society as a whole..."

(emphasis supplied)

"17. An offence relating to narcotic drugs or psychotropic substances is more heinous than a culpable homicide because the latter affects only an individual while the former affects and leaves its deleterious impact on the society, besides shattering the economy of the nation as well. That the legislature intended to make the offences under the Act so serious to be dealt with sternly and with an iron hand is made clear by providing for enhanced penalties, including even death sentence, in certain class of cases, when convicted for the second time."

(emphasis supplied)

"As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment; that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty, even if eventually he is acquitted, is improper. This is most manifest. The only legitimate purposes to be served by keeping a person under trial in detention are to prevent repetition of the offence with which he is charged, where there is apparently danger of such repetition, and to secure his attendance at the trial. The first of these purposes clearly to some extent involves an assumption of the accused's guilt, but the very trial itself is based on a prima facie assumption of the accused's guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose, however, is manifestly to secure the attendance of the accused.

The matters for consideration in this particular case, to which I have given my best attention, may be enumerated as follows:-

(a) Whether on the facts set out in the affidavit filed on behalf of the Crown and in the replies written and oral of the applicant there is or is not reasonable ground for believing that the applicant has committed the offence with which he is charged. The applicant has contended that he is being prosecuted only because he holds certain opinions. It is a contention which, on the materials set out in the affidavit for the Crown, prima facie has no force in it; whether it be established eventually or not, the suggestion for the Crown is that he is promulgating his opinions and endeavouring to persuade others to those opinions with a view to a resort to violence sooner or later to enforce those opinions. It is not desirable, in view of the fact that it will be for the Sessions Judge to pronounce judgment on the merits of the evidence, for me to say anything further, but it is necessary to say this much to make it clear that in passing the order at which I shall arrive I in no way lose sight of the gravity of the charge or of the nature of the evidence.

(b) The nature and the gravity of the charge.

(c) The severity or degree of the punishment which might follow in the particular circumstances in case of a conviction.

(d) The danger of the applicant absconding if he is released on bail.

(e) The character, means and standing of the applicant.

(The danger of the alleged offence being continued or repeated, assuming that the accused is guilty of having committed that offence in the past. In view of the particular circumstances of the case and the nature of the evidence as to the particular conspiracy I do not consider there is serious danger of this.

(g) The danger of witnesses being tampered with. In the present case the prosecution is closed.

(h) Opportunity to the applicant to prepare his defence. ...

(emphasis supplied)

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

(emphasis supplied)

"24. Burden of proof.- When a person is accused of having committed the offence under section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused."

"288. The successive decisions of this Court dealing with analogous provision have stated that the court at the stage of considering the application for grant of bail, is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The court is not required to record a positive finding that the accused had not committed an offence under the Act. The court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. 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. Further, the court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail.

303. ... The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of the trial court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466 : (2013) 3 SCC (Cri) 575] , the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt.

315. Suffice it to observe that it would be preposterous and illogical to hold that if a person applies for bail after arrest, he/she can be granted that relief only if the twin conditions are fulfilled in addition to other stipulations predicated in the 1973 Code; but another person, who is yet to be arrested in connection with the same offence of money laundering, will not be required to fulfil such twin conditions whilst considering application for grant of bail under Section 438 of the 1973 Code. The relief of bail, be it in the nature of regular bail or anticipatory bail, is circumscribed by the stipulations predicated in Section 45 of the 2002 Act. The underlying principles of Section 45 of the 2002 Act would get triggered in either case before the relief of bail in connection with the offence of money laundering is taken forward. Any other view would be counterproductive and defeat the purposes and objects behind the stringent provision enacted by Parliament for prevention of money laundering and to combat the menace on account of such activity which directly impacts the financial systems, including the sovereignty and integrity of the country."

(emphasis supplied)

"34. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven.

35. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years."

(emphasis supplied)

"52. The Court in Javed Gulam Nabi Shaikh case [Javed Gulam Nabi Shaikh v. State of Maharashtra, (2024) 9 SCC 813 : (2025) 1 SCC (Cri) 222] further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of nongrant of bail even in straightforward open-and-shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognise the principle that "bail is rule and jail is exception"."

(emphasis supplied)

"43D. Modified application of certain provisions of the Code.-(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in subsections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."

"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and Mcoca. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, Mcoca and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. ..."

(emphasis supplied)

"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.

19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc." (emphasis supplied)

"81. The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following:

i. whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

ii. whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and

iii. whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full-fledged trial."

"35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.-In this section "culpable mental state" includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."

"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 3 [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." (emphasis supplied)

"14. To sum up, the expression "reasonable grounds" used in clause (b) of sub-section (1) of Section 37 would mean credible and plausible grounds for the court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the court to believe that the accused person would not have committed such an offence. Dovetailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an application for bail in the context of Section 37 of the Act, the court is not required to record a finding that the accused person is not guilty. The court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. ..

19. ... The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act." (emphasis supplied)

"21. A plain and literal interpretation of the conditions under Section 37 (i.e. that court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

22. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this Court have, therefore, emphasised that the satisfaction which courts are expected to record i.e. that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Mallik [Union of India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri) 831] ). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436-A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil [Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1]..."

(emphasis supplied)

"10. The impugned order, on its own showing, does not record the satisfaction mandated under Section 37(1)(b)(ii) of the NDPS Act. Far from recording such satisfaction, the High Court has gone on to observe that 'the rigours of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial.' Such an approach is plainly contrary to the settled law laid down by this Court and deserves to be set aside on this ground alone. The right to speedy trial, rooted in Article 21 of the Constitution, is undoubtedly a precious Constitutional right. That said, in matters governed by a special enactment such as the NDPS Act, particularly where the recovery is of commercial quantity, the said right under Article 21 must be exercised within the framework of Section 37 and cannot be pressed into service solely on the ground of delay to override it. The constitutional right under Article 21 and the special provision of law under Section 37, NDPS Act are to be read harmoniously and not placed in opposition to each other. The High Court, by failing to record its satisfaction on the twin conditions under Section 37, has in this Court's view, committed an error."

(emphasis supplied)

"19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc." (emphasis supplied)

[41] Crl.A. No. 002795 / 2026 @SLP(Crl.)2876 of 2026 in Order dated 22nd May 2026

" 15. ...We, therefore, direct as under:

(i) Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.

(ii) Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.

(iii) Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.

(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 31 and 31-A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of this order. The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:

"13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)( e), which is applicable only to the citizens of this country. It was held by the Constitution Bench in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta [(1955) 1 SCR 1284 : AIR 1955 SC 367 : 1955 Cri LJ 876] that the power of the government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned, the executive government has unrestricted right to expel a foreigner. So far the right to be heard is concerned, there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order, the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship, which they failed to do in the absence of a notice."

(emphasis supplied)

"10.1. We are dealing with a case of the accused whose guilt is yet to be established. So long as he is not held guilty, the presumption of innocence is applicable. He cannot be deprived of all his rights guaranteed under Article 21. The courts must show restraint while imposing bail conditions. Therefore, while granting bail, the courts can curtail the freedom of the accused only to the extent required for imposing the bail conditions warranted by law. Bail conditions cannot be so onerous as to frustrate the order of bail itself. For example, the court may impose a condition of periodically reporting to the police station/court or not travelling abroad without prior permission. Where 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.

16. Imposing any bail condition which enables the police/investigating agency to track every movement of the accused released on bail by using any technology or otherwise would undoubtedly violate the right to privacy guaranteed under Article 21. In this case, the condition of dropping a pin on Google Maps has been incorporated without even considering the technical effect of dropping a pin and the relevance of the said condition as a condition of bail. This cannot be a condition of bail. The condition deserves to be deleted and ordered accordingly. In some cases, this Court may have imposed a similar condition. But in those cases, this Court was not called upon to decide the issue of the effect and legality of such a condition." (emphasis supplied)

[45] Crl. M(M). No. 2580/99 decided on February 20, 2000/2000 SCC OnLine Del 213

(i) Foreign nationals are entitled to protection under Article 21 of the Constitution of India;

(ii) The State has power as the sovereign to regulate, restrict and expel foreign nationals;

(iii) Merely because an accused/convict is a foreigner, the right to bail cannot be circumscribed. It is permissible to impose special conditions on them while keeping in view the right to privacy and personal liberty under Article 21.

