JUDGMENT :

Anoop Chitkara, J.

1. An under-trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Sections 21 & 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946, Sections 420, 468, 471 IPC, for selling 13.95 grams of heroin (Diacetylmorphine).-

2. The police arrested the petitioner, in FIR No. 115 of 2019, dated 2.09.2019, registered under Sections 21 & 29 of the NDPS Act, Section 12 of Passport Act, 1967, Section 14 of Foreigners Act 1946, Sections 420, 468, 471 IPC, in Police Station, Dharampur, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

3. Earlier, the petitioner had filed a petition under Section 439 CrPC before the Special Judge-II, Solan. However, vide order dated 2.11.2019, Learned Special Judge, Solan, District Solan, HP, dismissed the petition.

4. I have read the status report(s) and heard counsel for the parties.

FACTS:

5. Briefly, the allegations against the petitioner are that the police had arrested one Naresh Kumar for possessing 13.95 grams of heroin (Diacetylmorphine). After his arrest, when the police conducted investigation, he revealed to the police that he had purchased this substance from two person, who belong to Nigeria namely Innocent Oluchukwo and Stephen Chidubem. After that the police has arrested the present petitioner for abetting the said offence.

PREVIOUS CRIMINAL HISTORY

6. The counsel for the petitioner states that the accused has no criminal history.

SUBMISSIONS:

7. Learned counsel for the bail petitioner submits that the allegations are false and concocted. He states that in the status report, the Investigator has admitted the Passport's genuineness, which implies that his identity stands ascertained.

8. On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General, contend that the investigating officer has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

9. Mr. Arjun Lal, Ld. Amicus Curiae submits that the significant challenge qua grant of bail to foreign nationals is, the question of securing their presence during trial in relation to the applicability of Article 21 of the Constitution of India.

ANALYSIS AND REASONING:

10. While dealing with the bail applications of foreign nationals', the most significant challenge the Courts face is to secure their presence. Code of Criminal Procedure, 1973, (CrPC), has classified two types of offenses, bailable and non-bailable. Section 2(a) of the CrPC defines bailable offenses shown as the offences listed as 'bailable' in the First Schedule of CrPC or any other law. All the left-out crimes are deemed to be Non-bailable. In bailable offences, a Police officer is under an obligation to release the accused on bail, subject to them furnishing bail bonds. It means that even a foreign national cannot be denied bail in a bailable offence. Therefore, the question of securing their presence is not an absolute condition. However, in heinous and bone-chilling crimes, all which certainly are non-bailable, the presence of the accused must be ensured by the Courts, before granting the bail. Thus, while dealing with bail petitions of accused who are not the citizens of India, one of the most important parameters to keep in mind is the gravity of the offense.

11. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offence, also mention the minimum and maximum sent