FRANK VITUSversusNARCOTICS CONTROL BUREAU & ORS.

                   [2024] 7 S.C.R. 97 : 2024 INSC 479

                             Frank Vitus
                                  v.
                   Narcotics Control Bureau & Ors.
                 (Criminal Appeal No. 2814-2815 of 2024)
                                  08 July 2024
                [Abhay S. Oka* and Ujjal Bhuyan, JJ.]

                            Issue for Consideration
       The appellant was ordered to be enlarged on bail subject to various
       terms and conditions incorporated in the said order. The petitioner
       is aggrieved by the two conditions imposed while granting bail.
       The two conditions are as follows: (i) A certificate of assurance
       from the High Commission of Nigeria is to be placed on record
       that the applicants/accused shall not leave the country and shall
       appear before the Special Judge as and when required; (ii) Accuse
       shall drop a PIN on the google map to ensure that their location
       is available to the Investigation Officer of the case.

                                   Headnotes†
       Constitution of India – Art. 21 – Narcotic Drugs and Psychotropic
       Substances Act, 1985 – Code of Criminal Procedure, 1973 –
       Terms and conditions in a bail – A condition of dropping pin
       on Google Map:
       Held: In an affidavit, Google LLC stated that the user has full control
       over sharing PINs with other users – It does not impinge on the
       user’s privacy, as the user retains full control – Most importantly,
       it is stated that the PIN location does not enable real-time tracking
       of the user or the user’s device – Therefore, the condition of the
       accused dropping a pin on Google Maps, as it stands, is completely
       redundant as the same does not help the first respondent-Narcotics
       Control Bureau (NCB) – Imposing any bail condition which enables
       the Police/Investigation Agency to track every movement of the
       accused released on bail by using any technology or otherwise
       would undoubtedly violate the right to privacy guaranteed under
       Article 21 – In the instant case, the condition of dropping a PIN on
       Google Maps has been incorporated without even considering the
       technical effect of dropping a PIN and the relevance of the said
       condition as a condition of bail – This cannot be a condition of

* Author
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      bail – Accordingly, the condition is ordered to be deleted. [Paras
      10.1, 10.2]
      Narcotic Drugs and Psychotropic Substances Act, 1985 –
      Code of Criminal Procedure, 1973 – Terms and conditions in
      a bail – A condition of furnishing certificate of the Embassy:
      Held: It is not necessary that in every case where bail is granted
      to an accused in an NDPS case who is a foreign national on the
      ground of long incarceration of more than 50% of the minimum
      sentence, the condition of obtaining a ‘certificate of assurance’
      from the Embassy/High Commission should be incorporated – It
      will depend on the facts of each case – Even if such a condition
      is incorporated, on an application made by the accused, the
      concerned Embassy/High Commission declines or fails to issue
      the certificate within a reasonable time, say within a period of
      seven days, the Court always has the power to dispense with
      the said condition – Grant of such a certificate by the Embassy/
      High Commission is beyond the control of the accused to whom
      bail is granted – Therefore, when the Embassy/High Commission
      does not grant such a certificate within a reasonable time, as
      explained above, the accused, who is otherwise held entitled to
      bail, cannot be denied bail on the ground that such a condition,
      which is impossible for the accused to comply with, has not been
      complied with – Hence, the Court will have to delete the condition –
      Instead of the condition of obtaining such a certificate, the condition
      of surrendering the passport and regularly reporting to the local
      police station/Trial Court can always be imposed, depending upon
      the facts of each case – Accordingly, in the instant case, the said
      condition of furnishing certificate of the Embassy is ordered to be
      deleted. [Paras 11.1, 12]
      Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37
      and s.52 – Code of Criminal Procedure, 1973 – s.437(3) –
      Application of CrPC to the arrests made under NDPS:
      Held: Under Section 37 of the NDPS Act, the Court’s power to
      grant bail is constrained by Sub-section 1(b)(ii) – However, once
      a case is made out for a grant of bail in accordance with Section
      37, the conditions of bail will have to be in terms of Section 437(3)
      of the CrPC – The reason is that because of Section 52 of the
      NDPS Act, the provisions of the CrPC apply to the arrests made
      under the NDPS Act insofar as they are not inconsistent with the
      NDPS Act. [Para 4.1]
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             Frank Vitus v. Narcotics Control Bureau & Ors.