(iv) The conditions of bail must be reasonable, proportionate and capable of compliance.

"31A. Death penalty for certain offences after previous conviction.-(1) Notwithstanding anything contained in section 31, if any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under section 19, section 24, section 27A and for offences involving commercial quantity of any narcotic drug or psychotropic substance, is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence relating to,-

(a) engaging in the production, manufacture, possession, transportation, import into India, export from India or transhipment, of the narcotic drugs or psychotropic substances specified under column (1) of the Table below and involving the quantity which is equal to or more than the quantity indicated against each such drug or substance, as specified in column (2) of the said Table:

shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death."

"436A. Maximum period for which an undertrial prisoner can be detained.-Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded." (emphasis supplied)

"479. Maximum period for which under-trial prisoner can be detained.-(1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail:

Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:

Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond: Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court.

(3) The Superintendent of jail, where the accused person is detained, on completion of one-half or onethird of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under subsection (1) for the release of such person on bail."

 (emphasis supplied)

[50] https://www.pib.gov.in/PressReleasePage.aspx?PRID=2223093®=48&lang=2

[51] https://narcoordindia.gov.in/narcoordindia/Periodicals/1758191182-4293-DOC-ncb-annual-report-2024.pdf

[52] https://narcoordindia.gov.in/narcoordindia/Periodicals/1732276895-3313-DOC-ncb-annual-report-2023-24.pdf

[53] https://narcoordindia.gov.in/narcoordindia/Periodicals/1732276799-6003-DOC-ar2022.pdf

[54] https://narcoordindia.gov.in/narcoordindia/Periodicals/1661948610-1548-DOC-annual%20report%202021.pdf

[55] https://narcoordindia.gov.in/narcoordindia/Periodicals/1656248257-6886-DOC-2020.pdf

[56] https://www.ncrb.gov.in/uploads/files/3CrimeinIndia2024-VolumeIII1.pdf

[57] https://www.ncrb.gov.in/uploads/files/3CrimeinIndia2023PartIII2.pdf

[58] https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/ciiyearwise2022/ 1701608543CrimeinIndia2022Book3.pdf

[59] https://www.ncrb.gov.in/uploads/files/CII-2021Volume3.pdf

[60] https://www.ncrb.gov.in/uploads/files/CII-2020Volume3.pdf

[61] https://www.pib.gov.in/PressReleasePage.aspx?PRID=2223093®=48&lang=2

[62] https://www.ncrb.gov.in/uploads/files/table-20B3-2020.pdf

[63] https://www.ncrb.gov.in/uploads/files/table-20B3-2021.pdf

[64] https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1702034643TABL E20B3.pdf

[65] https://www.ncrb.gov.in/uploads/files/TABLE20B3.pdf

[66] https://www.ncrb.gov.in/uploads/files/TABLE20B31.pdf

"The problem of impersonation of sureties is rampant in at least some States. We understand that there is a surety module software prepared by National Informatics Center in the Case Information Module for the Sub-ordinate Courts in India. But there is still no mechanism with the courts to verify the genuineness of the surety. Therefore, we deem it appropriate to issue notice to the Central Government and to the Unique Identification Authority of India (UIDAI) Bangla Sahib Road, behind Kali Mandir, Gole Market, New Delhi 110001 as to find out possibility of mechanism for verification of the surety by the judicial officers for its authentication as part of good governance. The desirability of issuing notice to the States and Union Territories shall be decided on the basis of response from the Union/ UIDAI. The matter regarding verification of the surety be placed before the Hon'ble Chief Justice for constitution of an appropriate Bench as deemed appropriate."

a. The accused was not traceable;

b. The address of the surety, namely Sushil Balkrushna Jadhav, was fake and residents of the area were not aware of any such person associated with the address;

c. The purported employer of the surety submitted that no such person had ever been employed at their office;

d. The bank account furnished by the surety and the corresponding branch to which it belonged were incorrect. No account was with the bank under the name of the surety;

e. The PAN card and Aadhaar card of the surety were found to be forged;

f. Application was made to the concerned Trial Court on 12th November 2025 for forfeiture of surety bond and issuance of Non-Bailable Warrant against the surety.

"16. Coming to studies made in knowledgeable Committees we find and particularly India by the same connotation of bail as including release on one's own bond being treated as implicit in the provisions of the Code of Criminal Procedure. The Gujarat Committee [ Report of the Legal Aid Committee appointed by the Government of Gujarat, 1971 and headed by then Chief Justice of the State, Mr Justice P.N. Bhagwati, p. 185] from which we quote extensively, dealt with this matter in depth:

17. The vice of the system is brought out in the Report:

19. A latter Committee with Judges, lawyers, members of Parliament and other legal experts, came to the same conclusion and proceeded on the assumption that release on bail included release on the accused's own bond:

"SURETIES

19.1 The bail procedure is becoming a shame in courts with the accused in criminal cases absconding after arranging fake sureties on fake identities and address.

Accordingly the procedure of securing release on the basis of forged documents has become easy.

19.2 In Delhi the practice seems to be that when the court allows accused's release on bail after a local person is willing to stand surety, the guarantor has to produce documents to the Court to prove his domicile and solvency. This is done by producing a ration card or a passport. In addition, a power-of-attorney attested by a Notary Public, a motor vehicle registration document, a bank fixed deposit receipt or a certificate from the Income Tax Department is required to be submitted to authenticate the guarantor's solvency.

19.3 There are touts operating in the Court permises, who help out, on a price tag, those accused who scheme to obtain bail with the idea of absconding. These touts give surety on the basis of fake identity. They operate with numerous fake ration cards which substantiate their domicile in Delhi each in a different name and address. A back dated stamp paper is procured on which details regarding the power-of-attorney of the guarantor's property in Delhi are stated and is attested by a Notary Public. They also have in their possession fake letterheads of private organisations, fake identity cards of themselves as government servants and fake motor vehicle registration papers. The touts have to be paid 20% to 30% of the surety amount before the presentation of the surety.

19.4 Clause 44 of the Code of Criminal Procedure (Amendment) Bill seeks to incorporate a new section, S. 441A to deal with the abuse of professional and fake sureties which reads as under:

Every person standing surety to an accused person for his release on bail, shall make a declaration before the court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.

19.5 We are of the view that section 441A be incorporated in the Code to eliminate the pernicious evil of professional and fake sureties in the eliminate the pernicious evil of professional and fake sureties in the bail process. It will eliminate collusion between professional sureties, administrators of criminal justice system and criminals.

[69] https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022080878-1.pdf

[70] https://www.justice.gov/archives/jm/criminal-resource-manual-26-release-and-detention-pending-judicial-proceedings-18-usc-3141-et

[71] https://www.justice.gov/archives/jm/criminal-resource-manual-26-release-and-detention-pending-judicial-proceedings-18-usc-3141-et

[72] https://bjs.ojp.gov/taxonomy/term/bail

[73] https://delcode.delaware.gov/title18/title18.pdf https://law.justia.com/codes/california/code-ins/division-1/part-2/chapter-7/article- 1/section-1802/, https://law.justia.com/codes/california/code-pen/part-2/title-10/chapter-1/article-1/section-1276/

[74] https://laws-lois.justice.gc.ca/PDF/C-46.pdf

- "A Singapore citizen or permanent resident.

- 21 years and above.

- Not a declared bankrupt.

- Not facing criminal charges.

- Not an active bailer in other court matters.

- Physically, mentally, and financially fit to accept bailor duties.

- Prepared to accept bailor duties until the accused's case is over.

- Able to pledge security in cash or in personal properties for the bail amount ordered by the court until the accused's case concludes."

