Over 5 yrs in custody, HC grants bail to foreigner

Kolkata: Noting that the Supreme Court had given bail to a Pakistani national convicted under provisions of Foreigner’s Act, Calcutta High Court granted conditional bail to an undertrial (UT) foreigner, an “accused in a murder case in Bangladesh”, who had illegally entered India and was in custody for over five years ever since his arrest in Kolkata for offences both under NDPS Act and Foreigner’s Act.

The Bench of Justice Arijit Banerjee and Justice Apurba Sinha Ray dealt with a two-fold challenge: Whether the petitioner can seek benefit under Section 436-A CrPC and if bail can or should be granted to a foreigner who entered India illegally. The court noted SC had enlarged a Pakistani national on bail in a separate case on touchstone of Article 21. Petitioner, arrested on April 3, 2019 in connection with a Park Street Police Station case concerning narcotics recovery, submitted he was in custody for over 5 years and 5 months. The maximum punishment under Section 14 of the Foreigner’s Act is 5 year’s imprisonment and under Section 22 (b)/29 NDPS Act is 10 years. He is admittedly a Bangladeshi national who, according to the state, entered India illegally and is a murder accused in his home country. State opposed his bail prayer while mentioning the petitioner didn’t challenge a previous order and delayed the trial himself by seeking frequent adjournments.

HC noted the petitioner was incarcerated for far too long and rejected the claim that he alone caused trial delay. Court observed that the trial court was at liberty to not have allowed the adjournments. Additionally, the trial court had stated that Covid pandemic caused substantial delay.

Court observed he served more than the max imprisonment period for offence under Foreigners Act and more than one half of the max period of imprisonment for offence under the NDPS Act. The bench observed that only one prosecution witness out of 13 named in charge-sheet was examined in full. “We do not see that the trial will conclude on an early date.”

The court granted him bail on a bond of Rs 50,000 of a citizen of India and forbade him to leave the Park Street PS jurisdiction without trial court’s leave. He was also directed to apply to the concerned authority for a special temporary visa in view of the ongoing trial where his presence is necessary. The concerned authority was directed to consider the application.

Petitioner was also directed to report to the police station once every week and furnish his residential address. He was warned against tampering with evidence or influencing prosecution witnesses. The trial court was asked to expedite the trial and conclude it without granting unnecessary adjournments.