“No foreigner has any right to enter and stay in India without valid passport and Visa”
Onyeka Samuel v. State of Himachal Pradesh
Before High Court of Himachal Pradesh at Shimla
Crl. Mis. Petition No.2757/2023
Regular Bail petition was dismissed by Hon’ble Mr. Justice Rakesh Kainthla J on 12.12.2023
Issue
Regular bail is sought by the Petitioner-Onyeka.
He is booked for offences punishable under section 21 and section 29 of the Narcotic Drugs and Psychotropic Substance (NDPS) & Section 14 of the Foreigners Act as he didn’t possess valid Visa and passport.
Submission of the counsel of the petitioner
There is no evidence against the petitioner except the statement made by Gaurav, the co-accused, which is not a legal piece of evidence.
He is in custody since arrest.
He would abide by all the terms and conditions as would be imposed by the court
Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
Submission of the Counsel for the State
The Police while patrolling on 23.08.2023 received a secret information at 6:00 pm that Shivam is selling heroin and in case of his search, a huge quantity of heroin could be recovered.
The police associated independent witnesses and found Shivam.
Shivam threw something on seeing the police and tried to run away.
The police apprehended him and found 5.42 grams of heroin.
The police arrested him and recovered the heroin.
The police conducted the investigation.
Shivam revealed on enquiry that he had purchased heroin from Gaurav.
The police also recovered a mobile phone containing a chat between Gaurav and the petitioner, which clearly shows that the petitioner had supplied heroin to Gaurav.
The police arrested Gaurav, who revealed that heroin was sold to him by the present petitioner.
The police arrested the petitioner and recovered 15.95 grams of heroin from him.
The police seized the heroin.
As per the result of the analysis, the substance found in the possession of the petitioner and Gaurav was confirmed to be Diacetylmorphine (Heroin).
The police have specifically stated that Section 14 of the Foreigners Act was added because the petitioner could not produce his passport and visa.
The consumption of narcotics is adversely affecting the young generation of the society, therefore, prayed that the present petition be dismissed.
Observation of the Court
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.
There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail
Order
The petitioner is not entitled for bail.
Seema Bhatnagar