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2021 DIGILAW 1400 (BOM)

Ugochukwu Solomon Ubabuko v. Union Of India

2021-10-21

MANISH PITALE

body2021
JUDGMENT Manish Pitale, J. - The Applicant claims violation of rights under Articles 21 and 22(2) of the Constitution of India and, on this basis, he claims that his detention stood vitiated and rendered illegal. This is the sole ground raised on his behalf for grant of bail. 2. The Applicant is a Nigerian National and he is facing prosecution for offences punishable under Sections 8(c), 20(b), 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act). The Applicant claims that even as per the documents of the Respondent no.1-Narcotic Control Bureau, he stood detained from 6.25 p.m. on 07.03.2021 and he was eventually produced before the Magistrate on 09.03.2021 in the morning at about 10.00 a.m., thereby showing that his right under Article 22(2) of the Constitution stood violated. As per the said Article of the Constitution, every person who is arrested and detained in custody, has to be produced before the nearest Magistrate within a period of 24 hours. It is contended that the said right of the Applicant was violated, thereby showing that his liberty was curtailed without adhering to procedure established by law and that, therefore, his right under Article 21 of the Constitution of India, stood violated. 3. Mr. Poulekar, the learned Counsel appearing for the Applicant, in order to support the aforesaid contention, invited attention of this Court to the panchanama dated 07.03.2021, executed by the concerned Officer of the Respondent no.1. It was brought to the notice of this Court that the panchanama records that at 6:25p.m., the team of Respondent no.1 reached the house of the Applicant. It is recorded that there was some resistance, wherein the Officer of the Respondent no.1 suffered minor injuries and that the Applicant and another person were taken into control. The panchanama records how the house was searched and that the Applicant as well as the other person were then taken to the Police Station. It is then recorded that contraband was recovered and upon the details of the contraband being recorded, the panchanama proceedings were completed at 1:20 a.m. on 08.03.2021. The learned Counsel further submitted that the Applicant was kept in the Police Station on the entire day of 08.03.2021 and thereafter, on 09.03.2021, he was produced before the Magistrate. 4. It is then recorded that contraband was recovered and upon the details of the contraband being recorded, the panchanama proceedings were completed at 1:20 a.m. on 08.03.2021. The learned Counsel further submitted that the Applicant was kept in the Police Station on the entire day of 08.03.2021 and thereafter, on 09.03.2021, he was produced before the Magistrate. 4. The learned Counsel then relied upon the contents of the application for judicial custody filed on behalf of the Respondent no.1, wherein it was stated that the Applicant along with the other accused person were both placed under arrest at 5:30 p.m. on 08.03.2021. It was submitted that such statement made in the application was immaterial to determine the period of 24 hours under Article 22(2) of the Constitution because, even as per the panchanama, at 6:25 p.m. on 07.03.2021 itself, the Applicant was detained as his movements were controlled and curtailed by the Respondent no.1. It was submitted that the Applicant had applied for bail before the Magistrate on 08.03.2021 itself. In this application, the Applicant had specifically raised the ground of violation of his Constitutional rights as he was not produced within 24 hours before the Magistrate. Instead of considering the said aspect of the matter, the Magistrate had simply directed the Applicant to be produced before the Special Court concerning NDPS offences. It was when the Applicant was produced before the said Special Court at about 3.00 p.m. on 09.03.2021, that an order was passed sending the Applicant to judicial custody. 5. According to the learned Counsel appearing for the Applicant, this issue was specifically raised even in the application for grant of bail filed before the learned Sessions Court but, by order dated 02.08.2021, the Court of Additional Sessions Judge, Mapusa, rejected the said contention by simply holding that once the Special Court had passed an order sending the Applicant to judicial custody, the said ground pertaining to violation of Articles 21 and 22(2) of the Constitution, could not be raised. According to the learned Counsel appearing for the Applicant, the Court of Additional Sessions Judge erred in relying upon the judgment of the Honble Supreme Court in the case of Pragyna Singh Thakur vs. State of Maharashtra (2011) 10 SCC 445 , for the reason that the said judgment has been held to be per incuriam by a coordinate Bench of the Honble Supreme Court in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav alias RajaRam Yadav alias Deepak Yadav, (2014) 9 SCC 457 and by a three Judge Bench of the Honble Supreme Court in the case of M. Ravindran vs. Intelligence Officer, Directorate of Revenue Intelligence (2021) 2 SCC 485 . 