It is also provided that even if a person fulfils all the above criteria, the courts retain discretion on appointing bailors. The Criminal Procedure Code 2010 [76] provides specifically the duties of a surety as follows:

"Duties of surety

104. A surety must -

(a) ensure that the released person surrenders to custody, or makes himself or herself available for investigations or attends court on the day and at the time and place appointed for him or her to do so;

(b) keep in daily communication with the released person and lodge a police report within 24 hours of losing contact with him or her; and

(c) ensure that the released person is within Singapore unless the released person has been permitted by the police officer mentioned in section 92 or 93 (as the case may be) or the court to leave Singapore."

[75] Bailor eligibility and duties https://www.judiciary.gov.sg/criminal/bail#:~:text=In%20general%2C%20a%20bailor%20sh ould,who%20can%20be%20a%20bailor.

[76] https://sso.agc.gov.sg/Act/CPC2010

"24 Apprehension of defendant by surety

(1) Where a defendant has been released on bail to appear before a court, a surety for the bail may, at any time before the defendant is required to appear and surrender into custody in accordance with this Act, apprehend the defendant and bring the defendant before the court before which the defendant is required to appear or a justice.

(1A) A police officer shall, if required by the surety to do so, assist the surety in the apprehension.

(2) The court or justice may, upon the appearance of the defendant before the court or justice, order that the liability of the surety be discharged and may call upon the defendant to furnish another surety in the same amount and, if the defendant fails to do so, may commit the defendant to prison.

(3) A defendant committed to prison following the defendant's appearance pursuant to subsection (2) may apply to the court before which the defendant was required to appear or any other court to be granted bail again and the court-

(a) may refuse the application; or

(b) may grant the application and make such order with respect to the number of sureties (if any) and the amount and conditions of bail as it thinks proper in the circumstances."

Having appreciated the concept of sureties and some basic facts about how the institutional sureties are used in other countries, we now move to the considerations put forth by the parties in this regard.

"15. In view thereof, this Court considers to issue the following directions:

(i)The appropriate Authorities i.e. the Secretaries of e-Governance Department of State of Punjab, State of Haryana as well as Union Territory, Chandigarh shall make appropriate application under Rule 4 of the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 to the Secretary Ministry of Electronics and IT in the prescribed form requesting for Aadhaar Authentication Services in all the Court premises situated in their respective States/U.T. within 30 days from the date of receipt of certified copy of this order.

(ii) The said application once received by the Secretary, Ministry of Electronics and IT, shall be considered favourably within a further period of 30 days. The necessary equipment to be provided to the Courts in terms of the applicable scheme with applicable contribution by the State and the Central Government will be provided within a further period of 30 days. Entire system shall be made operational including implementation of software and hardware within a period of 4 months from the date of receipt of certified copy of this order.

(iii)That the infrastructure for bio-metric verification of the Aadhaar Card at the Court premises shall be provided by the NIC, with the technical assistance of UIDAI.

ONCE THE INFRASTRUCTURE IS IN PLACE:

(iv) The Courts while accepting surety shall insist for complete details and identity document of surety including Aadhaar Card. Consent of the surety shall be obtained for verification of Aadhaar Card.

(v)The Magistrate concerned i.e. the Magistrate having jurisdiction over the local areas within the limits of the concerned station shall verify the Aadhaar Card of the accused in the case of personal bond and the Aadhaar Cards of the sureties as well in the case of surety bonds.

(vi) For first time accused facing prosecution qua offences punishable with imprisonment of less than 7 years under the Indian Penal Code, the Courts shall comply with guidelines issued by Supreme Court in Hussainara Khotoon's case ibid and shall not insist on sureties if parameters laid down in Para 4 of the said judgment are fulfilled on inquiry/verification of Aadhaar number of the accused.

(vii) The Periphery Surety Module which was planned with the provision of not only integration of Aadhaar which authenticates and identifies individual Aadhaar number holder but also immoveable property details which are tendered as surety by the party in the case, shall be fully implemented and utilized optimally. Whenever a person is to stand as surety the same shall be cross-checked with the database to satisfy w.r.t. the provisions of Section 441A of 1973 Code.

(viii) The Principal District Judge and the Chief Judicial Magistrates shall inspect the register of Sureties periodically, preferably after every three months.

(ix) Registrar General, Punjab & Haryana High Court is directed to issue necessary circulars to all the Courts in the States of Punjab, Haryana and U.T., Chandigarh. Necessary Rules be also framed in this respect, in the meantime, if so required."

"Deposit of Passport & Travel Restrictions

1. The accused's passport should be mandatorily deposited either with the investigating agency or with the concerned Court to prevent any unauthorized travel.

2. It is submitted that restrictions should be imposed on travel beyond local jurisdiction, and no outside travel should be allowed without permission of the Trial Court.

3. The accused should not be granted permission by the Court to exit the country after being granted bail until the completion of trial, and in case of conviction until the sentence is completed, as there is a high potential risk that such foreign national would not return to India to face the trial in Courts.

Bail security, Sureties and financial safeguards 4. The accused should be released from jail only after due furnishing and verification of at least two solvent Sureties, in addition to Cash Bail and personal bond. This Hon'ble Court in Hani Nishad v. State of U.P. reported as 2018 SCC OnLine SC 3946 and in Girish Gandhi v. State of U.P. reported as (2024) 10 SCC 674 has held that 'there shall be two sureties who shall execute the bond of equal amount'.

5. The amount of Cash bail/ personal bond, when prescribed, should be commensurate with the severity of crime; and it may be prescribed as a percentage of seizure value of narcotics in the case. A person involved in trafficking 5 kg of Cocaine or Heroin should not have personal bond same as for person involved in trafficking of 100 grams Cocaine or 250'grams of Heroin. Thus, furnishing personal release bond of high value and producing sureties of the similar commensurate amount to the satisfaction of the Trial Court will ensure that such offences are not repeated and only genuine Sureties give guarantee for the accused.

6. It is submitted that the sureties furnished by the accused should be genuine, nonprofessional, and their credentials, including residential addresses should be verified by the jurisdictional Police for authenticity, before release of the accused on bail. Verification of: (i) Aadhar Card and/or PAN Card of the Sureties through respective Government authorities/portals; (ii) Claim of employment from the employing entity/firm/company; (iii) Claimed business activities, if any, and (iv) Existence of bank account mentioned by the Sureties, from the concerned banks, should invariably be carried out before the release of the accused on bail. That for this purpose the investigating agency may coordinate with the jurisdictional Police Station for verification of the genuineness of documents and physical existence of the Sureties.

7. A copy of the verification reports of the said credentials and addresses declared by the accused and by the Sureties/ Guarantors should be placed before the Trial Court before release on bail, and a copy should also be kept in the case files of the investigating agency and Police.

8. Immediate action should be initiated against the Sureties, including forfeiture of their properties, in case any bail condition is violated by the accused.

Address, Contact details verification and Monitoring

9. The residential address provided by the accused should be verified by the jurisdictional Police and reported to the Trial Court, before the accused is released on bail. This would prevent furnishing of incomplete or wrong/fake address and would make tracing of the accused easy later. That, any changes in the address should be immediately notified by the accused to the Court, jurisdictional Police authorities and the investigating agency.

10. The accused should furnish complete and verifiable contact details, including a valid mobile number, to the investigating agency and shall promptly report any change therein. The registered mobile number should remain active and reachable at all times to ensure that the investigating agency can establish contact with the accused whenever required.

11. The accused should be required to mark weekly physical attendance at the jurisdictional police station and be present on each date in Trial Court, and shall report to the investigating agency, as and when called for or required.

12. In all such cases booked by any agency, a copy of bail order should be invariably be forwarded to the jurisdictional Police Station to monitor the conduct and movements of the accused.

Foreign nationals-registration, monitoring and safeguards

13. That in case of foreign nationals it is submitted that prior to their release on bail, the accused should register themselves with the Foreigners Regional Registration Office (FRRO), and submit a report to the Trial Court and the investigating agency.14. In case the accused is a foreign national, he shall file affidavit before the Trial Court before his release on bail from jail, stating the source of their funds and source of their income in this country, giving the details of legal channels including bank accounts through which they would be operating their finances for bearing their living expenses.