     Code of Criminal Procedure, 1973 – s.437(3) – Meaning of the
     words “interest of justice”:
     Held: A broader meaning cannot be assigned to the words “interest
     of justice” in Section 437(3) of CrPC – By borrowing the language
     used by the Supreme Court in its earlier decisions, it is clear that
     the bail conditions cannot be fanciful, arbitrary or freakish – The
     object of imposing conditions of bail is to ensure that the accused
     does not interfere or obstruct the investigation in any manner,
     remains available for the investigation, does not tamper with or
     destroy evidence, does not commit any offence, remains regularly
     present before the Trial Court, and does not create obstacles in the
     expeditious conclusion of the trial – The conditions incorporated in
     the order granting bail must be within the four corners of Section
     437(3) – The bail conditions must be consistent with the object
     of imposing conditions – While imposing bail conditions, the
     Constitutional rights of an accused, who is ordered to be released
     on bail, can be curtailed only to the minimum extent required –
     Even an accused convicted by a competent Court and undergoing
     a sentence in prison is not deprived of all his rights guaranteed
     by Article 21 of the Constitution. [Para 7]

                              Case Law Cited
     Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC 74; Munish
     Bhasin v. State (NCT of Delhi) [2009] 2 SCR 806 : (2009) 4 SCC
     45; State of A.P. v. Challa Ramkrishna Reddy [2000] 3 SCR 644 :
     (2000) 5 SCC 712 – relied on.
     Supreme Court Legal Aid Committee Representing Undertrial
     Prisoners v. Union of India & Ors. [1994] Supp. 4 SCR 386 :
     (1994) 6 SCC 731; Tofan Singh v. State of Tamil Nadu [2020] 12
     SCR 583 : (2021) 4 SCC 1 – referred to.

                                List of Acts
     Constitution of India; Narcotic Drugs and Psychotropic Substances
     Act, 1985; Code of Criminal Procedure, 1973.

                             List of Keywords
     Bail; Terms and conditions in a bail; Section 437(3) of Code of
     Criminal Procedure, 1973; Section 37 of Narcotic Drugs and
     Psychotropic Substances Act, 1985; Section 52 of Narcotic
     Drugs and Psychotropic Substances Act, 1985; Meaning of the
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       words “interest of justice” in section 437(3) of Code of Criminal
       Procedure, 1973; A condition of dropping pin on Google Map in a
       bail; A condition of furnishing certificate of the Embassy in a bail;
       Article 21 in the Constitution of India; Right to privacy.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
       2814-2815 of 2024
       From the Judgment and Order dated 31.05.2022 and 18.08.2022 of
       the High Court of Delhi at New Delhi in BA No. 4187 of 2020
                           Appearances for Parties
       Varun Mishra, Adv. for the Appellant.
       Vinay Navare, Sr. Adv., Amicus Curiae.
       Vikramjit Banerjee, A.S.G., Venkata Raghu Vamsy Dasika, Upendra
       Mishra, Rahul G Tanwani, Prasenjeet Mohapatra, Arvind Kumar
       Sharma, Gurmeet Singh Makker, Prashant Rawat, Advitiya Awasthi,
       Annirudh Sharma-ii, Ashok Panigrahi, Raj Bahadur Yadav, Abhishek
       Singh, M/S. Trilegal Advocates On Record, Lzafeer Ahmad B. F.,
       Anuj Berry, Ms. Anusha Ramesh, Ms. Karishma Sundara, Aparajita
       Sen, Ms. Muskan Wadhwa, Advs. for the Respondents.
                  Judgment / Order of the Supreme Court

                                      Order
       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 conditions incorporated in the said order. The terms and
       conditions incorporated were in terms of the directions issued by
       this Court in paragraph no.15 of its decision in the case of Supreme
       Court Legal Aid Committee Representing Undertrial Prisoners v.
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                Frank Vitus v. Narcotics Control Bureau & Ors.


