O R D E R

ABHAY S. OKA, J.

1. Leave granted. FACTUAL ASPECTS

2. The appellant is being prosecuted for the offences punishable under Sections 8, 22, 23, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (short ‘NDPS Act’). The appellant was arrested on 21st May 2014. By the first impugned order dated 31st May 2022, the appellant was ordered to be enlarged on bail subject to various terms and Signature Not Verified conditions incorporated in the said order. The terms and Digitally signed by Anita Malhotra Date: 2024.07.08

18:10:01 IST conditions incorporated were in terms of the directions issued Reason:

by this Court in paragraph no.15 of its decision in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India & Ors.1. The appellant was ordered to be enlarged on bail on his furnishing a bail bond in the sum of Rs.1,00,000/- with two sureties in the like amount to the satisfaction of the learned Special Judge under the NDPS.

3. The grievances in this appeal have been summed up in the order dated 21st July 2023 passed by this Court, which reads thus:

“The petitioner is aggrieved by the following condition imposed while granting bail:

“.. the learned Special Judge, NDPS seized of the trial in SC No.27/14 shall ensure that the certificate of assurance from the High Commission of Nigeria is placed on record that the applicants/accused shall not leave the country and shall appear before the learned Special Judge as and when required, in as much as, the complaint filed by the Narcotics Control Bureau under Sections 8/22/23/29 of the NDPS Act, 1985 indicates that the appellants are residents of Nigeria..”

In the case of Supreme Court Legal Aid Committee vs. vs Union Of India [ (1994) 6 SCC 731] Clause (iv) reads as under:

1 (1994) 6 SCC 731 “(iv)in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner- accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;”

Prima facie, we are of the view that none of the Embassies/High Commissions may be able to give assurances as mentioned in Clause (iv). The question is whether we need to refer this case to a larger Bench for re-

consideration of Clause (iv).

Another condition imposed by the High Court reads thus:

“… they shall drop a PIN on the google map to ensure that their location is available to the Investigation Officer of the case;...”

The question is whether this condition will offend rights of the accused under Article 21 of the Constitution of India.

We request Mr. Vinay Navare, learned Senior Advocate to assist us as amicus curiae on both the issues. Registry to provide a complete set of paper book to the learned Senior Counsel as well as a copy of this order.

List on 14.08.2023.”

3.1. We have heard Shri Vinay Navare, the learned senior counsel appointed as Amicus Curiae, Shri Varun Mishra, the learned counsel appearing for the appellant and Shri Vikramjeet Banerjee, the learned Additional Solicitor General of India for the first respondent-Narcotics Control Bureau.

CONDITIONS OF BAIL

4. Section 439 of the Code of Criminal Procedure,1973 (for short, ‘the CrPC’) deals with the power of a Court of Sessions or a High Court to grant bail in non-bailable offences. We are reproducing Section 439 for ready reference:

“439. Special powers of High Court or Court of Session regarding bail.—(1) A High Court or Court of Session may direct —

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Cou