15. That look Out Circulars may be issued immediately by the investigating agency against the foreign nationals arrested under NDPS Act, and it may be continued till completion of trial, including during bail, to ensure his continued presence.

16. An undertaking should be taken from the Embassy of the country concerned before grant of bail that the national belongs to their country, as sometimes such accused carry forged passports and at the time of further proceedings and deportation, the Embassy concerned refuses to recognize the deportee as their national.

17. A certificate from concerned embassy/ consulate may also be obtained, assuring that the accused shall not leave the country, shall attend court hearings and shall abstain from committing any further offences. Bail should be denied if such a certificate is not granted by the concerned embassy/ consulate.

18. The concerned Embassies and Consulates should be promptly informed about the accused, their case details and the bail conditions, and they should be requested to provide the details regarding the accused and his/her whereabouts, including whenever the accused approaches the embassy/consulate for any consular services.

19. In appropriate cases, Courts may consider electronic surveillance methods such as GPS tagging of the foreign national accused to ensure continued presence within jurisdiction.

20. Foreign nationals involved in repeat offences of narcotics-related cases should be blacklisted and subsequently deported out of the country after facing trial and if acquitted by the Court or after completion of sentence, as the case may be, under the provisions of relevant laws.

21. Biometric details, including iris recognition of foreign nationals, should be captured by the FRRO, and a secure access be provided to Law Enforcement Agencies (LEAs). Integrating the Bureau of Immigration/FRRO database with the NCRB criminal database would enable identification of passengers with criminal histories, including those exiting or re-entering or exiting by using a different or false identity. Furthermore, Bureau of Immigration/FRRO database should also be integrated with the National Automated Fingerprint Identification System (NAFIS).

22. A centralized database containing details of all foreign nationals arrested under NDPS Act by all concerned enforcement agencies may be created and made accessible to all agencies. Further, a digital dashboard for monitoring cases pertaining to foreign nationals can be created indicating case status, bail and trial status etc. for greater coordination amongst all agencies. Procedural reforms, Expeditious trial and Legal Expounding

23. Investigating agencies should expedite filing of Special Leave Petitions and its listing on High Priority for an early hearing when bail orders are being challenged.

24. That all cases involving foreign nationals may be referred to fast Track Courts to ensure expeditious trial and disposal, so that they should not get an opportunity for seeking bail on the ground of long incarceration.

25. The term 'long incarceration' may be defined and the same should be read in terms of section 479 of BNSS and section 436A of CrPC, as presently absence of such timeline, various courts are construing it differently and allowing bail citing long incarceration with varied timelines as criteria for granting bail to the accused.

26. That compliance of Section 129 of BNSS may be made mandatory and a specific provision may be incorporated to enable the execution of a 'Bond for Good Behavior' in respect of repeated offenders under NDPS act. This would facilitate effective supervision and control over foreign nationals involved in the repeated violation.

27. That this Hon 'ble Court in Tofan Singh v. State of T.N. reported as (2021) 4 SCC 1 held that for the purposes of confessional statements, the officers under the NDPS Act (inquiry/investigation) must be treated as "police officers" under Section 25 of the Evidence Act.

Therefore, confessions made to such officers under Section 67 of the NDPS Act are inadmissible as evidence because they would violate Article 20(3) and the protections under the Evidence Act. This judgement is being invariably relied upon by the High Courts for granting bail to the accused in cases wherein the allegations are on the basis of statements of co-accused, even if duly corroborated with other evidence, for example the instant case. While Tofan Singh judgement is a milestone in protecting against wrongful conviction, a nuanced application is necessary. Repeat offenders, having demonstrated disregard for the law, should not be allowed to exploit procedural protections to perpetuate organized or habitual crime. Further, it is seen that repeat offenders/ masterminds are not directly involved with possession and carriage of narcotics; thus statements once corroborated with independent evidence should not be discarded, especially at the bail stage.

Thus it may be expounded and elucidated that statements recorded under Section 67 may not be admissible during trial, they may nevertheless be considered/ admissible while adjudicating a bail application in NDPS cases.

28. That the above submissions and suggestions are submitted keeping in mind the sophisticated modus operandi adopted by the masterminds of narcotic and trafficking syndicates. Furthermore, reliance is being placed on the decision of this Hon'ble Court in Union of India v. Vigin K. Varghese reported as 2025 SCC OnLine SC 2440 and also on Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India reported as (1994) 6 SCC 731."

1.1 Based on the suggestions of DRI and the updated comments the following guidelines are proposed. It is made clear that these guidelines are only applicable for the grant of bail by the trial court/appellate court to foreign nationals and non-citizens who are being prosecuted for offences under NDPS in relation to commercial quantity.

1.2 Directions to all Courts that while granting bail/suspension of sentence, in cases under NDPS involving commercial quantity to foreign nationals, to impose a condition for the accused's passport to be deposited with Court if not seized by the investigating agency or already lying deposited with the Court, or any other Court or agency.

1.3 Directions to all Courts granting bail/suspension of sentence, that in cases under NDPS involving commercial quantity to foreign nationals, a condition for grant of bail be imposed that Accused should not be allowed to travel outside India/ jurisdiction of the Court, without permission of the Court granting bail or the Trial Court.

1.4 Directions to all Courts that while granting bail/suspension of sentence, in cases under NDPS involving commercial quantity to accused foreign nationals to register themselves with the FRRO within one week of release and submit a report to the Trial Court and Investigating Agency.

1.5 Directions to FRRO, Ministry of Home Affairs, to create a mechanism (portal) for accused foreign nationals to register themselves with the FRRO within one week of release on bail/suspension of sentence, in cases under NDPS involving commercial quantity to and submit a report to the Court granting bail and/or Investigating Agency.

1.6 Directions be issued to investigating agencies, that upon grant of bail/suspension of sentence in cases under NDPS involving commercial quantity to accused foreign nationals, the investigating agency is directed to request the Ministry of Home Affairs to issue Look Out Notice against such persons, within 2 working days of the order being passed.

1.7 Directions to all Courts that while granting bail/suspension of sentence, in cases under NDPS involving commercial quantity to accused foreign national to provide two sureties for grant of bail. (Note-Alternatively, this Court may consider whether it should be left to the discretion of the Court to ask for one or two sureties while granting bail.

1.8 DRI has suggested that amount of Cash/ Personal Bond should be commensurate with the severity of crime or percentage of seizure value of narcotics in the case. This suggestion seeks to tie the Cash/ Personal Bond to the "severity of crime or percentage of seizure value of narcotics.".

AMICUS NOTE - It would be appropriate and in consonance with precedents of this Court, to issue "Direction to Courts granting bail/suspension of sentence to foreign nationals accused in cases under NDPS involving commercial quantity may impose appropriate surety amount to seek to ensure that accused does not flee from justice upon release."

1.9 Directions be issued to Courts to ensure that the declared place of residence of the Foreign National Accused in bail bond, in cases under NDPS involving commercial quantity in India, is verified not later than 3 working days of furnishing bail bond and prior to their release.

1.10 Direction be issued to Courts granting bail/suspension of sentence to foreign national accused in a NDPS Case involving commercial quantity, for ensuring verification of the sureties by the investigating agency , within 3 working days of furnishing bail bond and prior to their release. This verification report be placed by the investigating agency no later than 3 days before the Court where bail bond is furnished.

1.11 Directions be issued to Courts granting bail/suspension of sentence to Foreign National Accused in cases under NDPS involving commercial quantity, to furnish, within a period of 7 days from release on bail, a valid Indian mobile number which is functional/operative in India, (and to keep it switched on permanently), to the investigating agency and to further report any change therein, within 72 hours of change, to the Court accepting bail/surety bonds.

1.12 Directions be issued to Courts to impose a condition of grant of bail, on foreign national Accused granted bail/suspension of sentence in cases under NDPS involving commercial quantity, to mark their presence weekly in the jurisdictional police station of their place of residence, or report to the investigating officer, (if within a 30 km distance from residence of accused) upon release on bail.