      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:
                     “(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).



1    [1994] Supp. 4 SCR 386 : (1994) 6 SCC 731
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            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 Court or the Court of Session
            shall, before granting bail to a person who is accused
            of an offence which is triable exclusively by the Court of
            Session or which, though not so triable, is punishable
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             Frank Vitus v. Narcotics Control Bureau & Ors.


           with imprisonment for life, give notice of the application
           for bail to the Public Prosecutor unless it is, for reasons to
           be recorded in writing, of opinion that it is not practicable
           to give such notice:
           [Provided further that the High Court or the Court of Session
           shall, before granting bail to a person who is accused of
           an offence triable under sub-section (3) of Section 376
           or Section 376-AB or Section 376-DA or Section 376-DB
           of the Indian Penal Code (45 of 1860), give notice of the
           application for bail to the Public Prosecutor within a period
           of fifteen days from the date of receipt of the notice of
           such application.]
           [(1-A) The presence of the informant or any person
           authorised by him shall be obligatory at the time of hearing
           of the application for bail to the person under sub-section
           (3) of Section 376 or Section 376-AB or Section 376-DA
           or Section 376-DB of the Indian Penal Code (45 of 1860)].
           (2) A High Court or Court of Session may direct that any
           person who has been released on bail under this Chapter
           be arrested and commit him to custody.”
     Section 437(3) reads thus:
           “437. When bail may be taken in case of non-bailable
           offence.—
           (1) …………………………………………………
           (2)…………………………………………………
           (3) When a person accused or suspected of the commission
           of an offence punishable with imprisonment which may
           extend to seven years or more or of an offence under
           Chapter VI, Chapter XVI or Chapter XVII of the Indian
           Penal Code (45 of 1860) or abetment of, or conspiracy
           or attempt to commit, any such offence, is released on
           bail under sub-section (1), the [Court shall impose the
           conditions,—
           (a) that such person shall attend in accordance with the
           conditions of the bond executed under this Chapter,
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           (b) that such person shall not commit an offence similar
           to the offence of which he is accused, or suspected,
           of the commission of which he is suspected, and
           (c) that such person shall not directly or indirectly
           make any inducement, threat or promise to any person
           acquainted with the facts of the case so as to dissuade
           him from disclosing such facts to the Court or to any
           police officer or tamper with the evidence,
           and may also impose, in the interests of justice, such
           other conditions as it considers necessary.]
           (4) …………………………………………”
       4.1 In this case, we are concerned with the offences under the
           NDPS Act which are punishable with imprisonment of seven
           years or more. The provision relating to bail is contained in
           Section 37 of the NDPS Act, which reads thus:
                “37. Offences to be cognizable and non-bailable.—
                (1) Notwithstanding anything contained in the Code
                of Criminal Procedure, 1973 (2 of 1974),—
                (a) every offence punishable under this Act shall be
                cognizable;
                (b) no person accused of an offence punishable for
                [offences under Section 19 or Section 24 or Section
                27-A and also for offences involving commercial
                quantity] shall be released on bail or on his own
                bond unless—
                (i) the Public Prosecutor has been given an opportunity
                to oppose the application for such release, and
                (ii) where the Public Prosecutor opposes the
                application, the court is satisfied that there are
                reasonable grounds for believing that he is not guilty
                of such offence and that he is not likely to commit
                any offence while on bail.
                (2) The limitations on granting of bail specified in
                clause (b) of sub-section (1) are in addition to the
                limitations under the Code of Criminal Procedure,
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                Frank Vitus v. Narcotics Control Bureau & Ors.


