Mere Foreign Nationality Of Accused Cannot Be Grounds To Deny Bail Under NDPS Act: HP High Court

The Himachal Pradesh High Court has held that the mere foreign nationality of an individual cannot be a ground to deny bail under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Justice Ranjan Sharma remarked that: “…this Court cannot make a distinction for granting or denying bail, merely on the ground of being a citizen or non-citizen coupled with the fact that the authenticity of the Passport submitted to the police is a matter of trial under the Foreigners Act.”

In February, 2024, a case was registered against the petitioner, under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of manufactured drugs and abetment or criminal conspiracy) and Section 14 of the Foreigners Act, 1946, for unauthorized stay in India.

The case originated after two people were caught with heroin, and the petitioner was also named for being in possession. The petitioner contended that he was not told the grounds of arrest, which violated Article 22 of the Constitution of India and that he was not produced before a Magistrate within 24 hours.

He further contended that there was no contraband recovered from him, and his arrest was merely based on the confessional-disclosure statement of co-accused, which is contrary to Section 67 of the NDPS Act.

The High Court reiterated that in Tofan Singh v. State of Tamil Nadu (2021), the Supreme court held that “The incarceration of the bail petitioner, on the basis of the confessional statement of other co-accused is violative of Section 67 of NDPS Act”

The Court observed that the petitioner has already been in custody without trial for about 1 year and 6 months, which violated his right to personal liberty under Article 21 of the Constitution.

It also noted that there was no recovery of contraband made from the petitioner and presumption of guilt under Section 21 and 29 of the NDPS Act, would go against the settled principle that an accused is presumed innocent until proven guilty.

Considering that the other two co-accused, from whom contraband was recovered, had already been granted bail, the court remarked that the petitioner could not be denied bail merely for being a foreign national. Allegations regarding a fake passport and expired visa were held to matters under the Foreigners Act, and the petitioner's bail could not be curtailed solely on that basis.

Taking note of the status report filed by the state the court noted that “Status Reports filed by State Authorities have neither pointed out cogent and convincing material revealing adversarial circumstance.”

Accordingly, the court directed the petitioner to be released on bail.

Case Name: Tidj Mamane @ Tidy Mamane V/s State of H.P. & Anr.

Case No.: Cr. MP(M) No. 254 of 2025

Date of Decision: 05.09.2025

For the Petitioner: Mr. Yuyutsu Singh Thakur, and Mr. Munish Kumar,Advocates.

For the Respondent: Mr. Pranay Pratap Singh, Additional Advocate General.

Click Here To Read/Download Order