1.13 Directions be issued to Courts granting bail to Foreign national Accused in cases under NDPS involving commercial quantity, a condition be imposed that accused shall file an affidavit before the Trial Court within one week of his release on bail, stating source of funds and source of income in this country if any, and giving details of their bank accounts, if any, through which he/she would be operating their finances.

1.14 Directions be issued by the Court granting bail to investigating agencies concerned, to inform the Embassies/Consulates of the country of which foreign national accused is a citizen, in cases under NDPS involving commercial quantity of grant of bail.

1.15 Directions be issued to Courts granting bail, to request the concerned embassy/ consulate of country of which accused is a citizen, to provide a certificate, within 7 days of release, assuring that foreign national accused in cases under NDPS involving commercial quantity granted bail shall not leave the country, shall attend court hearings and shall abstain from committing any further offences. The embassy/ consulate of country of which accused is a citizen, may also be requested by the Court granting bail, to share details of the accused available with them and to intimate the Court granting bail, whenever the accused approaches them for any consular services.

1.16 Directions be issued to Courts to ensure compliance of Section 129 of BNSS, 2023 while granting bail to Foreign national Accused in cases under NDPS involving commercial quantity

1.17 Directions be issued to Union of India to consider a specific provision to be incorporated in NDPS Act to enable the execution bond in terms of Sec. 34 of NDPS Act at the pre-conviction stage or at the time of granting bail.

1.18 Direction be issued to Ministry of Electronic and Information Technology and Ministry of Home Affair, to formulate guidelines/ frame rules for use of Geo-fencing Technology, if viable, to ensure that accused do not violate conditions of Bail vis-a-vis geographic limitations.

1.19 Direction to be issued to the Unique Identification Authority of India in terms of Good Governance (Social, welfare, innovation, knowledge) Rules, 2020 updated as on 23.10.2023, to allow use of Aadhar Authentication for Surety Verification.

1.20 Directions to be issued to Union of India to upgrade and adopt the existing portal, viz. NIDAAN (National Integrated Database Portal on Arrested Narco Offenders), by all relevant Law Enforcement Agencies for comprehensive data entry with respect to NDPS accused, as well as for effective monitoring, especially of repeat offenders.

1.21 Directions to the Ministry of Law and Justice & Ministry of Home Affairs & State Governments/Union territories, to create and populate a Centralized Database of Sureties i.e., Surety Information Management System (SIMS) with provision of allotting a Unique Identification Number, to each surety."

Apart from these, further suggestions have been made by the learned amicus curiae with due consideration, inter alia, of the Surety Scrutiny Management Application prepared and used by the High Court of Karnataka:

"2.1. Directions be issued to Union of India and States/Union Territories that if fabricated or impersonated sureties are found to have been verified and accepted based on police verification reports as well as revenue officers' verification reports, a departmental inquiry should be initiated against the concerned officials responsible for such verification by erring officials including police, revenue with respect to such negligence, collusion or dereliction of duty. (Note -There should also be timeline prescribed for initiation and conclusion of the aforesaid departmental enquiry)

2.2. Directions to be issued to the Reserve Bank of India to issue appropriate circulars to all banks to link Fixed Deposit or Bank Account of the person standing surety to the Bail Bond and create a lien on the Bail Bond amount, in cases under NDPS involving commercial quantity to accused foreign national.

2.3. Direction to be issued to the Registrars of all High Courts to create digital infrastructure/portal for courts to access and verify financial and property credentials for authentication of documents/information of surety, instantaneously & to coordinate with Unique Identification Authority of India, Ministry of Road Transport Highway, Reserve Bank of India and Revenue Departments of State Governments/Union territories in this regard.

2.4. Directions to be issued to the Unique Identification Authority of India, Ministry of Road Transport Highway, Reserve Bank of India and Revenue Departments of State Governments/Union territories, to issue necessary circular/directions so that information on Aadhaar, M-Parivaahan, Bank Account details, Land Registry Records maintained online by Registrar are accessible through the aforesaid online portal for real time verification.

2.5. Directions to be issued to Ministry of Home Affairs to revise FORM 47 of the BNSS, 2023 with relevant legislative amendment to incorporate enhanced disclosures, biometric linkage, and declarations regarding previous surety engagements, & provide for penal consequences for false statements.

2.6. Directions be issued to High Courts and Judicial Academies to provide structured training to Courts within their on the socio-economic impact of surety-based bail in cases under NDPS involving commercial quantity to accused foreign national, and its impact for indigent undertrials, and judicial academies ought to incorporate dedicated modules on bail jurisprudence, & financial vulnerability of foreign national Accused accused/convicts in custody in cases under NDPS involving commercial quantity and access to justice."

"47. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent "clogging or obstruction of the stream of justice". It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.

48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute-settling. It is well recognised and established that this Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a "problem-solver in the nebulous areas" (see K. Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] but the substantive statutory provisions dealing with the subjectmatter of a given case cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject."

(emphasis supplied)

[81] Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225

"26. Having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of the rule of law; (iii) pendency of even this petition for the last over ten years; (iv) the fact that various commissions and committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issuing of appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite legislations. It may further be noted that the quality of the criminal justice system in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions..."

"49. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role...

51. In exercise of the powers of this Court under Article 32 read with Article 142, guidelines and directions have been issued in a large number of cases and a brief reference to a few of them is sufficient. In Erach Sam Kanga v. Union of India [ WP No. 2632 of 1978 decided on 20-3-1979] the Constitution Bench laid down certain guidelines relating to the Emigration Act. In Lakshmi Kant Pandey v. Union of India [(1984) 2 SCC 244] (In re, Foreign Adoption), guidelines for adoption of minor children by foreigners were laid down. Similarly in State of W.B. v. Sampat Lal [(1985) 1 SCC 317 : 1985 SCC (Cri) 62 : (1985) 2 SCR 256] , K. Veeraswami v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734] , Union Carbide Corpn. v. Union of India [(1991) 4 SCC 584] , Delhi Judicial Service Assn. v. State of Gujarat [(1991) 4 SCC 406] (Nadiad case), Delhi Development Authority v. Skipper Construction Co. (P) Ltd. [(1996) 4 SCC 622] and Dinesh Trivedi, M.P. v. Union of India [(1997) 4 SCC 306] guidelines were laid down having the effect of law, requiring rigid compliance. In Supreme Court Advocates-on-Record Assn. v. Union of India [(1993) 4 SCC 441] (IInd Judges case) a nine-Judge Bench laid down guidelines and norms for the appointment and transfer of Judges which are being rigidly followed in the matter of appointments of High Court and Supreme Court Judges and transfer of High Court Judges. More recently in Vishaka v. State of Rajasthan [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] elaborate guidelines have been laid down for observance in workplaces relating to sexual harassment of working women. In Vishaka [(1997) 6 SCC 241 : 1997 SCC (Cri) 932] it was said: (SCC pp. 249-50, para 11)

"Objectives of the Judiciary:

10. The objectives and functions of the Judiciary include the following:

Thus, an exercise of this kind by the court is now a well-settled practice which has taken firm roots in our constitutional jurisprudence. This exercise is essential to fill the void in the absence of suitable legislation to cover the field."

"79. In State of Arunachal Pradesh v. Khudiram Chakma [1994 Supp (1) SCC 615] following Louis De Raedt [(1991) 3 SCC 554 : 1991 SCC (Cri) 886] , it was held that the fundamental right of a foreigner is confined to Article 21 for life and liberty and does not include the right to reside and stay in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of the country. After referring to some well-known and authoritative books on international law it was observed that the persons who reside in the territories of countries of which they are not nationals, possess a special status under international law. States reserve the right to expel them from their territory and to refuse to grant them certain rights which are enjoyed by their own nationals like right to vote, hold public office or to engage in political activities. Aliens may be debarred from joining the civil services or certain profession or from owning some properties and the State may place them under restrictions in the interest of national security or public order. Nevertheless, once lawfully admitted to a territory, they are entitled to certain immediate rights necessary to the enjoyment of ordinary private life. ..."

Be that as it may, the deposit of passport is a serious condition which, in our view, is commensurate with the gravity of the offence, since cases involving commercial quantities under the Act, have heightened punishments.