                     1973 (2 of 1974), or any other law for the time being
                     in force on granting of bail]”
      Under Section 37 of the NDPS Act, the Court’s power to grant bail is
      constrained by Sub-section 1(b)(ii). However, once a case is made
      out for a grant of bail in accordance with Section 37, the conditions
      of bail will have to be in terms of Section 437(3) of the CrPC. The
      reason is that because of Section 52 of the NDPS Act, the provisions
      of the CrPC apply to the arrests made under the NDPS Act insofar
      as they are not inconsistent with the NDPS Act.
5.    Apart from conditions (a) to (c) in Section 437(3) of the CrPC, there
      is a power to impose additional conditions “in the interest of justice”.
      The scope of the concept of “interest of justice” in Section 437(3) of
      the CrPC has been considered by this Court in the case of Kunal
      Kumar Tiwari v. State of Bihar2. In paragraph 9, this Court held thus:
             “9. There is no dispute that clause (c) of Section 437(3)
             allows courts to impose such conditions in the interest
             of justice. We are aware that palpably such wordings
             are capable of accepting broader meaning. But such
             conditions cannot be arbitrary, fanciful or extend
             beyond the ends of the provision. The phrase “interest
             of justice” as used under the clause (c) of Section
             437(3) means “good administration of justice” or
             “advancing the trial process” and inclusion of broader
             meaning should be shunned because of purposive
             interpretation.”
                                                       (emphasis added)
6.    In view of Section 438(2)(iv) of the CrPC, while granting anticipatory
      bail, the Court is empowered to impose the conditions as provided
      in Section 437(3) of the Cr. PC. While dealing with the condition
      which can be imposed while granting anticipatory bail, this Court,
      in the case of Munish Bhasin v. State (NCT of Delhi)3, held thus:
             “10. It is well settled that while exercising discretion
             to release an accused under Section 438 of the Code



2    (2018) 16 SCC 74
3    [2009] 2 SCR 806 : (2009) 4 SCC 45
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             neither the High Court nor the Sessions Court would
             be justified in imposing freakish conditions. There is no
             manner of doubt that the court having regard to the facts
             and circumstances of the case can impose necessary, just
             and efficacious conditions while enlarging an accused on
             bail under Section 438 of the Code. However, the accused
             cannot be subjected to any irrelevant condition at all.”
                                                       (emphasis added)
7.     A broader meaning cannot be assigned to the words “interest of
       justice” in Section 437(3) of Cr. PC. By borrowing the language
       used by this Court in the above decisions, we can say that the bail
       conditions cannot be fanciful, arbitrary or freakish. The object of
       imposing conditions of bail is to ensure that the accused does not
       interfere or obstruct the investigation in any manner, remains available
       for the investigation, does not tamper with or destroy evidence, does
       not commit any offence, remains regularly present before the Trial
       Court, and does not create obstacles in the expeditious conclusion
       of the trial. The Courts have imposed a condition that the accused
       should cooperate with the investigation when bail is granted before
       filing the final report or chargesheet. Cooperating with the investigation
       does not mean that the accused must confess. The conditions
       incorporated in the order granting bail must be within the four corners
       of Section 437(3). The bail conditions must be consistent with the
       object of imposing conditions. While imposing bail conditions, the
       Constitutional rights of an accused, who is ordered to be released
       on bail, can be curtailed only to the minimum extent required. Even
       an accused convicted by a competent Court and undergoing a
       sentence in prison is not deprived of all his rights guaranteed by
       Article 21 of the Constitution. This Court, in the case of State of
       A.P. v. Challa Ramkrishna Reddy,4 reiterated the settled position
       by holding as follows:
             “22. Right to life is one of the basic human rights. It is
             guaranteed to every person by Article 21 of the Constitution
             and not even the State has the authority to violate that
             right. A prisoner, be he a convict or undertrial or a detenu,
             does not cease to be a human being. Even when lodged


