Godwin Amadi @ Frank vs State Of H.P And Another

Cr.M.P No. 1212 of 2024 in Cr. Appeal No. 445 of 2023 Reserved on: 23.09.2024

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Decided on: 26th September, 2024

Godwin Amadi @ Frank .......Appellant/applicant

Versus

State of H.P and another ...Respondents

Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 No. For the applicant:

r Mr. George, Advocate.

For the respondents: Mr. I.N. Mehta, Mr. Y.W. Chauhan, Sr. Addl. A.Gs with Ms. Sharmila Patial, Mr. Navlesh Verma, Addl. A.Gs., Mr.

J.S. Guleria and Mr. Raj Negi, Dy. A.Gs for respondent No.1.

Mr. Balram Sharma, Dy.SGI for

respondent No.2.

Tarlok Singh Chauhan, Judge

The appellant/applicant has been convicted and

sentenced to undergo rigorous imprisonment for 10 years and

to pay fine of Rs.1,00,000/- and in default of payment of fine to

undergo simple imprisonment for eight months under Sections

21 and 29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as the 'NDPS Act'), further

1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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convicted and sentenced to undergo simple imprisonment for

three years and to pay a fine of Rs.20,000/- and in default of

payment of fine to undergo simple imprisonment for two

.

months under Section 12 of Passport Act, 1920. He has also

been convicted and sentenced to undergo simple imprisonment

for three years and to pay a fine of Rs.10,000/- and in default

of payment of fine to undergo simple imprisonment for two

months under Section 14 of the Foreigner Act, 1946. He has

filed the instant application under Section 436(A) of the Code of

Criminal Procedure for his release on the ground that he has

already undergone detention of more than one-half of the

maximum period of imprisonment as imposed by the Court

below.

2. It would be noticed that the applicant was arrested

on 01.04.2019 and has thereafter remained in custody in jail

and has completed more than half of the sentence. However,

the question remains whether the applicant can be released on

bail?

3. It is vehemently argued by Mr. George, learned

Counsel for the applicant that the corresponding provision of

Section 436(A) of the Code of Criminal Procedure (for short

'Cr.P.C.') is now Section 479 of Bharatiya Nagrik Suraksha

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Sanhita, 2023 (for short 'BNSS'), in terms thereof of the

appellant having completed more than half of the term of the

sentence as imposed by the trial Court for the offence under

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the NDPS Act is automatically entitled to bail, because he has

already undergone the sentence so far the violation of

provisions of Foreigner's Act is concerned.

4. On the other hand, Mr. J.S. Guleria, learned

Deputy Advocate General would argue that the applicant is a

foreign national who has not only been convicted and

sentenced under the NDPS Act, but has also been convicted

and sentenced for violation of the provisions of Foreigners Act,

1946. The mere fact that the applicant has already undergone

the sentence under the Passport Act and has also undergone

more than half of the sentence under the NDPS Act, would still

not entitle him to bail as he cannot be permitted to stay in this

country even for a second in case his sentence is suspended

and such course is not permissible till and so long his

conviction stands.

5. We have heard learned counsel for the parties and

have also gone through the record carefully.

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6. In order to appreciate the rival submissions, it shall

be necessary to refer to the provisions as contained in Section

479 of BNSS, which read as under:-

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"479. Maximum period for which undertrial 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

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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

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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 one-third 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 sub-section (1) for the release of such person on bail."

7. It would be noticed from the perusal of Sub-section

(2) of Section 479 of BNSS that it starts with non-obstante

clause and clearly states that 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.

8. In terms of judgment rendered in Satinder Kumar

Antil vs. Central Bureau of Investigation and another,

2002 (10) SCC 51, the appeal is continuation of the trial and,

therefore, on the same analogy, when the applicant has been

convicted for more than one offence, we are of the considered

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view, that he cannot avail the benefit of provisions as contained

in sub-section (1) of Section 479 of BNSS.

9. Even if we assume for a moment, that the applicant

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is entitled to the benefit of Section 479 of BNSS, even then, the

applicant does not have a valid passport and a visa and he,

therefore, cannot be permitted to stay on the Indian soil even

for a second. After all, no foreigner has any right to remain in

India contrary to the provisions of Foreigners Act, 1946.

10. A learned Single Judge of this Court in Imtizor

Imamova vs. State of Himachal Pradesh 2010 (2) Shim.L.C

63 while dealing with a foreigner who had over stayed in India

and was not having a valid passport and visa, held as under:-

"5. It is quite shocking that when the petitioner and other co-accused were found without any valid passport and

visa, why the learned trial Court granted bail to them because every minute stay of a "foreigner" within the

territory of the country is a recurring offence. On examining the record, while granting bail to the petitioner

and other co-accused, the learned Magistrate was oblivious of the provisions of the Foreigners Act, 1946 and the order passed under Section 3 of the Foreigners Order, 1948 and the Rules framed thereunder.