6. It was submitted on behalf of the Applicant that, once the said ground of violation of Article 21 and 22(2) of the Constitution was raised on behalf of the Applicant on 08.03.2021 itself before the Magistrate, even if subsequently an order was passed sending the Applicant to judicial custody, the right that accrued to the Applicant could not be denied to him. According to the learned Counsel for the Applicant, the present case is squarely covered by judgment of this Court in the case of Suaibo Ibow Casamma vs. Union of India 1994(1) Bom CR 64, wherein this Court in identical circumstances, held that the Applicant was entitled to be released on bail due to violation of his rights under Articles 21 and 22(2) of the Constitution. 7. On the other hand, Mr. Mahesh Amonkar, the learned Additional Public Prosecutor appearing on behalf of the Respondents, submitted that the sole ground raised on behalf of the Applicant was without any substance, for the reason that the Applicant was actually arrested at 5:30 p.m. on 07.03.2021 and he was produced before the Magistrate at 10:00 a.m. on 08.03.2021 and later at 3:00 p.m. on the same day before the Special Court. It was submitted that reliance placed on the contents of the panchanama on behalf of the Applicant would not be of any help to the Applicant because the procedure of searching the premises of the Applicant was followed in a strictly legal manner and the Applicant had voluntarily accompanied the Respondent no.1 to the Police Station for recording of his statement and the panchanama proceedings stood completed at 1:30 a.m. on 08.03.2021. It was submitted that the Applicant was neither detained nor arrested during this period and as stated in the application for judicial custody filed on behalf of the Respondent no.1, on 09.03.2021, the Applicant was actually arrested at 5:30 p.m. on 08.03.2021. It was submitted that the judgment in the case of Pragyna Singh Thakur (supra), was correctly relied upon by the Court of the Additional Sessions Judge. The subsequent judgments of the Honble Supreme Court in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav (supra), M. Ravindran (supra), holding the judgment in the case of Pragyna Singh Thakur (supra) as per incuriam concerned the question of entitlement of accused for default bail under Section 167(2) of the Criminal Procedure Code (Cr.P.C.). The said issue concerning violation of right under Article 22(2) of the Constitution, was not subject matter of consideration in the latter two judgments and, therefore, the observations specifically made in the case of Pragyna Singh Thakur (supra) on the aspect of Article 22(2) of the Constitution of India, were relevant. By inviting attention to relevant portions of the judgment in the case of Pragyna Singh Thakur (supra), the learned Additional Public Prosecutor submitted that even in that case, on facts, the Court had found that the accused was produced before the Magistrate within 24 hours of arrest. It was further submitted that the issue of entitlement of an accused for default bail under Section 167(2) of the Cr.P.C., was distinct from violation of right under Article 21 and 22(2) of the Constitution of India. It was further submitted that if the Applicant claimed violation of any such right, he could have filed a Writ Petition before this Court to raise such a grievance, but, in the face of the order passed by the Special Court sending him to judicial custody on 09.03.2021, no such ground was available for the Applicant to seek bail. 8. In the present case, before considering the position of law and apply the same to the facts of the present case, it needs to be first examined as to whether the Applicant is justified in claiming that he was detained on 07.03.2021 itself. In this regard, the contents of the panchanama dated 7th/8th March, 2021 assume significance. 9. 8. In the present case, before considering the position of law and apply the same to the facts of the present case, it needs to be first examined as to whether the Applicant is justified in claiming that he was detained on 07.03.2021 itself. In this regard, the contents of the panchanama dated 7th/8th March, 2021 assume significance. 9. A perusal of the panchanama shows that the Respondent no.1 has recorded that the house of the Applicant was raided at about 6:25 p.m. on 07.03.2021. It is recorded that when the Applicant and the other accused person saw the team of Respondent no.1 at the door, they resisted entry as a result of which, one of the Officers of the Respondent no.1 suffered minor injuries. It is significant that in the panchanama itself, it is specifically recorded that the Applicant and the other person were taken into control by the team of Respondent no.1. Thereafter, the panchanama records in detail as to the manner in which the house was searched and records the details of the contraband recovered from the said house. It is also recorded that the Applicant was taken to the Police Station at about 11:30 p.m. and that the panchanama proceedings were completed at 1:20 a.m. The contents of the panchanama clearly indicate that when the team of Respondent no.1 reached the house of the Applicant at 6:25 p.m. on 07.03.2021, the members of the team took the Applicant in their control. Throughout the proceedings of the panchanama, the Applicant was not free to move out and he was kept in control by the team of Respondent no.1. He was physically taken to the Police Station where the panchanama proceedings were completed at 1:20 a.m. The Applicant continued in the custody of the team of Respondent no.1 and eventually at 5:30 p.m. on 08.03.2021, the Applicant was shown to be arrested. 