[NDPS Act] Delhi High Court allows Zimbabwean woman to furnish cash instead of surety for bail

The Delhi High Court on Wednesday said a foreigner cannot be denied the benefit of depositing cash instead of surety bond to secure bail merely because of an apprehension that they are likely to escape [Nastor Farirai Ziso v NCB]..Justice Anook Kumar Mendiratta observed that doing so would lead to incarceration of the accused for an unlimited period till conclusion of trial, even when the courts have granted bail. "It may be observed that it would be a negation of the principle of rule of law and violative of constitutional mandate and principles of human rights in case benefit of Section 445 of Code of Criminal Procedure (CrPC) is denied to a foreign national merely on the ground that a foreign national is likely to escape, if released on bail" the single-judge ruled.The High Court thus held in the present case that the benefits of Section 445 of CrPC cannot be denied to a foreigner.Section 445 of the CrPC provides that when a court or an officer directs a person to execute a bond, they can permit the person to deposit a sum of money instead of executing the same.The plea was opposed by the Narcotics Control Bureau (NCB) on the ground that the petitioner, if released without surety, could flee the country..The High Court was dealing with an application filed by a Zimbabwean woman, Nastor Farirai Ziso, who was charged with offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.It was informed that on April 20, 2021, the woman was directed to be released on bail after furnishing personal bond in the sum of ₹1 lakh along with two solvent sureties in the like amount. On September 14, 2021, that order was modified saying she should be released on bail on a personal bond of ₹1 lakh and two sureties in the sum of ₹50,000.This order was again modified on 15 December, 2021, when the court reduced the sum of personal bond to ₹50,000, adding that a surety in the like amount shall also be furnished..The application now said that the woman has been languishing in jail for the last two years and eight months, and is unable to discharge her obligation of furnishing even the reduced surety being a foreign national.The Court was informed that the petitioner had contacted the Embassy of Zimbabwe multiple times, but has not been able to obtain surety and does not know anyone in this country who can discharge that obligation. As a result, she has not been able to secure bail despite court’s orders..Justice Mendiratta noted that the NCB’s apprehension was appropriately kept in consideration while passing the orders on bail, and it was because of the same that the passport of the accused was seized and she were directed to report to their office once a week till the conclusion of the trial.The judge said that denying deposit of cash in lieu of surety in all such cases may become punitive affecting the bifocal interest of justice to the individual involved as well as the society.“A mere apprehension expressed by the prosecution that the accused may flee the course of justice, cannot be the sole determinative factor for denying benefit of Section 445 Cr.P.C. without consideration of other circumstances and balancing factors in this regard. This apprehension may still theoretically persist even in a case where surety bond is furnished but the liability of surety is only to the extent of the amount mentioned in the surety bond,” the Court said. The High Court emphasised that the 'end of justice' can be met even if the bail bond is in cash.“The petitioner, who is a woman and a foreign national, cannot be forced to undergo incarceration till the conclusion of trial merely because she is unable to furnish a local surety bond… The ends of justice can be suitably achieved in the facts and circumstances of the case by accepting the deposit of cash under Section 445 of CrPC in lieu of surety bond,” the Court stated. .The Court, therefore, directed that the woman be released on bail on furnishing a personal bond of ₹50,000 and a cash deposit of ₹50,000..While advocate Ajay Kumar from the Delhi High Court Legal Services Committee (DHCLC) appeared for the petitioner, the NCB was represented by its Senior Standing Counsel Subhash Bansal. .[Read Judgment]