6. No foreigner has any right, as such, to enter or remain in India, as he/she likes and his entry into and stay in this country are regulated by the provisions of the Foreigners Act, 1946 and Rules made thereunder, for a variety of reasons.

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7. A visa issued to a foreigner is in the nature of a limited leave to enter in this country or stay there, for a duration controlled and limited by the terms of the visa issued. Such leave also carries with it certain responsibilities,

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obligations and discipline and the machinery by which such leave to enter or remain is regulated, in the larger interest of the country, cannot be lightly tampered with,

particularly by foisting anything that would destroy that machinery.

8. The learned Judicial Magistrate could not have

equipped them with a license by passing an order of bail to stay in India without any passport and valid visa. Rather the Judicial Magistrate, instead of granting bail,

should have taken the case on a day-to-day basis and

decided the case on merits. In case the accused having found to be not guilty or guilty of the offence, they shall have to be ordered to be deported after the completion of

the sentence, if any imposed.

9. In view of the aforesaid circumstances, the bail is not available to the petitioner, therefore, dismissed."

11. The ratio of the aforesaid judgment has thereafter

been followed by a learned Single Judge of this Court in

Cr.M.P(M) No.2784 of 2023 titled as Johnny vs. State of

Himachal Pradesh, decided on 15.12.2023 and in Cr.M.P(M)

No.261 of 2024 titled as Doe Harris vs. State of Himachal

Pradesh, decided on 07.03.2024.

12. The learned counsel for the applicant then would

place reliance on the judgment rendered by the Hon'ble Apex

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Court in S.L.P.(Crl.) No.6339-6340 of 2023 titled as Frank

Vitus vs. Narcotics Control Bureau and others, 1994 (6)

SCC 731 decided on 8th July, 2024 to contend that even the

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foreign citizens are entitled to bail and even the condition that

was earlier imposed regarding furnishing of certificate of

assurance by the Embassy/High Commission of their country,

to which the foreigner belongs, stating that the accused shall

not leave the country and shall appear before the concerned

Court as and when required, has been dispensed with by the

Hon'ble Supreme Court.

13. We have gone through the judgment and find that

one of the reasons which prevailed upon the Hon'ble Supreme

Court to grant bail in that case was that the appellant therein

had been implicated on the basis of statement recorded under

Section 67 of NDPS Act and such statement was entirely

inadmissible, in view of the decision of the Hon'ble Apex Court

in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1.

Meaning thereby, that the bail had been granted on merits

and, therefore, the Hon'ble Supreme Court found no reason in

the order of the High Court, whereby, it could have imposed

such a condition. This would be evident from the following

observations.

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"13. Coming to the facts of the case, bail has been granted to the appellant firstly on the ground that the appellant has been implicated based on statements recorded under Section 67 of the NDPS Act, and that such

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statements are entirely inadmissible in view of the decision of this Court in the case of Tofan Singh v. State of Tamil Nadu. So, bail has been granted on merits as

well. Secondly, the bail has also been granted relying upon what is held in paragraph 15 of the decision in the case of Supreme Court Legal Aid Committees. As the bail

was granted on merits by relying upon the decision of this Court in the case of Tofan Singh, there was no reason for the High Court to have imposed all the onerous

conditions incorporated in paragraph 15 of the decision in

the case of Supreme Court Legal Aid Committee."

14. The fact situation obtaining in the present case is

entirely different and here the applicant has been convicted

after a full fledged trial that too for multiple offences.

15. It is to be borne in mind that the applicant does not

have a valid passport and a visa and the only option left for

this country in the event of granting bail to the applicant would

be to deport him to his native co0untry, but such course is not

at all permitted without the applicant having served the

remainder of his sentence or the appeal filed by him being

allowed and his conviction and sentence being set aside.

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16. In the given circumstances, the applicant cannot

also be permitted to invoke the concept of parity by vehemently

arguing that the co-accused has been granted bail while the

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same is being denied to the applicant. It is only Article 21 of

the Constitution of India which is available to the applicant

and not Article 14 or any other provision of the Constitution.

As regards, Article 21, we do not find any violation of the same.

17. Consequently, in view of the discussion made

above, we find no merit in the application and the same is

accordingly dismissed.

18. However, it is made clear that any expression of

opinion given in this order does not mean an expression of

opinion on the merits of the case and the same has been given

only for the purpose of deciding the instant application.

( Tarlok Singh Chauhan ) Judge

September 26, 2024 ( Sushil Kukreja ) (naveen) Judge

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