4    [2000] 3 SCR 644 : (2000) 5 SCC 712
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           in the jail, he continues to enjoy all his fundamental
           rights including the right to life guaranteed to him
           under the Constitution. On being convicted of crime
           and deprived of their liberty in accordance with the
           procedure established by law, prisoners still retain
           the residue of constitutional rights.”
                                                   (emphasis added)
     7.1. We are dealing with a case of the accused whose guilt is
          yet to be established. So long as he is not held guilty, the
          presumption of innocence is applicable. He cannot be deprived
          of all his rights guaranteed under Article 21. The Courts must
          show restraint while imposing bail conditions. Therefore,
          while granting bail, the Courts can curtail the freedom of
          the accused only to the extent required for imposing the bail
          conditions warranted by law. Bail conditions cannot be so
          onerous as to frustrate the order of bail itself. For example,
          the Court may impose a condition of periodically reporting to
          the police station/Court or not travelling abroad without prior
          permission. Where circumstances require, the Court may
          impose a condition restraining an accused from entering a
          particular area to protect the prosecution witnesses or the
          victims. But the Court cannot impose a condition on the
          accused to keep the Police constantly informed about his
          movement from one place to another. The object of the bail
          condition cannot be to keep a constant vigil on the movements
          of the accused enlarged on bail. The investigating agency
          cannot be permitted to continuously peep into the private
          life of the accused enlarged on bail, by imposing arbitrary
          conditions since that will violate the right of privacy of the
          accused, as guaranteed by Article 21. If a constant vigil is
          kept on every movement of the accused released on bail by
          the use of technology or otherwise, it will infringe the rights of
          the accused guaranteed under Article 21, including the right to
          privacy. The reason is that the effect of keeping such constant
          vigil on the accused by imposing drastic bail conditions will
          amount to keeping the accused in some kind of confinement
          even after he is released on bail. Such a condition cannot
          be a condition of bail.
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8.     In view of sub-section (2) of Section 441 of the CrPC, the conditions
       imposed by the Court while granting bail always stand incorporated
       in the bail bond executed by the accused. Therefore, the accused is
       bound by the conditions imposed while granting bail. If the accused,
       after being enlarged on bail, commits a breach of bail conditions or
       commits any offence, the Courts always have the power to cancel
       the bail.
9.     A condition cannot be imposed while granting bail which is impossible
       for the accused to comply with. If such a condition is imposed, it
       will deprive an accused of bail, though he is otherwise entitled to it.
       CONDITION OF DROPPING PIN ON GOOGLE MAP
10. Firstly, we will deal with the issue of the condition of dropping a PIN
    on Google Maps. The condition imposed on the appellant of dropping
    a PIN on Google Map gives an impression that the condition will
    enable the first respondent Narcotics Control Bureau (NCB) to monitor
    the movements of the accused on a real-time basis, which will be
    violative of the right to privacy guaranteed under Article 21 of the
    Constitution of India. To understand the technical aspects of “dropping
    a PIN on Google Map”, we issued a notice to Google LLC, having
    its office in the USA. Accordingly, Shri R. Suresh Babu, authorised
    signatory of Google LLC, has filed an affidavit. Paragraphs 5 to 10
    of his affidavit read thus:
            “5. Google Maps is a web and app-based service that
            enables users to search for and navigate to local places.
            It inter alia offers real-time traffic conditions, and route
            planning for travelling by foot, car, bike, air, and public
            transportation. Google Maps can be accessed through the
            Google Maps application available on mobiles or through
            a web browser at www.google.com/maps.
            6. One of the features available to users on Google
            Maps is the ability of users to drop a ‘PIN’ on a
            location of their choosing on the map. Dropping a
            PIN, allows the user to mark or identify a location on
            the map without necessarily requiring access to the
            user’s location data. Users may drop a PIN either on
            the mobile application or on the web browser. To drop a
            PIN, a user may either:
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                a.    press and hold the desired location where the
                      PIN is to be dropped on the map on the mobile
                      application; or
                b.    click on the desired location on the map on a
                      web browser.
           7. Upon dropping the PIN, the user dropping the PIN can
           identify the specific coordinates of the location on the map.
           Through the Google Maps app or through a web browser,
           the user dropping the PIN may opt to get directions to the
           location, mark the location with a label, add a business
           address to the location, or share the location with another
           user.
           8. The PIN identifies and marks a specific location of the
           user’s choosing on Google Maps. The PIN need not be
           dropped at the location where the user/the user’s device
           is located at the time of sharing the PIN. The PIN dropped
           and shared need not be the real-time location of the user
           sharing the PIN.
           9. Google Maps allows users to share information, such
           as the PIN, with third parties. This is explained in Google’s
           privacy policy, which is available at https:policies.google.
           com/privacy?hI=en-US, and shares as follows: “Many of
           our services let you share information with other people,
           and you have control over how you share [emphasis
           supplied]”. Users consent to the privacy policy when they
           create a Google Account. In this case, if a user wants to
           share a PIN, they can do so by clicking on the ‘share’
           button. This generates a link to Google Maps that the
           user can share with others through messaging platforms
           or other modes of online communication. When clicked,
           the link directs users (having access to the link) to the
           location where the PIN was dropped on the map.
           10. The Google Maps PIN feature, which includes the
           creation of a PIN or the sharing of such a PIN with another
           user, does not impinge on the user’s privacy as the user
           has full control over sharing of such information. The
           user with access to the link can only access the static
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            location pinned and shared on Google Maps. The pinned
            location does not enable real-time tracking of the user
            or their device. Even if the PIN were to coincide with a
            user’s location at a given time, this would (a) be the static
            location pinned by the user; and (b) only be accessible to
            others when a user affirmatively shares the PIN with them
            by clicking on the share button.”
                                                      (emphasis added)
       10.1. In paragraph 10 of the affidavit, Google LLC stated that the user
             has full control over sharing PINs with other users. Moreover,
             it does not impinge on the user’s privacy, as the user retains
             full control. Most importantly, it is stated that the PIN location
             does not enable real-time tracking of the user or the user’s
             device. Therefore, the condition of the accused dropping a pin
             on Google Maps, as it stands, is completely redundant as the
             same does not help the first respondent.
       10.2. Imposing any bail condition which enables the Police/
             Investigation Agency to track every movement of the accused
             released on bail by using any technology or otherwise would
             undoubtedly violate the right to privacy guaranteed under
             Article 21. In this case, the condition of dropping a PIN on
             Google Maps has been incorporated without even considering
             the technical effect of dropping a PIN and the relevance of
             the said condition as a condition of bail. This cannot be a
             condition of bail. The condition deserves to be deleted and
             ordered accordingly. In some cases, this Court may have
             imposed a similar condition. But in those cases, this Court was
             not called upon to decide the issue of the effect and legality
             of such a condition.
       THE CONDITION OF FURNISHING CERTIFICATE OF THE
       EMBASSY
11. Now, we come to the decision of the Supreme Court Legal Aid
    Committee1 relied upon by the High Court. In the first part of
    paragraph 15, the prayers made in the petition filed before this Court
    have been set out. We are quoting the relevant part of paragraph
    15, which reads thus:
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             Frank Vitus v. Narcotics Control Bureau & Ors.