In a scenario which involves an Indian citizen, an alternative, statutory process is in place i.e., impounding of the passport. Depositing the same before a Court is, in a way, less severe and cumbersome than impounding of a passport under the Passports Act 1967, to secure the presence of the accused. We say so because this Act provides, under Section 10(3)(e), for impounding of a passport when proceedings are pending before a criminal Court. It is an entirely independent procedure involving a statutory authority and not the Court directly, and the same should not be resorted to as a matter of course in the interest of investigation as also justice.

While the DRI and the Union are desirous for the depositing of passport to be a mandatory condition in case of a foreign national accused in NDPS case involving commercial quantity, the learned amicus suggests that the imposition of this condition should be left to the discretion of the concerned Court. Considering the fact that we are concerned with cases involving commercial quantities of narcotics and psychotropic substances which have various unpleasant and unwelcome effects on the country, we are of the view that depositing of passport is justified as being mandatory. At the same time, it has to be observed that until a person is convicted the presumption of innocence must remain in unrestricted operation. As such, in view of Para 31 of Satwant Singh Sawhney v. D. Ramarathnam, Asstt. Passport Officer [93] which, in the words of K. Subba Rao CJ holds that no person, can be denied the right to travel abroad under Article 21 of the Constitution, except under procedure established by law; and as already established, Article 21 rights are available to foreigners as well. We hold that an accused whose passport has been so deposited shall have the right to make an application to the concerned Court seeking release thereof, enabling him to travel, either domestically or internationally as the case may be subject to such conditions as may have been imposed by the concerned Court including the requirement of express permission before travelling outside the territorial jurisdiction of the Court. Whenever an accused makes an application for release of passport, the same has to be decided expeditiously, in a time-bound manner i.e., preferably within four weeks from the date of application.

[91] See: Hans Muller of Nurenburg v. State of W.B., (1955) 1 SCC 167 (Constitution Bench); Charles Sobraj v. Supdt., Central Jail, (1978) 4 SCC 104 (Three Judge Bench)

[93] 1967 SCC OnLine SC 21 (Followed in Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645; see also: K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1)

"BOND AND BAIL-BOND FOR ATTENDANCE BEFORE OFFICER IN CHARGE OF POLICE STATION OR COURT (FOR FOREIGN NATIONALS

IN NDPS CASES - COMMERCIAL QUANTITY) (See Sections 478, 479, 480, 481, 482(3) and 485)

I, __________(Full Name of Accused), Nationality:____________, Passport No.(date of issuance and date of expiration):______________, Issued by: __________(Country name), Visa Details:___________(date of issuance and date of expiration), Resident of:______________ (Complete Permanent Address Abroad), currently residing at _____ (Complete address in India) and Contact Details i.e., Phone No.________________, having been arrested or detained without warrant by the Officer-in-Charge of ________________Police Station/Investigating Authority, (or having been brought before the Court of _________________), and having been charged with the offence under Section(s) _________________of Narcotic Drugs and Psychotropic Substances Act, 1985 involving __ substance and being a commercial quantity of ___ weight, and being required to give security for my attendance before such Officer or Court that I shall attend before the said Officer or Court on every day on which any investigation or trial is held with regard to such charge, and in case of my making default on the aforestated condition or the requirements of the undertaking annexed herewith, I bind myself to forfeit to the Government a sum of Rs. __________/- (Rupees ________________only).

I will abide by my undertaking which annexed hereto as Annexure - I.

Dated this _______ day of__________, 20____

(Signature)"

I, __________(Name of Accused), S/o / D/o / W/o ____________________, Resident of:________________ (Complete Permanent Address Abroad), currently residing at __________ (Complete address in India) Contact Details i.e., Phone No. ________________, having Passport No. (date of issuance and date of expiration): ___________________, Issued by:

_____________(Country name), Visa Details: (date of issuance and date of expiration), having been arrested or detained without warrant by the Officer- in-Charge of ___________________Police Station, (or having been brought before the Court of __________), and having been charged with the offence under Section(s) ____________________of Narcotic Drugs and Psychotropic Substances Act, 1985 involving __ substance and being a commercial quantity of ___ weight, and having been directed to be released on bail upon execution of bail bond, do hereby solemnly undertake as under:

1. That I shall appear before the Investigating Officer of the concerned agency and/or the Hon'ble Court on each and every date of hearing, inquiry, investigation, or trial, as directed, unless specifically exempted by a written order of the Court, and that I shall remain available to the Investigating Agency and the Court at all times during the pendency of the proceedings and shall not abscond or evade the process of law.

2. That I shall strictly comply with all the terms and conditions of bail imposed by this Hon'ble Court or by any authority competent under law, and shall not leave the territory of India or the jurisdiction as specified by the Court in its order, without prior permission of this Hon'ble Court.

3. That I shall provide my residential address and mobile number to the Hon'ble Court and the Investigating Officer, and shall not change my place of residence and mobile number without obtaining prior permission, and that I shall promptly inform the Court, the Investigating Officer of the concerned agency, and the concerned Embassy, of any change in my residential address, mobile number, or other contact details.

4. That I shall report periodically to the concerned Police Station, FRRO or Embassy or any other authority, as may be directed by this Hon'ble Court from time to time.

5. That I shall, within the time granted by this Hon'ble Court, file an affidavit disclosing my source of funds, income, and particulars of bank accounts, if any, operated by me in India, and shall cooperate in any lawful verification thereof. The same shall be communicated to the concerned Investigation agency.

6. That I shall not directly or indirectly induce, threaten, or promise any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Investigating Officer of the concerned agency or, nor shall I tamper with the evidence or interfere with the course of justice in any manner whatsoever.

7. That I shall not commit any offence, of similar nature, during the pendency of the present case and shall conduct myself in a lawful and responsible manner.

8. That I understand and undertake that in the event of breach of any of the conditions of this undertaking or the bail bond, I shall be liable for forfeiture of the bond amount to the Government and a ground for cancellation of bail.

I make this undertaking voluntarily, consciously and without any coercion, fully understanding the legal consequences thereof.

(Signature)"

IN THE COURT OF _______________________________

Case / FIR No.: __________________

Police Station: __________________

Offences under: __________________

State vs. ________________________

I, ____________(full name of Surety as per Adhaar Card), S/o / D/o / W/o ___________, aged about ___ years, do hereby solemnly affirm and declare as under:

1. I offer myself as Surety for _____________________ (name and particulars of the accused), who has been charged under Section(s) _________________________ of Narcotic Drugs and Psychotropic Substances Act, 1985 involving __ substance and being a commercial quantity of ___ weight, and who has been directed to be released on bail vide order/judgment dated __________ passed by the Hon'ble __________________ Court, upon furnishing bail bond in the sum of Rs. ____________/- (Rupees ______________only) with ___________________________________________________________surety/sureties in the like amount.

2. That my particulars are as under: -

a) Permanent Address: __________________________

b) Present Address (if different): _____________________

c) Occupation: _________________________

d) Employer details (if in service):

Name & full address of employer:

OR

Details of Place of work and Business Name, if self-employed:__

e) Aadhar Card No.

f) Passport No. (if any)______

g) Immovable property owned (if any): Location, approximate value, share/interest, and encumbrances: _____________________

h) Bank Account(s) details:

Name of Bank & Branch: ____________________________

Account Type & last balance: __________________________

i) Relationship with the accused:

□ Family Member □ Friend □ Other:

j) Duration of personal acquaintance with accused: _________

k) Whether you have stood surety in any other case/s, if any:

l) □ No □ Yes (details of accused, case no., court & amount):

m) Whether any surety bond executed by me has ever been forfeited:

□ No □ Yes (details of accused, case no., court & amount):

n) Whether any application for suretyship by me was rejected earlier:

□ No □ Yes (details of case no., court & amount along with reason rejection):_________

o) Whether you have ever been accused/convicted in any criminal case:

□ No □ Yes (details): __________________________

p) Any other relevant particulars regarding income/assets including liabilities (for example loans, mortgages, personal guarantees, insolvency or bankruptcy proceedings):

3.Documents Filed:

4. I am an Indian citizen permanently residing in India.

5. I shall ensure the presence of the accused before this Hon'ble Court as and when required.

6. I undertake to immediately inform the Court if I learn that the accused is attempting to abscond or is acting in violation of any bail condition/s.

