Bombay High Court: In the present case, petitioner-a Chinese woman who arrived in India by Air China Airlines Flight on 12-12-2019 from Beijing, was to land at Delhi International Airport, however, it was diverted to Chatrapati Shivaji Maharaj Terminus Airport, Mumbai due to bad weather. Later, she was arrested for procurement and smuggling of gold into India but was acquitted for the same. Despite petitioner’s acquittal Respondent 2, Union of India through the Assistant Commissioner of Customs, Prosecution Cell, CSMI Airport, Mumbai was creating hurdle in getting Exit Permit from Respondent 1.
Prithviraj K. Chavan, J., opined that conduct of Respondent 2 was not only wrongful and vindictive, but it amounted to gross abuse of its powers in restricting petitioner to leave for her country without any justification. The Court opined that the way a foreign national was treated by Respondent 2 would reflect in the bilateral relations between two countries, and this was nothing but victimizing petitioner without reason. Thus, Respondent 2 was directed to pay an amount of Rs 10,00,000 to petitioner and the amount of compensation had to be recovered from the salary of the official responsible for filing appeal before the wrong forum and not challenging the same before this Court till date.
Background
In the present case, petitioner-a Chinese woman who arrived in India by Air China Airlines Flight on 12-12-2019 from Beijing, was to be landed at Delhi International Airport, however, it was diverted to Chatrapati Shivaji Maharaj Terminus Airport, Mumbai due to bad weather. Petitioner was carrying one black trolley bag and blue coloured backpack and she produced a counterfoil of boarding ticket showing journey from Beijing to New Delhi. Upon inquiry, she informed Customs Officials that her flight was diverted to Mumbai due to bad weather in New Delhi and that the diverted flight was to leave back to Delhi after a long gap and, therefore, she decided to clear immigration and customs in Mumbai and head to Delhi by another domestic flight to save time.
Air Intelligence Unit, Customs, CSMI Airport, Mumbai inquired with petitioner whether she was carrying any prohibited goods, contraband, or gold in the baggage or on her. Upon her search and screening of her baggage, it revealed ten yellow metal bars of foreign marking weighing 1 kg each purported to be gold in her baggage, and it was seized by following due procedure. Those ten metal bars were found to be 24 carat gold weighing about 10,000 grams valued at Rs 3,38,83,200.
After completing the formalities and recording her statement under Section 108 of the Customs Act, 1962 (‘the Customs Act’), she was booked under Sections 135(1)(a) and 135(1)(b), punishable under Section 135(1)(i) of the Customs Act for procurement and smuggling of gold into India. Later, she was arrested and remanded to judicial custody. The Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai (‘the Additional Chief Metropolitan Magistrate’) by a judgment and order dated 10-10-2023 acquitted petitioner on merits for the offence with which she was charged. Aggrieved with the judgment of acquittal, Respondent 2 preferred an appeal before the Additional Sessions Judge, Mumbai, which was dismissed by a judgment and order dated 02-02-2024.
The petitioner, thereafter, moved a Miscellaneous Application in the Court of Additional Chief Metropolitan Magistrate seeking direction to Respondent 1 to issue Exit Permit to facilitate her to travel back to China. Thus, the Additional Chief Metropolitan Magistrate in terms of order dated 07-03-2024 directed the FRRO officials Mumbai to issue Exit Permit to petitioner to travel back to her country in accordance with the provisions of law.
Counsel for petitioner informed the Court that despite acquittal of the petitioner by the Court of Additional Chief Metropolitan Magistrate of all the charges and an appeal being dismissed by the lower Appellate Court confirming the judgment and order of acquittal on 02-02-2024, Respondent 2 by grossly abusing its powers and with an ulterior motive was creating hurdle in getting Exit Permit from Respondent 1 without justification.
Analysis, Law, and Decision
The Court noted that the Additional Commissioner, Customs, Mumbai vide communication dated 22-03-2024 informed petitioner that NOC could not be issued as the Customs Department was in the process of challenging the order of the Sessions Court before the High Court, but till date, the Customs Department had not challenged the order.
The Court opined that this could not be a hurdle in issuing Exit Permit to petitioner as neither was any case pending against her nor had she breached any directions issued by the Courts below. The Customs Department should have shown some humanitarian approach and sensitivity since every foreign national had the fundamental right of liberty as per Article 21 of the Constitution.
The Court opined that Respondent 2’s conduct was not only wrongful and vindictive, but it amounted to gross abuse of its powers in restricting petitioner to leave for her country without any justification. The Court agreed with counsel for petitioner’s submissions that Respondent 2’s conduct was reprehensible and unbecoming of a responsible officer/s of the Customs Department.
The Court opined that petitioner, who was a lady, having left her country way back in 2019 with two children behind, should not have been troubled and harassed by the Customs Department. The way a foreign national was treated by Respondent 2 would reflect in the bilateral relations between two countries, and this was nothing but victimizing petitioner without reason. The Court stated that the present case was a fit case in which this Court would invoke its powers under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’) for doing complete justice.
The Court observed that Article 21 of the Constitution provided that no person shall be deprived of his life or personal liberty except according to the procedure established by law and the word “person” in Article 21 was wide enough to cover not only citizens of this country but also foreigners who come to this country. The State had an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty was not deprived except in accordance with the procedure established by law.
The Court opined that Respondent 2 acted in a most brazen and perfunctory manner by preferring an appeal before the Additional Sessions Judge despite knowing the fact that in view of the Circular No.27/2015-Cus dated 23-10-2015 issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise and Customs, New Delhi, and Section 378(4) of the CrPC, appeal would lie before this Court, especially, in light of the fact that several appeals in identical matters have been preferred by Respondent 2 before this Court.
The Court relied on Anwar v. State of J&K, (1971) 3 SCC 104, it was held that “the rights under Articles 20, 21 and 22 are available not only to “citizens” but also to persons which would include “non-citizens”. Article 20 guarantees right to protection in respect of conviction for offences. Article 21 guarantees right to life and personal liberty while Article 22 guarantees right to protection against arbitrary arrest and detention. These are wholly in consonance with Article 3, Article 7, and Article 9 of the Universal Declaration of Human Rights, 1948”.
The Court opined that petitioner, who was a non-citizen, apart from the right to get Exit Permit within two weeks from the date of passing of this order, she needs to be adequately compensated for the mental agony, trauma, and sufferings undergone by her due to the conduct of Respondent 2. Thus, Respondent 2 shall pay an amount of Rs 10,00,000 to petitioner and the amount of compensation shall be recovered from the salary of the official responsible for filing appeal before the wrong forum and not challenging the same before this Court till date.
[Cong Ling v. FRRO Bureau of Immigration, 2024 SCC OnLine Bom 2147, decided on 11-07-2024]
Advocates who appeared in this case :
For the Petitioner: Anand Sachwani a/w R.R. Shah
For the Respondents: D.P. Singh; Special PP Anuradha Mane; APP P.P. Bhosale; Superintendent of Customs Vaman Pinge
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