Bail for Foreign Nationals in NDPS Prosecutions: Co‑accused Confession Insufficient; Article 21 and Frank Vitus–compliant Safeguards Prevail

Case: Tidj Mamane alias Tidy Mamane v. State of Himachal Pradesh & Anr. (2025 HHC 30402)
Court: High Court of Himachal Pradesh, Shimla
Coram: Hon’ble Mr. Justice Ranjan Sharma
Date of Decision: 05 September 2025
Neutral Citation: 2025:HHC:30402

Introduction

This decision addresses whether a foreign national accused under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and Section 14 of the Foreigners Act can be granted regular bail when (i) no contraband is recovered from him, (ii) his implication rests essentially on co‑accused disclosure/confessional statements, and (iii) he has undergone prolonged incarceration pending a slow‑moving trial.

The petitioner, a foreign national referred to as Tidj Mamane @ Tidy Mamane, was arrested on 29.02.2024 and remained in custody for about 18 months. He sought bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), arising from FIR No. 11 of 2024 registered at PS Parwanoo, District Solan, for alleged involvement with co‑accused from whom heroin (39.70 g and 9.33 g) was recovered. He was also booked under Section 14 of the Foreigners Act due to visa overstay and questions surrounding the authenticity of his passport.

The case presented the Court with key issues: the admissibility and sufficiency of Section 67 NDPS statements to implicate a non‑recoveree; the interplay of Section 37 NDPS rigours where only intermediate quantities are involved and no personal recovery is made; the reach of Article 21’s right to speedy trial and liberty under special statutes; and how bail for foreign nationals should be conditioned post the Supreme Court’s guidance in Frank Vitus v. NCB.

Summary of the Judgment

• Bail Granted: The Court allowed the bail application, emphasizing that no contraband was recovered from the petitioner and that his implication was primarily via co‑accused confessional/disclosure statements, which are inadmissible against him per Tofan Singh v. State of Tamil Nadu.
• Section 37 NDPS Not Attracted: The recovered contraband from co‑accused constituted intermediate quantity; with no personal recovery and no Section 27A charge, the statutory rigour of Section 37 NDPS did not apply to the petitioner.
• Article 21 and Prolonged Incarceration: Continued detention for around 1 year and 6 months without trial progress infringed the petitioner’s Article 21 rights to liberty and speedy trial.
• Foreign National Status Not a Bar to Bail: The Court rejected the argument that being a foreigner or facing a Foreigners Act charge per se disentitles bail, aligning with the Supreme Court’s reservations about such a blanket approach and tailoring conditions instead.
• Frank Vitus–Aligned Conditions: The Court imposed measured conditions: impounding passport/citizenship documents, restricting travel to the trial court’s jurisdiction, monthly reporting to the local police, and directed immediate communication of the bail order to the Registration Officer and civil authorities to operationalize foreigners law compliance.
• Illegal Arrest Plea Rejected: On facts, the Court found the arrest occurred on 29.02.2024 and production before the Magistrate on 01.03.2024 satisfied the 24‑hour rule; interrogation on 28.02.2024 did not convert into unlawful custody.
• Parity: Co‑accused from whom recovery was made had already been enlarged on bail; parity supported the petitioner’s release.