7. I consent to verification of my identity, address, and financial capacity, including bank accounts, fixed deposits, and property records.

8. I consent to the creation of lien for the surety amount on the money instrument or property either immovable or movable, furnished by me at the time of standing surety.

I hereby bind myself to the Government to pay the sum of Rs. ________/ (Rupees ________________only) in the event of forfeiture under Section 491 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

(Name & Signature of Surety)

VERIFICATION

Verified at ________ on this ____________ day of _________, that the contents of the undertaking are true and correct to the best of my knowledge and nothing material has been concealed therefrom, no part of it is untrue.

(Name & Signature of Surety)

Identified by:__________

Name & Signature of the Advocate:_________________________

Date:_____________

Place:____________"

(i) The passport of the accused foreign national shall be deposited with the jurisdictional Court. Concomitantly, the Court may place a restriction upon the accused's ability to travel outside the country without its prior permission;

(ii) The accused so released on bail shall register within one week of release with the Foreigners Regional Registration Office (FRRO) and inform, in writing to the investigating officer as also the concerned Court of having made such registration;

(iii) The FRRO, in consultation with the relevant departments of the Government, shall cause to be made and implemented a portal for the purpose of direction no.(ii);

(iv) An accused foreign national shall mandatorily produce two sureties of like amount to secure bail. If the concerned Court is of the considered view, upon it being so demonstrated to them, that despite sufficient effort it has become difficult/impossible to secure two sureties, the concerned Court may relax this condition by way of a written order recording reasons;

(v) The process of verification of sureties shall, in all cases, be done within 3 days, and the verification report be placed before the Trial Court prior to the release of the accused. If this timeline is not followed, the reasons therefor be recorded and brought to the notice of the concerned Court;

(vi) Even if the residential address of the accused and, other contact information etc., within India was verified during the course of investigation, the same shall be re-verified, physically, within three days of the order of granting bail but prior to the completion of the process of the accused being released on bail;

(vii) The accused foreign national shall file before the concerned Court, an affidavit indicating their source of income/funds within India and also give details of all bank accounts, if any, in the country;

(viii) The concerned Investigating Officer shall, through written communication, inform the Embassy of the country of origin of the accused of their involvement in the alleged crime;

(ix) The Ministry of Law and Justice along with the National Informatics Centre shall create a centralised database wherein all particulars of each individual, both accused and as well as those who stand as a surety for foreign nationals accused in NDPS cases, shall be entered;

(x) When sureties, purportedly verified, are later discovered to be fake, all officials concerned (Police, Court officials and Revenue officials) with the verification process shall face a departmental inquiry for dereliction of duty. The Ministry of Home Affairs, Government of India, and its counterparts in the States shall issue necessary guidelines for the departments concerned to proceed against erring officials;

(xi) When a person stands as surety in favour of a foreign national accused, a lien/charge equal to the amount of the surety bond be created on their property in any form, including immovable property. In case of violation of the condition imposed, the concerned Court may, in the attending facts and circumstances of each case, direct the realization of such lien.

(xii) All High Courts through their respective IT Committees shall take steps to implement the creation of a digital portal through which speedy verification and authentication of documents such as property and finance can be carried out. The High Court of Karnataka, as already observed supra, has taken steps in this regard. Perhaps they're worth emulating.

(xiii) An additional form to be numbered as Form-47A, as reproduced in the preceding section (para 28.26) to be inserted after Form 47 of BNSS 2023.

(i) True it is that the co-ordinate Bench of this Court in Moti Ram (supra) the concept of professional sureties was equated with touts and looked at with a general view of disdain, however we are of the view that one of the hallmarks of the Indian Constitutional system is its openness to adopting evolved views and not being stuck to those taken in the past conditions upon the fact that the latter view is also firmly rooted in constitutional moorings. As such, in certain cases, possibly, professional sureties may be the only answer. We had asked Mr. Raju, learned ASG, and Mr. Luthra to explore this aspect. They have, after an in-depth study, informed us that as such no rules exist in this regard. In that view of the matter, they have furnished draft rules which we have studied, analysed and amended as is suitable, as given in Annexure I.

The introduction of the professional bondsmen system can only be made, even for the limited purposes pertaining to foreign nationals in NDPS cases, after an in-depth study of all relevant laws, the socio-economic impact of professionalising the securing of liberty, and benefiting from a comparative perspective, etc. It may also be observed that when the rules were proposed by the learned amicus in consultation with the Union of India, the same contained not only individuals functioning as bail bondsmen, but also entities or limited liability partnerships functioning as bail bondsmen entities. That too, in our view, is a matter that requires in-depth consideration of all relevant factors, including adequate attention being paid to the positives and negatives in the context of the socio-legal milieu, of the corporatization of bail. The Executive must take a call on this issue.

(ii) As a matter of ordinary practice, the physical verification of sureties is undertaken by the Investigating Officer, after which the surety and the relevant documents of the surety are produced before the Court for the satisfaction of the Magistrate. As per the report of the concerned judge, the established processes were followed here as well. But, clearly, there needs to be some change in the process. Possibly, each district Court may be provided with human resources specifically meant for this purpose. When these specifically designated persons undertake a verification, they shall make all practical attempts to join at least two independent witnesses in this verification;

(iii) The relevant authorities of the Government as also the Court may take all steps to effectively develop Surety Information Management System (SIMS) as a paradigm across all States for effective storage and management of information;

(iv) Ministry of Electronics and Information Technology may, if found feasible, after due consideration of this Court's judgments, inter alia K.S. Puttaswamy (supra), frame guidelines for implementation of geo-fencing technologies and also outline the kind of cases in which this method may be used.

(v) The appellant, through the concerned Ministry, may make an application in the prescribed form to UIDAI to facilitate the use of Aadhaar authentication procedures for surety verification in terms of the Aadhaar Authentication for Good Governance (Social, Welfare, Innovation, Knowledge) Rules, 2020[95].

(vi) The Ministry of Home Affairs may consider whether the NDPS Act, 1985, be included in the list of statutes mentioned under Section 129 of the BNSS 2023, whereby the Executive Magistrate may require an offender residing within the jurisdiction to execute a bond for good behaviour.

(vii) Judicial Academies should provide training to judges/judicial officers regarding the interrelationship of social and economic realities, especially financial vulnerabilities, with access to justice, when it comes to surety-based bail.

OBJECTS AND AIMS

The National Legal Services Authority in exercise of its policy and scheme making powers under Section 4(a) and 4(b) of the Legal Services Authorities Act, 1987 is competent and with its nationwide network is capable of giving effect to a scheme to reform and regulate surety practices and to introduce a scheme for licencing and registration of Professional Bail Bondsperson throughout India. The core objectives of this Scheme are:

i. To institutionalise and regulate the role of professional bail bondsperson in India, and create a formal, legally recognized framework for professional bail bondsperson.

ii. To reduce incarceration post the order granting bail or suspension of sentence to an accused, that occurs strictly due to an accused's inability to furnish sureties.

iii. To ensure accountability, transparency, and professionalism in all bail surety services provided to the accused by bail bondsperson.

iv. To assist courts in the effective enforcement of bail or suspension of sentence conditions, thereby ensuring the accused's presence during proceedings.

v. To prevent the exploitation of accused persons and their families by unregulated or unscrupulous actors providing sureties to accused and curb the menace of fake sureties.

1. Short Title, Extent, and Commencement.-

These Rules may be called the Professional Bail Bondsperson (Regulation) Rules, 2026.