           “15. But the main reason which motivated the Supreme
           Court Legal Aid Society to file this petition under
           Article 32 of the Constitution was the delay in the
           disposal of cases under the Act involving foreigners.
           The reliefs claimed included a direction to treat further
           detention of foreigners, who were languishing in jails
           as undertrials under the Act for a period exceeding two
           years, as void or in any case they be released on bail
           and it was further submitted by counsel that their cases
           be given priority over others. When the petition came up
           for admission it was pointed out to counsel that such an
           invidious distinction between similarly situate undertrials
           who are citizens of this country and who are foreigners
           may not be permissible under the Constitution and even if
           priority is accorded to the cases of foreigners it may have
           the effect of foreigners being permitted to jump the queue
           and slide down cases of citizens even if their cases are
           old and pending since long. Counsel immediately realised
           that such a distinction if drawn would result in cases of
           Indian citizens being further delayed at the behest of
           foreigners, a procedure which may not be consistent with
           law. He, therefore, rightly sought permission to amend
           the cause-title and prayer clauses of the petition which
           was permitted. In substance the petitioner now prays that
           all undertrials who are in jail for the commission of any
           offence or offences under the Act for a period exceeding
           two years on account of the delay in the disposal of cases
           lodged against them should be forthwith released from jail
           declaring their further detention to be illegal and void and
           pending decision of this Court on the said larger issue,
           they should in any case be released on bail. ………….”
                                                   (emphasis added)
     In the same paragraph 15, directions have been issued which read
     thus:
           “We, therefore, direct as under:
                (i)   Where the undertrial is accused of an
                      offence(s) under the Act prescribing a
                      punishment of imprisonment of five years
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                   or less and fine, such an undertrial shall
                   be released on bail if he has been in jail
                   for a period which is not less than half the
                   punishment provided for the offence with
                   which he is charged and where he is charged
                   with more than one offence, the offence
                   providing the highest punishment. If the
                   offence with which he is charged prescribes
                   the maximum fine, the bail amount shall be
                   50% of the said amount with two sureties
                   for like amount. If the maximum fine is not
                   prescribed bail shall be to the satisfaction
                   of the Special Judge concerned with two
                   sureties for like amount.
            (ii)   Where the undertrial accused is charged
                   with an offence(s) under the Act providing for
                   punishment exceeding five years and fine, such
                   an undertrial shall be released on bail on the
                   term set out in (i) above provided that his bail
                   amount shall in no case be less than Rs 50,000
                   with two sureties for like amount.
            (iii) Where the undertrial accused is charged
                  with an offence(s) under the Act punishable
                  with minimum imprisonment of ten years and
                  a minimum fine of Rupees one lakh, such
                  an undertrial shall be released on bail if he
                  has been in jail for not less than five years
                  provided, he furnishes bail in the sum of
                  Rupees one lakh with two sureties for like
                  amount.
            (iv) Where an undertrial accused is charged for the
                 commission of an offence punishable under
                 Sections 31 and 31-A of the Act, such an
                 undertrial shall not be entitled to be released
                 on bail by virtue of this order.
       The directives in clauses (i), (ii) and (iii) above shall
       be subject to the following general conditions:
[2024] 7 S.C.R.                                                             113