Analysis

Precedents Cited and Their Influence

• Bail Jurisprudence Baselines:
  • Gurbaksh Singh Sibbia v. State of Punjab (1980) and line of cases (Ram Govind Upadhyay, Kalyan Chandra Sarkar, Prasanta Kumar Sarkar, P. Chidambaram, Sushila Aggarwal, CBI v. Santosh Karnani, State of Haryana v. Dharamraj) – reaffirm the need to balance individual liberty and societal interest, assess gravity, antecedents, risk of absconding, and tampering, while avoiding mini trials at the bail stage.
  • Saumya Churasia v. ED (2023) and State of Karnataka v. Sri Darshan (2025) – emphasize prima facie assessment without delving into detailed evidence.
• Section 67 NDPS and Co‑accused Confessions:
  • Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1 – confessions to NDPS officers are inadmissible as they are police officers; Section 67 is not a springboard to convict/implicate. The Court treated the petitioner’s implication through co‑accused statements as non‑probative for incarceration.
  • HPHC cases (Dinesh Kumar @ Billa 2020 Cri LJ 4564; Saina Devi 2022; Dabe Ram 2023; Parvesh Saini 2023; Relu Ram 2023) – disclosure statements and CDRs without more are inadequate to deny bail.
• No Recovery/Intermediate Quantity and Section 37 NDPS:
  • Sami Ullaha v. Superintendent, NCB (2008) 16 SCC 471 – if only intermediate quantity is involved and nothing is recovered from the accused, Section 37’s rigours may not be justified.
  • State of West Bengal v. Rakesh Singh (2022 SCC OnLine SC 828) – where only intermediate quantity and no personal recovery exist, and Section 27A’s applicability is doubtful, Section 37’s twin conditions do not fetter bail.
  • HPHC decisions (Roshan Lal 2024; Hari 2023; Rohit 2023) – intermediate quantity/no antecedents strengthens the bail claim.
• Foreign Nationals and Bail:
  • Imtizor Imamova v. State of HP (2010) – earlier view that foreigners with expired visas should not be granted bail under Section 14 Foreigners Act. This line has been attenuated.
  • Onyeka Samuel v. State of HP (SLP (Crl) Diary No. 26692 of 2024, 12.08.2024) – Supreme Court expressed reservations about denial of bail solely because an accused is a non‑citizen; allowed fresh bail on prolonged incarceration. HP High Court thereafter applied a more nuanced approach (e.g., YONAH DOE HARRIS v. STATE OF HP (26.09.2024); UGOCHUKWU ALASONYE v. STATE OF HP (09.07.2025)).
  • Frank Vitus v. NCB, CrA Nos. 2814‑15 of 2024 (08.07.2024; clarified 06.01.2025) – bail conditions for foreign nationals must not be freakish or defeat bail; no per se requirement of Embassy assurances; courts should communicate bail orders to Registration Officers under the Registration of Foreigners Rules to enable lawful administrative measures.
  • Sheikh Javed Iqbal @ Ashfaq Ansari v. State of UP (18.07.2024) – Article 21 is overarching; even under stringent statutes like NDPS, prolonged incarceration can warrant bail; conditions must be practical, minimally intrusive.
• Article 21 and “Bail is the Rule”:
  • MANISH SISODIA v. DIRECTORATE OF ENFORCEMENT (SLP (Crl) 8781/2024) – long incarceration with no trial progress demands weighty consideration; trial courts must remember bail is the rule and jail an exception.
  • Javed Gulam Nabi Shaikh v. State of Maharashtra (CrA No. 2787/2024) – presumption of innocence endures; State inability to ensure speedy trial cannot be used to justify continued detention merely due to seriousness of accusation.
  • PARTHA CHATTERJEE v. DIRECTORATE OF ENFORCEMENT (13.12.2024) – prolonged detention turning punitive offends Article 21.
• Arrest Legality and Procedural Rights:
  • Article 22(2) Constitution; Section 42 NDPS; Section 57 CrPC – the Court held production within 24 hours from the time of formal arrest (29.02.2024) occurred (01.03.2024), and that prior interrogation on 28.02.2024 did not amount to arrest.
  • DIRECTORATE OF ENFORCEMENT v. SUBHASH SHARMA (CrA 310/2025) – distinguished; that case involved clear 24‑hour violation.
  • RADHIKA AGARWAL v. UNION OF INDIA (2025) 6 SCC 545 – minor procedural lapses under special enactments should not be over‑magnified at the bail stage; judicial review focuses on manifest arbitrariness or material non‑compliance.
  • Vihaan Kumar v. State of Haryana (2025) 5 SCC 799; Kasireddy Upender Reddy v. State of AP (2025 SCC OnLine SC 1228) – relied upon to support the State’s timeline and compliance.

Legal Reasoning

1. Inadmissible Confessional Basis: The petitioner’s implication rested on co‑accused statements recorded under Section 67 NDPS. Per Tofan Singh, such statements are inadmissible as confessions to the police, undermining the very substratum for continued detention. The Court emphasized that mere CDRs/disclosures, absent other corroboration, cannot sustain pre‑trial incarceration.
2. No Recovery; Section 37 NDPS Not Triggered: Since no contraband was recovered from the petitioner and the overall case involved intermediate quantities recovered from co‑accused, Section 37(1)(b)’s twin conditions did not apply vis‑à‑vis the petitioner. The Court refused to presume guilt or invoke Section 35/54 presumptions in the absence of established possession.
3. Article 21 and Proportionality: The petitioner’s custody of ~18 months with the case still at the stage of consideration of charge weighed heavily. Following Manish Sisodia, Javed Shaikh, and Partha Chatterjee, the Court held that liberty and speedy trial are sacrosanct, and that continued detention cannot be punitive or preventative where the trial is not moving despite the investigation having been completed months earlier.
4. Foreign National Status and Bail: The State emphasized visa expiry and alleged fake passport (leading to Section 14 Foreigners Act). The Court held that foreign status per se cannot justify denial of bail. Instead, concerns about illegal stay and flight risk should be addressed through measured conditions consistent with Frank Vitus, administrative coordination with Registration Officers, and reporting obligations. The Court expressly distanced itself from the earlier blanket bar approach in Imtizor Imamova in light of the Supreme Court’s reservations in Onyeka Samuel.
5. Parity: All three co‑accused, including those from whom contraband was recovered, had been admitted to bail. Keeping the petitioner, a non‑recoveree, incarcerated would be anomalous and unjustified, strengthening the case for parity.
6. Arrest Legality: Addressing the defense claim of Article 22 violation, the Court accepted the State’s affidavits and the arrest memo reflecting arrest on 29.02.2024, with production before the Magistrate on 01.03.2024 (leap year) – within 24 hours. The Court found no basis to treat interrogation on 28.02.2024 as de facto arrest.

