JUDGMENT Anoop Chitkara, J. - An under trial prisoner, holder of Nigerian Passport, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 21 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possessing 90.5 grams of heroin (Diacetylmorphine); and under Section 14 of Foreigners Act, 1946, for staying in India after expiry of Visa. 2. Based on a First Information Report (FIR), the police arrested the petitioner, on Mar 10, 2019, in FIR No. 30 of 2019, dated Mar 8, 2019, registered under Sections 21 & 29 of the NDPS Act, in the file of Police Station Bhoranj, District Hamirpur, Himachal Pradesh, disclosing cognizable and non-bailable offenses. I have heard counsel for the petitioner and Mr. Nand Lal Thakur, Additional Advocate General for the State of HP. The Police have filed the latest status report. Facts : 3. The gist of the case, sufficient to decide the present bail petition, discloses the following factual matrix: a) On Mar 7, 2019, a police party, headed by the Station House Officer (SHO) of the Police Station Bhoranj, District Hamirpur, HP, recovered 6.80 grams of heroin from two persons, namely Dipender @ Dipu and Amit Chauhan @ Mittu. b) After recovery of the heroin, the Police arrested both these persons and thoroughly interrogated them. During their interrogation, the said persons revealed that they had purchased heroin from one African person who claimed to be a citizen of Nigeria. The accused further told that they would chat with him on WhatsApp, and also call him on WhatsApp. c) Upon this, one of the police officials decoyed as a buyer and got in touch with the said Nigerian National. After striking a deal, the said Police officer went to Delhi to take the controlled delivery of the substance. The Police took along the accused for identification. d) On Mar 10, 2019, the Police detained the said African, from a locality in Delhi. The other accused persons identified him to the same Nigerian National, petitioner herein, from whom they had purchased heroin. e) After that, the police searched the residential house of the petitioner and recovered 90.5 grams of heroin. f) The Police also observed that the Visa of India had expired. Consequently, the Investigating officer added S. 14 of the Foreigners Act, 1946, in FIR. e) After that, the police searched the residential house of the petitioner and recovered 90.5 grams of heroin. f) The Police also observed that the Visa of India had expired. Consequently, the Investigating officer added S. 14 of the Foreigners Act, 1946, in FIR. g) On obtaining transit remand from a Delhi Court, the Police brought the accused to Hamirpur, HP, where the Police produced him before the Judicial Magistrate, who remanded him initially to the Police custody and later on to the Judicial custody, which is continuing till date. Analysis And Reasoning: 4. While dealing with the bail applications of foreign nationals, the most significant challenge the Courts face is to secure their presence. Code of Criminal Procedure, 1973, (CrPC), has classified two types of offenses, bailable and non-bailable. Section 2(a) of the CrPC defines bailable as the offenses shown as bailable in the First Schedule of CrPC or any other law. All the left-out crimes are deemed to be Non-bailable. In bailable offenses, a Police officer is under an obligation to release the accused on bail, subject to her furnishing bail bonds. It means that a foreign national cannot be denied bail in a bailable offense. Therefore, the question of securing her presence is not an absolute condition. However, in heinous and bone-chilling crimes, all which certainly are non-bailable, the presence of the accused must be ensured by the Courts, before granting the bail. Thus, while dealing with bail petitions of accused who are not the citizens of India, the most important parameter to keep in mind is the gravity of the offense. 5. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. Judicial Precedents : 6. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. Judicial Precedents : 6. In Lachhman Dass v. Resham Chand Kaler, (2018) 3 SCC 187 , Supreme Court holds, '10. The law under section 439 Cr.P.C is very clear and in the eye of the law every accused is the same irrespective of their nationality.' 7. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 , A Constitutional bench of Supreme Court holds, '30. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail' 8. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42 , a three-member bench of Supreme Court holds, '18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so.' 9. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 , Supreme Court holds: ' "Bail or jail ?" - at the pre-trial or post-conviction stage - belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case- flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Article 21 are the life of that human right. 2. The doctrine of Police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.' 10. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.' 10. In Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 , Supreme Court holds, 'Relevant consideration for exercise of the power 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case [ (1980)2 SCC 565 ] that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Criminal Procedure Code by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail : i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in 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 an order of bail.' 11. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 , Supreme Court holds, ' A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 4. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658 . 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days. 6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.' 