2. Definitions.-

(1) In these rules, unless the context otherwise requires-

2. Words and expressions used but not defined in these regulations shall have the meanings respectively assigned to them in the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") or, as the context may require, the Code of Criminal Procedure, 1973 ("CrPC"); the Bharatiya Nyaya Sanhita, 2023 ("BNS") or, as the context may require, the Indian Penal Code, 1860 ("IPC"); the Bharatiya Sakshya Adhiniyam, 2023 ("BSA") or, as the context may require, the Indian Evidence Act, 1872 ("IEA"); and the Reserve Bank of India Act, 1934.

a) NALSA shall be the nodal body for policy guidance, standardsetting, and training modules.

b) NALSA may issue model rules, ethical codes, and compliance standards and conditions for grant of license under Rule 8, 10 and 11. Such conditions shall be consistent with the BNSS or any other law for the time being in force in India.

c) National Legal Services Authority shall-

d) State Legal Services Authorities shall act as State Implementing Authorities, and District Legal Services Authorities shall act as District Verification Units.

i. A Chairperson being a person who has before his or her retirement, worked as a Judge of the High Court, to be nominated by the Chief Justice of concerned High Court;

ii. A Vice-Chairperson being a person who has before his or her retirement from service, worked as a Sessions or Additional Sessions Judge for at least 10 years in that State or Union Territory, to be nominated by the Chief Justice of concerned High Court;

iii. A police officer, nominated by the Director General of Police, not below the rank of Inspector General of Police or officer of equivalent rank in the State or Union Territory;

iv. A representative of the State Legal Services Authority, to be nominated by the Chairperson of the State Legal Services Authority;

v. A financial or compliance expert qualified and practising as a Chartered Accountant who has at least 20 years of experience in his field, and resides in that State/Union Territory, to be nominated by the Chairperson of the State Legal Services Authority; and

vi. Either a Social Worker with a minimum qualification of a Master's degree from a recognized University in India or overseas in social work, clinical psychology, criminology; or a Medical Doctor who has a Doctor of Medicine (MD) degree in Psychiatry from a recognized University in India or overseas, and with at least 20 years of experience in his/her field, and nominated by the Chairperson of the State Legal Services Authority.

(2) The tenure, terms and conditions of appointment and all other related matters shall be notified by NALSA in consultation with the respective State Government.

a) issue licenses to and register Individual Professional Bail Bondsperson upon receiving an application in the prescribed form in terms of Rule 10;

b) fix, modify, and publish the maximum service fees a bondsperson can charge;

c) adjudicate complaints in connection with the duties and responsibilities of bail bondsperson stipulated for them under these Rules;

d) cause an annual forensic audit of the fiduciary and collateral accounts of all licensed bondspersons under these Rules within the State at a time and date as may be prescribed as part of conditions of license; and

e) devise a mechanism, in consultation with the State Legal Service Authority for ascertaining suitability of an applicant to be a bail bondsperson.

b) Any act of executing or soliciting a bail bond without a valid license shall constitute an offence of cheating by personation and such other offences as may be applicable and punishable under the provisions of IPC or BNS and triable as per the provisions of CrPC or BNSS.

i. be a citizen of India;

ii. possess such educational qualifications and professional competence as may be prescribed by the State Regulatory Authority;

iii. be a solvent individual;

iv. be of sound mind; and

v. satisfy the Authority as to his or her integrity, reliability, and fitness to act as a professional surety;

i. Serving police officers, Serving prison officers, Serving judicial officers, Serving prosecutors, Serving court staff, or any other person exercising control over prisoners as may be prescribed by the NALSA;

ii. persons convicted of an offence involving fraud, dishonesty, moral turpitude, or with any offence punishable with imprisonment of one year or more;

iii. persons whose license has been previously revoked under these Rules; and

iv. any other person or category of persons as may be declared to be unfit by the NALSA or State Legal Services Authority or State Regulatory Authority by notification.

i. proof of identity and proof of residence of the applicant, established in such manner, and through such documents, as may be prescribed;

ii. a Police Verification Report, not older than ninety days from the date of the application, obtained from the jurisdictional police in respect of both the permanent address and the present address of the applicant, certifying inter alia that the applicant has not been convicted of, and is not undergoing trial in respect of any offence involving moral turpitude, fraud, coercion, extortion or violence;

iii. a full disclosure of all direct or indirect financial interests, in a manner prescribed by the State Regulatory Authority held by the applicant exceeding such threshold as may be prescribed, whether held in the applicant's own name or in the name of a spouse, dependant, nominee or other person on the applicant's behalf, together with a statement of the source of each such interest; and

iv. such solvency certificate from respective bank, statement of assets and liabilities, or return of income, as may be prescribed, to enable the State Regulatory Authority to assess the financial standing of the applicant.

Provided that-

i. the solvency certificate shall be signed and sealed by the manager of the bank branch issuing the certificate and countersigned by an officer not below the rank of Regional Head or its equivalent,

ii. the State Regulatory Authority may, by general or special order, require an applicant to furnish such further information, document or clarification as it may consider necessary for the proper disposal of the application, and the application shall not be treated as complete until such requirement is complied with.

(2) Any material misrepresentation made, or any suppression of a material fact, in or in connection with an application under this rule shall;

Explanation- For the purposes of this sub-rule, a fact shall be deemed to be "material" if its disclosure would reasonably have affected the decision of the State Bail Bondsperson Regulatory Authority to grant, to refuse, or to impose conditions upon, the license.

i. Identity details of registered Bail Bondsperson under these Rules;

ii. Details of the sureties furnished by the said bail bondsperson;

iii. Instances of forfeiture or default;

iv. List of blacklisted or suspended Bail bondsperson.

(a) ensure the appearance of the accused before the court all dates as may be required, and take all reasonable steps for that purpose;

(b) explain the conditions of the bail to the accused in a language understood by the accused, and obtain an acknowledgment to that effect in the language of the accused and of which he/she comprehends the meaning thereof;

(c) comply strictly with conditions imposed under the CrPC, BNSS or any other special law that might be applicable and with every direction issued by the Court;

(d) maintain accurate, contemporaneous, and verifiable records of all bonds executed;

(e) maintain records of any expenses along with verifiable bills incurred in performing duties accrued upon him;

(f) promptly inform the court and investigating agency of any apprehended breach of bail conditions and of any change in the circumstances of the accused that comes to the knowledge of the bondsperson;

(g) at the time of executing any bond, the bondsperson must issue a declaration that they have no familial, professional, or financial conflict of interest with the presiding judge, the prosecutor, or the investigating officer of the concerned police station;

(h) any further duties that may be prescribed by National Legal Services Authority, State Legal Services Authority or State Regulatory Authority.

(i) not charge fees outside this authorised schedule.

Provided that this will not limit the bondsperson from taking adequate or such security as deemed appropriate from the accused or convict, to secure his or her control on the accused seeking their services

i. detain, confine, or physically restrain any accused;

ii. impersonate or represent themselves as a public authority;

iii. solicit business within court premises or places of detention;

iv. offer or give any inducement, rebate, or consideration to secure bail business;

v. recommend or influence the choice of advocate/legal advisor;

vi. advertise in a false, misleading, or deceptive manner or suggest governmental affiliation.

vii. execute aggregate outstanding bail bonds exceeding five times the verified value of their solvency certificate or financial assets.

Explanation- Any contravention of this rule shall constitute misconduct, and shall be a ground for suspension or cancellation of the license under Chapter VII, without prejudice to any criminal liability that may be incurred.

IN THE COURT OF _____________________________

Case / FIR No.: _________________

Police Station: _________________

Offences under: _________________

State vs. _______________________

I, ____________(full name of Surety as per Surety License), S/o / D/o / W/o ___________, aged about ___ years, Permanent Address: ________, Present Address: ______________, having Surety License No.: _______________________, valid from ___ to _ Mobile No.: ___, Email ID: ________________________________________________________, do hereby solemnly affirm and declare as under:

1. I offer myself as Surety for ________________________ (name and particulars of the accused), who has been charged under Section(s) ______________________, and who has been directed to be released on bail vide order/judgment dated ________ passed by the Hon'ble _________________ Court, upon furnishing bail bond in the sum of Rs. ____________/- (Rupees ____________only) with __________surety/sureties in the like amount.

2. That my particulars are as under: -