10. The contents of the panchanama clearly show that there was total restraint on the movement of the Applicant from 6:25 p.m. on 07.03.2021 itself and, therefore, for all purposes, the Applicant stood detained and arrested at that point in time. In the case of Suaibo Ibow Casamma (supra), in a similar situation, this Court held that the Applicant therein was entitled to grant of bail due to violation of his rights under Articles 21 and 22 of the Constitution. In the case of Suaibo Ibow Casamma (supra), in a similar situation, this Court held that the Applicant therein was entitled to grant of bail due to violation of his rights under Articles 21 and 22 of the Constitution. It was found that the moment the Applicant/Accused therein was put under complete control of the Officers with absolute restrictions on his movement, his arrest was complete in law. The relevant portions of the said judgment in the case of Suaibo Ibow Casamma (supra), read as follows: "19. In view of the above, it is clear that there is an unexplained breach of the mandate of Article 21 sub-clause (2) of Article 22 of the Constitution. Arrest of the petitioner was complete by about 5.30 a.m. on 2nd November, 1991. Restraint on the petitioner was total from that time. Restrictions on his movements were absolute and from 5.30 a.m. on 2nd November, 1991 he was entirely in custody of the customs officer. If that be so, there is a clear breach of the provisions of Clause (2) of Article 22 which requires that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of his arrest excluding the time necessary for the journey from the place of his arrest to the Court of Magistrate and that in no case such a person shall be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. There is no explanation whatever as to why the petitioner was not produced before the Magistrate in the city of Bombay before 5.30 a.m. on 3rd November, 1991. Admittedly, he was produced before the Magistrate much later i.e. to say on 4th November, 1991 at 3 a.m. as contended by petitioner at 11 a.m. on 4th November, 1991 as contended by the respondents. In my view, the detention of the petitioner beyond the permissible limit of 24 hours is in clear violation of the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India. 22. Looking to the above facts and circumstances, Shri Patwardhan has rightly impressed upon me the necessary of making a few general observations in the larger interests of upholding the rule of law. 22. Looking to the above facts and circumstances, Shri Patwardhan has rightly impressed upon me the necessary of making a few general observations in the larger interests of upholding the rule of law. Having regard to the settled position in law and having regard to the scheme of the provisions of Section 104 of the Customs Act and Section 42 of the N.D.P.S. Act it is high time that the investigating officers realise that the moment the accused was apprehended and put under complete control of the investigating officer with absolute restrictions on his movements, his arrest would be complete in law. Merely saying in the remand application that the arrest was recorded later, may be a day or two later, is unlikely to convince any Court of law and reflects very poorly on the investigating agency. Recording of the seizure panchanama and statements which are generally the two immediate steps taken could not have taken more than say 12 hours. If that be so, nothing prevented the investigation agency to produce the accused before the Magistrate within the stipulated period of 24 hours. This is not only the mandate of Section 57 and Section 167 of the Code of Criminal Procedure but this is the mandate of Articles 21 and 22 of the Constitution of India. It is unfortunate that the Customs Officials and officials of the Narcotics Cell are indifferent to these elementary but salutary requirements regarding detention beyond 24 hours not being permissible unless the accused was produced before a Magistrate. I have my own doubts as to what would have been the fate of this application in the absence of the first contention being upheld. Many a case under the N.D.P.S. Act which would otherwise [end] in rejection of the application for bail by virtue of the provisions of Section 37 of the N.D.P.S. Act, would have to end in grant of bail, if there is a total violation of the mandate contained in Article 21 and 22 of the Constitution. It is, therefore, necessary for the investigating agency, be it the provisions of Articles 21 and 22 of the Constitution and ensure that utmost care is taken to comply with the same. It is, therefore, necessary for the investigating agency, be it the provisions of Articles 21 and 22 of the Constitution and ensure that utmost care is taken to comply with the same. On Shri Patwardhan's suggestion I direct that a copy of this judgment may, therefore, be sent to the (i) Collector of Customs, Airport, Bombay; (ii) Collector of Customs (Preventive), Bombay; (iii) Joint Secretary, Ministry of Law, Government of India, Shastri Bhavan, Delhi; and (iv) Joint Secretary, Ministry of Law and Justice, 2nd floor, Aykar Bhavan Annex, M. K. Marg, Bombay-400 020. A copy may also be sent to the Director General of Police, Maharashtra State, Bombay and the Chief Secretary, Government of Maharashtra, Mantralaya, Bombay." 