12. Keeping in view the quantity of contraband, I am of the considered opinion that the judicial custody of the petitioner is not going to serve any purpose whatsoever and I am inclined to grant him bail on the following grounds: a) As per the FIR, the substance involved in is Heroin, mentioned at Sr. Keeping in view the quantity of contraband, I am of the considered opinion that the judicial custody of the petitioner is not going to serve any purpose whatsoever and I am inclined to grant him bail on the following grounds: a) As per the FIR, the substance involved in is Heroin, mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances. b) The quantity of the substance recovered is 90.5 grams (heroin), which is less than Commercial Quantity but greater than Small Quantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offense. c) The petitioner is a Nigerian National, holding a Passport of Nigeria, bearing Passport No. A06015538. The State has already verified from the concerned Embassy about the genuineness of the Passport. d) The petitioner is in custody since Mar 10, 2019. e) In the status report, there is no mention of the previous criminal history of the bail petitioner. f) The investigation in the case is complete, and police report under Section 173 (2) of the CrPC, already stands filed in the Court of competent jurisdiction. g) I am of the considered opinion that, prima facie , petitioner has made out a case for grant of bail and his incarceration is not going to serve any purpose. 13. As a result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing a personal bond in the sum of Rupees One lac fifty thousand only, (INR One hundred and fifty thousand only), to the satisfaction of the trial Court, by depositing it in the official account, as per the details and directions of the trial Court. Despite whatever is being stated in the following paragraphs, keeping in view the requirement of Chapter XXXIII CrPC the petitioner shall furnish two sureties in the sum of rupees ten thousand each, to the satisfaction of the trial Court. 14. I have arrived at the amount mentioned above of bond money by converting the annual per capita income of Nigeria, and after converting it in INR and rounding it upwards. 14. I have arrived at the amount mentioned above of bond money by converting the annual per capita income of Nigeria, and after converting it in INR and rounding it upwards. The per capita income of Nigeria is 2033 USD. Multiplying it with rate of rupee to USD, it comes to approx. 1,45,000 INR, rounded to INR 1,50,000/-. I make it clear that these are not guidelines, and it is the absolute discretion of the Court granting bail, to arrive at the bonds and its value. 15. The logic behind furnishing personal bond with bank deposit is that we know that Africans have hardly any relatives in India. Even their friends are just contacts, and it would be impossible for them to produce them before Court, also if they stand as sureties. When foreign nationals are asked to furnish surety bonds, then the sureties retain at least 100% of the bond amount as security to take care of proceedings under Section 446 of CrPC. However, even after the trial is over, it is practically impossible to recover the money back unless the surety turns out to be an honest person. Even in such a situation, what is returned is Principal without any interests. It has led to a racket of surety providers in exchange for money. Therefore, the purpose of surety bonds has become an exercise in futile, and the better option is to keep the security deposit. 16. On receipt of the money in the official account, the Trial Court shall issue directions to appropriate Court and/or all concerned, to keep this amount in an automatically renewable fixed deposit, to be opened in any bank, owned or controlled by the Centre, State or their units. In case any orders are passed under Section 446 CrPC, then the bail amount shall be dealt with as per such directions. After the completion of the Trial, and the period specified in S. 437-A, but subject to the instructions of the Appellate Courts, if any, all this money, along with interest, except taxes, shall be refunded to the petitioner, by transferring in his bank account, whether in India or outside, following the law. 17. The attesting officer of the personal bonds shall mention the permanent address of the petitioner along with the Passport number and details on the personal bond. 17. The attesting officer of the personal bonds shall mention the permanent address of the petitioner along with the Passport number and details on the personal bond. The learned counsel for the petitioner, as well as the attesting officer, shall explain the conditions of this bail to the petitioner. 18. This Court is granting the bail subject to the conditions mentioned herein. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: a) The Petitioner shall not leave India during the pendency of the trial, and after that in terms of the bond submitted under Section 437- A of CrPC, without the permission of the Trial Court. b) The petitioner undertakes not to contact the complainant and witnesses to threaten or browbeat them or to use any pressure tactics. c) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever. d) The petitioner shall not hamper the investigation. e) The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. f) The petitioner undertakes to attend the trial. g) In case, the petitioner is arraigned as an accused of the commission of any offense, prescribing the sentence of imprisonment for more than seven years, and also if the bail petitioner is arraigned as an accused in any case under the provisions of the NDPS Act, irrespective of the quantity, be it small quantity, then within thirty days of knowledge of such FIR, the petitioner shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR and it shall be open for the State to apply to this Court, for cancellation of this bail, if it deems fit and proper. 19. It is clarified that the present bail order is only for the FIR, as mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner. 20. 19. It is clarified that the present bail order is only for the FIR, as mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner. 20. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case, and the trial Court shall decide the matter uninfluenced by any observation made in this order. 21. Although the Court has granted bail in favor of accused, still neither the issue comes to an end, nor does the terms of justice. In the interest of equity and fair play, it needs further consideration. Given the following reasoning, this Court is requesting the Trial Court to expedite the trial. 22. Every visitor to our country comes for a specific purpose and for a limited time. However, if in the interregnum, she gets arraigned as an accused in a criminal case, then she gets stuck up here. It may be traumatic to her, and to her education, family, friends, business, and n number of things, which an ordinary human being cannot even imagine. The answer lies in the speedy disposal of cases of foreign nationals, whether they are in custody or on bail. 23. Petition stands allowed in the terms as mentioned earlier. Registry to send a copy of this order to Special Judge/Sessions Judge, Hamirpur, HP. Copy dasti.