             Frank Vitus v. Narcotics Control Bureau & Ors.


                (i)    The undertrial accused entitled to be
                       released on bail shall deposit his passport
                       with the learned Judge of the Special Court
                       concerned and if he does not hold a passport,
                       he shall file an affidavit to that effect in the
                       form that may be prescribed by the learned
                       Special Judge. In the latter case the learned
                       Special Judge will, if he has reason to doubt the
                       accuracy of the statement, write to the Passport
                       Officer concerned to verify the statement and
                       the Passport Officer shall verify his record and
                       send a reply within three weeks. If he fails to
                       reply within the said time, the learned Special
                       Judge will be entitled to act on the statement
                       of the undertrial accused;
                (ii)   the undertrial accused shall on being released
                       on bail present himself at the police station which
                       has prosecuted him at least once in a month
                       in the case of those covered under clause (i),
                       once in a fortnight in the case of those covered
                       under clause (ii) and once in a week in the case
                       of those covered by clause (iii), unless leave of
                       absence is obtained in advance from the Special
                       Judge concerned;
                (iii) the benefit of the direction in clauses (ii) and
                      (iii) shall not be available to those accused
                      persons who are, in the opinion of the learned
                      Special Judge, for reasons to be stated in
                      writing, likely to tamper with evidence or
                      influence the prosecution witnesses;
                (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;
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                 (v)   the undertrial accused shall not leave the
                       area in relation to which the Special Court
                       is constituted except with the permission of
                       the learned Special Judge;
                 (vi) the undertrial accused may furnish bail by
                      depositing cash equal to the bail amount;
                 (vii) the Special Judge will be at liberty to cancel
                       bail if any of the above conditions are
                       violated or a case for cancellation of bail is
                       otherwise made out; and
                 (viii) after the release of the undertrial accused
                        pursuant to this order, the cases of those
                        undertrials who have not been released
                        and are in jail will be accorded priority and
                        the Special Court will proceed with them as
                        provided in Section 309 of the Code.”
                                                       (emphasis added)
       However, paragraph 16 is relevant, which reads thus:
            “16. We may state that the above are intended to
            operate as one-time directions for cases in which the
            accused persons are in jail and their trials are delayed.
            They are not intended to interfere with the Special
            Court’s power to grant bail under Section 37 of the Act.
            The Special Court will be free to exercise that power
            keeping in view the complaint of inordinate delay in
            the disposal of the pending cases. The Special Court
            will, notwithstanding the directions, be free to cancel bail
            if the accused is found to be misusing it and grounds for
            cancellation of bail exist. Lastly, we grant liberty to apply in
            case of any difficulty in the implementation of this order.”
                                                       (emphasis added)
       11.1. The directions contained in paragraph 15 were to operate
             as one-time directions applicable only to the pending cases
             of the accused who were in jail on the date of the judgment.
             These conditions were required to be incorporated in the order
             while releasing an accused on bail as a one-time measure.
[2024] 7 S.C.R.                                                          115