11. At this stage, it becomes necessary to examine as to whether the learned Additional Public Prosecutor is justified in contending that the judgment in the case of Pragyna Singh Thakur (supra), can be relied upon and since the Applicant failed to challenge the order passed by the Special Court sending him to judicial custody, he could not later claim that he was entitled to bail due to violation under Article 22(2) of the Constitution. Specific reliance is placed on paragraph 63 and 67 of the said judgment, which read as follows: "63. The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order. 67. At the time when the appellant moved for bail, she was in judicial custody pursuant to orders of remand passed by the learned CJM/Special Judge. The appellant did not challenge the orders of remand dated 24-10-2008, 3-11-2008, 17-11-2008 and subsequent orders. Article 22(2) does not operate against the judicial order. 67. At the time when the appellant moved for bail, she was in judicial custody pursuant to orders of remand passed by the learned CJM/Special Judge. The appellant did not challenge the orders of remand dated 24-10-2008, 3-11-2008, 17-11-2008 and subsequent orders. In the absence of challenge to these orders of remand passed by the competent court, the appellant cannot be set at liberty on the alleged plea that there was violation of Article 22(2) by the police." 12. The said observations were made by the Honble Supreme Court in the case of Pragyna Singh Thakur (supra) in the backdrop of a contention raised on behalf of the Appellant therein that she was entitled to default bail under Section 167(2) of the Cr.P.C. It is in the context of such an issue pertaining to the right of the Accused to default bail under Section 167(2) of Cr.P.C. that in the subsequent judgments in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav (supra) and M. Ravindran (supra), it was held that the view taken in the aforesaid earlier judgment in the case of Pragyna Singh Thakur (supra) was per incuriam. It needs to be examined whether the learned Additional Public Prosecutor is justified in contending that since the subsequent judgments concerned only right of default bail, they would not accrue to the benefit of the Applicant herein. 13. A perusal of the said subsequent judgments would show that in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav (supra), the Honble Supreme Court has held as follows: "45. The opinion expressed in paragraph 54 and 58 in Pragyna Singh Thakur (supra) which we have underlined, as it seems to us, runs counter to the principles stated in Uday Mohanlal Acharya (supra) which has been followed in Hassan Ali Khan and another (supra) and Sayed Mohd. Ahmad Kazmi. The decision in Sayed Mohd. Ahmad Kazmis case has been rendered by a three-Judge Bench. Ahmad Kazmi. The decision in Sayed Mohd. Ahmad Kazmis case has been rendered by a three-Judge Bench. We may hasten to state, though in Pragyna Singh Thakurs case the learned Judges have referred to Uday Mohanlal Acharyas case but as stated the principle that even if an application for bail is filed on the ground that the charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed the said right to be enlarged on bail is lost. This opinion is contrary to the earlier larger Bench decisions and also runs counter to the subsequent three-Judge Bench decision in Mustaq Ahmed Mohammed Isaks case. We are disposed to think so, as the two-Judge Bench has used the words "before consideration of the same and before being released on bail", the said principle specifically strikes a discordant note with the proposition stated in the decisions rendered by the larger Benches. 46. At this juncture, it will be appropriate to refer to the dissenting opinion by B.N. Agarwal, J. in Uday Mohanlal Acharyas case. The learned Judge dissented with the majority as far as interpretation of the expression "if not already availed of" by stating so:- (SCC p.481, paras 29-30) "29. My learned brother has referred to the expression "if not already availed of" referred to in the judgment in Sanjay Dutt case for arriving at Conclusion 6. According to me, the expression "availed of" does not mean mere filing of application for bail expressing therein willingness of the accused to furnish the bail bond. What will happen if on the 61st day an application for bail is filed for being released on bail on the ground of default by not filing the challan by the 60th day and on the 61st day the challan is also filed by the time the Magistrate is called upon to apply his mind to the challan as well as the petition for grant of bail? In view of the several decisions referred to above and the requirements prescribed by clause (a)(ii) of the proviso read with Explanation I to Section 167(2) of the Code, as no bail bond has been furnished, such an application for bail has to be dismissed because the stage of proviso to Section 167(2) is over, as such right is extinguished the moment the challan is filed. 