Supreme Court issues 13 directions to tighten bail for foreign nationals in NDPS cases, prevent fake sureties

The Supreme Court on Monday issued thirteen binding directions overhauling how courts across the country verify sureties when granting bail to foreign nationals accused under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).

The Bench of Justices Sanjay Karol and Augustine George Masih tightened the verification and background checks of such accused as well as the sureties so as to ensure that such accused foreign nationals do not abscond after getting bail.

Pertinently, the Court directed that anyone standing surety for a foreign accused will have a lien created on their property equal to the bond amount.

The following are the 13 binding directions issued by the Court:

- A foreign accused's passport must be deposited with the trial court, with any travel overseas requiring the court's prior permission;

- The accused must register with the Foreigners Regional Registration Office within a week of release and inform the investigating officer and the court in writing;

- The FRRO must build a portal, in consultation with government departments, to enable this registration process;

- Two sureties are mandatory for a foreign accused, relaxable only if the trial court records written reasons for why securing two has proved impossible;

- Surety verification must be completed within three days, with the report placed before the trial court before the accused is released; any delay must be recorded with reasons;

- The accused's residential address and contact details in India must be physically re-verified within three days of the bail order, even if verified earlier during investigation;

- The accused must file an affidavit disclosing sources of income or funds in India and details of any bank accounts held here;

- The investigating officer must formally inform the accused's embassy of the case against them;

- The Law Ministry and the National Informatics Centre must create a centralised database recording particulars of every accused and every surety in NDPS cases involving foreign nationals;

- Where a surety is later found to be fake, all officials involved in verifying them, whether police, court staff or revenue officials, must face departmental inquiry; the Home Ministry and state counterparts must issue guidelines for proceeding against erring officials;

- Anyone standing surety for a foreign accused will have a lien created on their property equal to the bond amount, realisable by the court if bail conditions are violated;

- High Courts, through their IT Committees, must build digital portals for speedy verification of property and financial documents, on the model already adopted by the Karnataka High Court;

- A new Form 47A is to be inserted after Form 47 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) incorporating the surety undertaking format devised by the Court.

The Court was hearing the Union of India's appeal against a Bombay High Court order granting bail to a foreign national, one Chidiebere Kingsley Nawchara.

He was arrested in March 2023 after nearly five kilograms of heroin was recovered from an associate at Mumbai airport.

The case reached the Supreme Court after the Bombay High Court granted Nawchara bail. During the appeal, the apex court stayed that order and directed his arrest, but a look-out circular failed to trace him.

Thus, what started as an appeal against the grant of bail turned into bail cancellation proceedings once the Court found Nawchara had jumped bail.

The Court held that the High Court order was unsustainable. It had not recorded any finding on reasonable grounds for believing the accused was not guilty, a requirement under the NDPS Act's stringent bail provisions.

The Court also held that Nawchara faced a real possibility of the death sentence since he had a prior NDPS conviction, and the fresh case crossed the one kilogram threshold under Section 31A of the Act. This meant the usual protection of release after serving half the maximum sentence did not apply to him.

A subsequent verification exercise ordered by the Court found the sureties furnished on behalf of the accused did not exist.

The top court noted that a routine appeal had turned into something far more serious after the authorities found the sureties to be fake.

This rendered the process in place entirely ineffective, shaking the confidence in the justice delivery system, the Court stated.

Hence, it proceeded to issue the thirteen binding directions to prevent such instances in future.

The Bench clarified that its directions and suggestions are confined only to accused who are foreign nationals involved in cases concerning a commercial quantity of contraband under NDPS Act.

Thus, the ruling does not apply to Indian nationals or to non-commercial quantity cases.

Besides, the 13 binding directions, the top court also made the following non-binding suggestions:

- Explore introducing a regulated system of professional bail bond persons, including corporate or LLP entities; draft rules were annexed to the judgment, but the Court left the final call on corporatising bail to the Executive;

- Provide each district court with dedicated personnel for surety verification, who should involve at least two independent witnesses during the process;

- Develop a Surety Information Management System as a nationwide model for storing and managing surety data;

- Consider geo-fencing technology for tracking accused persons, subject to the safeguards laid down in the Puttaswamy privacy judgment;

- Facilitate Aadhaar authentication for surety verification, in line with existing UIDAI rules;

- Examine whether the NDPS Act should be added to the list of statutes under Section 129 of the BNSS, allowing Executive Magistrates to require good-behaviour bonds from offenders;

- Have judicial academies train judges on the financial and social realities that affect an accused's ability to arrange sureties.

The Court directed that copies of the judgment be sent to the Union Law Secretary, the Chief Secretaries of all states, the Registrars General of High Courts, and the Chief Justice of the Bombay High Court, for follow-up action, including possible proceedings against the officials who verified the fabricated sureties.

Additional Solicitor General SV Raju appeared for the Union of India. Senior advocate Sidharth Luthra served as amicus curiae, assisted by advocate Sana Hashmi.

[Read Judgment]