             Frank Vitus v. Narcotics Control Bureau & Ors.


            Paragraph 16 clarifies that if a bail application is made to the
            Special Court with a grievance regarding inordinate delay
            in the disposal of pending cases, the Special Court will be
            empowered to exercise power to grant bail in light of what is
            held in paragraph 15. Therefore, it is not necessary that in every
            case where bail is granted to an accused in an NDPS case
            who is a foreign national on the ground of long incarceration
            of more than 50% of the minimum sentence, the condition of
            obtaining a ‘certificate of assurance’ from the Embassy/High
            Commission should be incorporated. It will depend on the
            facts of each case.
12. Even if such a condition is incorporated, on an application made by
    the accused, the concerned Embassy/High Commission declines or
    fails to issue the certificate within a reasonable time, say within a
    period of seven days, the Court always has the power to dispense
    with the said condition. Grant of such a certificate by the Embassy/
    High Commission is beyond the control of the accused to whom bail
    is granted. Therefore, when the Embassy/High Commission does
    not grant such a certificate within a reasonable time, as explained
    above, the accused, who is otherwise held entitled to bail, cannot be
    denied bail on the ground that such a condition, which is impossible
    for the accused to comply with, has not been complied with. Hence,
    the Court will have to delete the condition. If the Embassy/High
    Commission records reasons for denying the certificate and the
    reasons are based on the adverse conduct of the accused based
    on material, the Court can always consider the reasons recorded
    while considering an application for dispensing with the condition.
    However, the Courts must remember that the accused has no right
    to compel the Embassy/High Commission to issue such a certificate.
    There can be very many reasons for recording adversely which again
    cannot be the basis to deny bail already granted. In such a case,
    instead of the condition of obtaining such a certificate, the condition
    of surrendering the passport and regularly reporting to the local
    police station/Trial Court can always be imposed, depending upon
    the facts of each case.
13. Coming to the facts of the case, bail has been granted to the appellant
    firstly on the ground that the appellant has been implicated based
    on statements recorded under Section 67 of the NDPS Act, and that
    such statements are entirely inadmissible in view of the decision
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       of this Court in the case of Tofan Singh v. State of Tamil Nadu 5.
       So, bail has been granted on merits as well. Secondly, the bail has
       also been granted relying upon what is held in paragraph 15 of the
       decision in the case of Supreme Court Legal Aid Committee 1. As
       the bail was granted on merits by relying upon the decision of this
       Court in the case of Tofan Singh 2, there was no reason for the High
       Court to have imposed all the onerous conditions incorporated in
       paragraph 15 of the decision in the case of Supreme Court Legal
       Aid Committee 1.
14. Therefore, in view of the above discussion, we are of the view that it is
    not necessary to refer the case to a larger Bench for reconsideration
    of condition No. (iv) in paragraph 15 of the decision in the case of
    Supreme Court Legal Aid Committee1.
15. Based on our findings on the two issues mentioned above, we direct
    that the two conditions in the order granting bail to the appellant,
    namely, obtaining a certificate from the Embassy/High Commission
    and dropping a pin of Google Maps, shall stand deleted.
16. The case shall be listed on 15 July 2024 for passing final orders after
    considering the compliances made by the appellant so far.

       Result of the case: Listed for final orders.



       †
           Headnotes prepared by: Ankit Gyan




5   [2020] 12 SCR 583 : (2021) 4 SCC 1