30. 30. In this background, the expression "availed of" does not mean mere filing of the application for bail expressing thereunder willingness to furnish bail bond, but the stage for actual furnishing of bail bond must reach. If the challan is filed before that, then there is no question of enforcing the right, howsoever valuable or indefeasible it may be, after filing of the challan because thereafter the right under default clause cannot be exercised." On a careful reading of the aforesaid two paragraphs, we think, the two-Judge Bench in Pragyna Singh Thakurs case has somewhat in a similar matter stated the same. As long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmis case. Keeping in view the principle stated in Sayed Mohd. Ahmad Kazmis case which has based on three-Judge Bench decision in Uday Mohanlal Acharyss case, we are obliged to conclude and hold the principle laid down in Paragraph 54 and 58 of Pragyna Singh Thakurs case (which has been emphasised by us: see paras 42 and 43 above) does not state the correct principle of law. It can clearly be stated that in view of the subsequent decision of a larger Bench that cannot be treated to be a good law. Our view finds support from the decision in Union of India v. Arviva Industries India Ltd25. 47. Coming to the facts of the instant case, we find that prior to the date of expiry of 90 days which is the initial period for filing the charge-sheet, the prosecution neither had filed the charge-sheet nor had it filed an application for extension. Had an application for extension been filed, then the matter would have been totally different. After the accused respondent filed the application, the prosecution submitted an application seeking extension of time for filing of the charge-sheet. Mr. P.K. Dey, learned counsel for the appellant would submit that the same is permissible in view of the decision in Bipin Shantilal Panchal (supra) but on a studied scrutiny of the same we find the said decision only dealt with whether extension could be sought from time to time till the completion of period as provided in the Statute i.e., 180 days. It did not address the issue what could be the effect of not filing an application for extension prior to expiry of the period because in the factual matrix it was not necessary to do so. In the instant case, the day the accused filed the application for benefit of the default provision as engrafted under proviso to sub-Section (2) of Section 167 CrPC the Court required the accused to file a rejoinder affidavit by the time the initial period provided under the statute had expired. There was no question of any contest as if the application for extension had been filed prior to the expiry of time. The adjournment by the learned Magistrate was misconceived. He was obliged on that day to deal with the application filed by the accused as required under Section 167(2) CrPC. We have no hesitation in saying that such procrastination frustrates the legislative mandate. A Court cannot act to extinguish the right of an accused if the law so confers on him. Law has to prevail. The prosecution cannot avail such subterfuges to frustrate or destroy the legal right of the accused. Such an act is not permissible. If we permit ourselves to say so, the prosecution exhibited sheer negligence in not filing the application within the time which it was entitled to do so in law but made all adroit attempts to redeem the cause by its conduct." 14. In the case of M. Ravindran (supra), a three Judge Bench of the Honble Supreme Court, in the context of the earlier judgment in the case of Pragyna Singh Thakur (supra) held as follows: "22.2. It is pertinent to note that the two-Judge Bench in Nirala Yadav has already illuminated that the principles stated by the earlier co-ordinate Bench in Pragyna Singh Thakur, particularly in paragraphs 54 and 58 of the decision, do not state the correct position of law. Having studied both opinions, we are constrained to conclude and hold that the position as stated in Nirala Yadav is correct. We find that the opinion expressed in Pragyna Singh Thakur that the right to bail can be considered only on merits once the chargesheet is filed, is based on an erroneous interpretation of the conclusions of the Constitution Bench in Sanjay Dutt. We find that the opinion expressed in Pragyna Singh Thakur that the right to bail can be considered only on merits once the chargesheet is filed, is based on an erroneous interpretation of the conclusions of the Constitution Bench in Sanjay Dutt. As mentioned supra, the expression "if not already availed of" used in the Constitution Bench decision has been misinterpreted by the Courts, including the two-Judge Bench in Pragyna Singh Thakur, to mean that the accused can only avail of the right to default bail if he is actually released prior to the filing of the chargesheet. However, this Court in Uday Mohanlal Acharya (supra) has correctly understood and analysed the principles stated in the case of Sanjay Dutt before coming to its conclusion as stated above. 