Impact and Significance

• Foreign Nationals under NDPS/Foreigners Act: The judgment consolidates a maturing line post‑Onyeka Samuel and Frank Vitus: foreign status is not a standalone ground to deny bail. Courts must instead impose calibrated conditions and activate foreigners’ law mechanisms through prompt administrative communication.
• Reaffirming Tofan Singh at the Bail Stage: Continued incarceration grounded only on Section 67‑type disclosures/confessions is legally untenable. Trial courts and investigating agencies must seek independent incriminating material when no recovery is made from the accused.
• Article 21 Overrides Statutory Rigours in Proper Cases: The decision joins recent Supreme Court pronouncements that constitutional courts may grant bail even in special statute prosecutions when prolonged incarceration renders detention punitive.
• Practical Template for Conditions: By impounding travel documents, restricting movement to the trial court’s jurisdiction, mandating monthly police reporting, and directing communication to the Registration Officer and civil authorities, the Court provides a replicable, constitutionalist template for managing risks without defeating bail.
• Decline of “Imtizor Imamova” Approach: The Court signals that the 2010 view discouraging bail for foreigners under Section 14 is no longer good law in its unqualified form. This recalibration will influence bail adjudication statewide and possibly beyond.
• Administrative Coordination: The direction to the Registry and Advocate General to notify the Registration Officer and civil authorities operationalizes the Supreme Court’s guidance and will likely be adopted as standard practice in similar cases.

Complex Concepts Simplified

• Section 67 NDPS vs. Admissible Evidence: Statements made to NDPS officers (who are “police officers” for this purpose) cannot be used as confessions to convict or as sole basis to deny bail. Independent corroboration is required.
• Intermediate vs. Commercial Quantity:
  • Intermediate quantity falls between “small” and “commercial”.
  • Section 37 NDPS’s “twin conditions” apply to offences under Sections 19, 24, 27A and offences involving commercial quantity. Where only intermediate quantity is involved and no 27A, Section 37’s heightened embargo typically does not apply.
• Presumption from Possession (Sections 35, 54 NDPS): These presumptions arise when possession is established. Without recovery from the accused, these presumptions are difficult to invoke at the bail stage.
• Parity in Bail: If co‑accused in similar or more incriminating positions have received bail, another accused may claim “parity,” subject to individual facts.
• Article 21 (Speedy Trial & Liberty): The Constitution guarantees a speedy trial and protection from arbitrary detention. Even in stringent statutes, long pre‑trial incarceration without progress can warrant bail.
• Foreigners Act Section 14: Penalizes overstaying and other infractions by foreigners. It does not create a per se bar against bail; courts manage risk via conditions and administrative coordination (Registration of Foreigners Rules, 1992).
• Frank Vitus Conditions: Bail conditions must be reasonable and practical:
  • No mandatory Embassy/High Commission “assurance” certificates as a precondition.
  • Immediate communication of bail orders to Registration Officers to enable lawful oversight (e.g., visa/passport scrutiny, reporting obligations).
  • Conditions should minimally curtail liberty necessary to secure presence at trial.
• Arrest vs. Interrogation: Questioning or voluntary association with investigation is not necessarily “arrest.” The 24‑hour production rule under Article 22(2) runs from formal arrest, excluding transit time.
• BNSS and Bail: BNSS 2023 replaces the CrPC, but bail principles evolved by the Supreme Court continue to guide courts. Section 483 BNSS (invoked here) embodies superior courts’ powers to grant bail, broadly tracking earlier CrPC concepts.

Observations on Conditions Imposed

The Court’s conditions are broadly aligned with Frank Vitus: impounding travel documents, restricting movement to the trial court’s jurisdiction, monthly police appearance, and clear warnings about tampering or reoffending. The order also includes a direction that the petitioner “shall undertake to appear before the Trial Court on every day.” Read contextually with the monthly reporting and standard practice, this likely intends appearance on every date of hearing, not literally every day, which would be unduly onerous. Trial courts may clarify this when formalizing bonds to ensure conditions are proportionate and workable.

Conclusion

This judgment fortifies a constitutionalist approach to bail in NDPS prosecutions involving foreign nationals. It clarifies that:

• Foreign citizenship or a Section 14 Foreigners Act charge does not automatically bar bail.
• Where no contraband is recovered from the accused and implication stems from inadmissible co‑accused statements under Section 67 NDPS, continued detention is unjustified.
• Section 37’s rigours are non‑applicable to a non‑recoveree in an intermediate‑quantity case, absent 27A or similar charges.
• Article 21’s commands on liberty and speedy trial can override statutory bail embargoes in appropriate cases of prolonged incarceration.
• Courts should employ practical, Frank Vitus‑compliant conditions and coordinate with Registration Officers to address the peculiarities of foreign nationals without defeating the grant of bail.

By integrating Tofan Singh, Frank Vitus, and the Supreme Court’s recent emphasis on Article 21, the Himachal Pradesh High Court not only provides immediate relief in a case with weak prosecutorial footing but also sets a pragmatic template for future bail adjudication involving foreign nationals under special statutes. The decision marks a clear doctrinal shift away from categorical denials (e.g., Imtizor Imamova) toward individualized, rights‑sensitive, and administratively coordinated bail determinations.