Himachal Pradesh High Court: In a petition filed for seeking regular bail, Rakesh Kainthla*, J. relied on Imtizor Imamova v. State of H.P., 2010 SCC OnLine HP 622, wherein it was held that no foreigner had any right to enter or remain in India. The foreigner could enter only with a visa and once, the visa expired, the person had no right to remain on Indian soil and if the foreigner remained on Indian soil, he had committed an offence. Therefore, bail could not be granted to a foreigner accused of committing an offence punishable under Section 14 of the Foreigners Act, 1946 (‘the FA’). Thus, the Court opined that the petitioner was not entitled to bail and dismissed the present petition.
Background
In an instant case, on 23-08-2023, a secret information was received at 6:00 am, that a man was selling heroin, and in case of his search, a huge quantity of heroin could be recovered. Thereafter, the police apprehended the man and found 5.42 grams of heroin. Further, on subsequent inquiry it was revealed that the heroin was orginally sold by the present petitioner. Subsequently, the police arrested the present petitioner and seized 15.95 gms of heroin from him. Further, after the analysis, it was found that the substance found in the possession of the petitioner was Diacetylmophine, that is heroin. Since, the peitioner was not able to produce any passport or visa, therefore, the offence punishable under Section 14 of the Foreigners Act, 1946 (‘the FA’) was also added.
Accordingly, an FIR dated 23-08-2023, was registered against the petitioner for commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) and Section 14 of the FA. The petitioner stated that he was innocent and was falsely implicated. Further, the petitioner also stated that there was no evidence to prove the offence charged against him except the co-accused’s statement, which could not be considered as a legal piece of evidence.
However, the respondent contended that the police found a mobile phone containing a conversation between co-accused and the petitioner regarding the supply of heroin. The respondent also stated that the consumption of narcotics substances was adversely affecting the younger generation of our society, therefore the present petition for bail should be dismissed.
Analysis, Law, and Decision
The Court relied on Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 wherein it was held that “the grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case.”
The Court noted that the police had specifically stated that Section 14 of the FA was added because the petitioner could not produce passport and visa, and relied on Imtizor Imamova v. State of H.P. 2010 SCC OnLine HP 622, wherein it was held that no foreigner had any right to enter or remain in India. The foreigner could enter only with a visa and once, the visa expired, the person had no right to remain on Indian soil. If the foreigner remained on Indian soil, he had committed an offence. Therefore, bail could not be granted to a foreigner accused of committing an offence punishable under Section 14 of the FA.
Thus, the Court opined that the petitioner was not entitled to bail and dismissed the present petition.
[Onyeka Samuel v. State of Himachal Pradesh, 2023 SCC OnLine HP 1718, decided on 12-12-2023]
*Judgement authored by: Justice Rakesh Kainthla
Advocates who appeared in this case :
For the Petitioner: Sarvedaman Rathore, Advocate.
For the Respondent: Jitendra Sharma, Additional Advocate General with ASI Ram Lal, I.O. P.S Sadar Solan