22.3. We are of the firm opinion that the view taken in Uday Mohanlal Acharya is a binding precedent. It has been followed by a subsequent three-Judge Bench in Sayed Mohd. Ahmad Kazmi (supra). Hence, the opinion rendered by the two-Judge Bench in paragraphs 54 and 58 of Pragyna Singh Thakur, to the effect that "even if an application for bail is filed on the ground that chargesheet was not filed within 90 days, but before consideration of the same and before being released on bail, the said right to be released on bail would be lost" or "can only be on merits", must be held per incuriam." 15. The above quoted portions of the said latter judgments of the Honble Supreme Court show that even in the context of the right to default bail, it has been held that once the accused files an application for grant of default bail, such a prayer is to be considered by the concerned Court even if subsequently an application is filed on behalf of the prosecution for extension of time to file chargesheet. It has been specifically held that even if the Magistrate adjourns the proceedings and procrastinates, it would not frustrate the legislative mandate to which the accused would be entitled. This clearly indicates that if the accused moves the Magistrate on the first opportunity to vindicate his rights, the same cannot be frustrated by holding that subsequently an order has been passed sending the Applicant/Accused to judicial custody. 16. This clearly indicates that if the accused moves the Magistrate on the first opportunity to vindicate his rights, the same cannot be frustrated by holding that subsequently an order has been passed sending the Applicant/Accused to judicial custody. 16. In the present case, a perusal of the documents shows that on 08.03.2021 itself, an application for bail was moved on behalf of the Applicant before the Magistrate. In the said application, a specific ground was taken regarding violation of the rights available to the Applicant under the Constitution. When this application was moved before the Magistrate on 08.03.2021, no orders were passed and when the Applicant was actually produced before the Magistrate on the morning on 09.03.2021, the Magistrate simply directed that the Applicant be produced before the Special Court concerning NDPS offences. At this stage, the Applicant was in the custody of the Respondent no.1 and he had specifically raised the aforesaid issues regarding his illegal detention. 17. Even before the Special Court, the Respondent no.1 only sought judicial custody of the Applicant and the Special Court directed the Applicant to be placed in judicial custody. 18. The application for bail filed on behalf of the Applicant on 08.03.2021, came up for consideration before the Magistrate on 10.03.2021 and, at this stage also, the aforesaid specific contention regarding illegal detention of the Applicant was raised, pointing out that he was produced before the Magistrate after expiry of 24 hours. Yet, the Magistrate rejected the contention by holding that the question of custody of the Applicant being illegal, no longer survived as he was already remanded to judicial custody on 09.03.2021 by the Special Court. The approach of the Magistrate in holding that the said question did not survive, is in the teeth of the law laid down in aforesaid judgment of the Honble Supreme Court in the case of Union of India, through Central Bureau of Investigation vs. Nirala Yadav (supra). No matter that the observations in the said judgement regarding the approach to be adopted by the Magistrates, have been made in the context of Section 167(2) of the Cr.P.C., it would equally apply to a situation like the one that has arisen in the present case. No matter that the observations in the said judgement regarding the approach to be adopted by the Magistrates, have been made in the context of Section 167(2) of the Cr.P.C., it would equally apply to a situation like the one that has arisen in the present case. The Applicant could not have been shut out from raising the question of violation of Articles 21 and 22(2) of the Constitution of India, although he had specifically raised such an issue in his bail application filed before the Magistrate on 08.03.2021 itself, merely on the ground that subsequently on 09.03.2021, the Special Court had passed an order remanding him to judicial custody. 19. The Court of Additional Sessions Judge completely failed to appreciate this aspect of the matter, while relying upon the judgment of the Honble Supreme Court in the case of Pragyna Singh Thakur (supra) and rejecting the said contention raised on behalf of the Applicant. 20. The learned Additional Public Prosecutor was also not justified in contending that the said ground could not be raised by the Applicant in the bail application and that if he wanted to raise a grievance concerning violation of Articles 21 and 22 of the Constitution of India, he should have moved a Writ Petition before this Court at the relevant time. The judgment in the case of Suaibo Ibow Casamma (supra) clearly covers the position of law in favour of the Applicant, because in almost identical circumstances, this Court not only entertained the bail application, but allowed the same on the specific ground of violation of the rights available to the Applicant under Articles 21 and 22 of the Constitution. Hence, it is found that the Applicant is entitled for grant of bail on the sole ground raised in the present application. 21. But, at the same time, this Court cannot be oblivious of the fact that the Applicant is alleged to be involved in serious offences under the NDPS Act. The reply filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and pending against him pertaining to the offences under the NDPS Act. Therefore, stringent conditions need to be imposed, even if bail is granted to the Applicant. 22. The reply filed on behalf of the State demonstrates that he has criminal antecedents and there are at least four cases registered and pending against him pertaining to the offences under the NDPS Act. Therefore, stringent conditions need to be imposed, even if bail is granted to the Applicant. 22. In this context, in a number of bail applications filed before this Court by foreign nationals, particularly pertaining to offences under the NDPS Act, submissions have been made on behalf of the prosecution that such accused persons do not have valid passports and visas. They deliberately carry no papers to ascertain their identities. Most of such accused persons are repeat offenders. They do not disclose their genuine and correct identities and when they are apprehended, they give fictitious names to the investigating authorities, thereby further complicating the cases. As a result, after they are granted bail, it is extremely difficult to ensure their presence to face trial. They also further indulge in criminal activities concerning offences under the NDPS Act. 23. It has been pointed out on behalf of the prosecution that in this backdrop, officials from the High Commission of Nigeria visited the State of Goa in February 2021 and after visiting the accused under trials in jail, they undertook biometric analysis and upon verification of actual identities of such accused persons, issued fresh passports to them. 24. In the present case, the Applicant has stated in the present bail application at paragraph 9 that he is a Nigerian and that he has lost his Nigerian passport. This itself shows that the respondent no.2 is justified in expressing the apprehension that the applicant is also adopting the said modus operandi of deliberately destroying documents of identity like passport and then committing crimes by suppressing and changing identities. Therefore, appropriate stringent conditions need to be imposed while allowing the present application. 25. In view of the above, the application is allowed in the following terms: (a) The Applicant shall be released on bail on furnishing PR bond of Rs. 1,00,000/- and a surety in the like amount. (b) The release of the Applicant shall be subject to production of a valid passport and visa. The learned Additional Public Prosecutor has brought to the notice of this Court that online applications can be made in this regard. 1,00,000/- and a surety in the like amount. (b) The release of the Applicant shall be subject to production of a valid passport and visa. The learned Additional Public Prosecutor has brought to the notice of this Court that online applications can be made in this regard. The Applicant will have to apply for the same from jail and in this context, the Respondent-authorities shall provide assistance to the Applicant. But it is made clear that without production of valid passport and visa, the Applicant shall not be released on bail. (c) Upon the Applicant producing such valid passport and visa, the same shall be deposited with the Investigating Officer. (d) The Applicant shall register himself on the basis of the valid passport and visa, with the Foreigners Regional Registration Office (FRRO) at Goa. (e) The Applicant shall report to the office of the Narcotics Control Bureau at Goa, on every Monday between 10.00 a.m. and 12.00 noon, during pendency of the trial. (f) The Applicant shall attend each and every date of proceedings before the Trial/Special Court. (g) The Applicant shall not leave the State of Goa during the pendency of the trial. (h) The Applicant shall not himself or through any other person, tamper with the evidence or influence witnesses. (i) The Applicant shall produce proof of his residence and address in the State of Goa within ten days of release and he shall also give the details of his contact numbers to the Investigating Officer. (j) The Applicant shall not indulge in any such activity for which he is being prosecuted in the present case and the other cases pending against him. 26. Needless to say, the violation of any of the aforesaid conditions would make the Applicant liable for cancellation of bail. The present bail application has been conditionally allowed only on the ground of violation of rights available to the Applicant under Articles 21 and 22 of the Constitution of India. Hence, the Trial Court/Special Court shall proceed in the matter on merits without being influenced by the fact that the Applicant has been released on bail. 27. Application stands disposed of.