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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL WRIT PETITION NO. 1493 OF 2009
1. Mrs. Zainab Bte Yousuf )
Age 47 years, Singaporean National )
R/o BLK 426, Bukit Batok West Ave 2 )
#04-125, Singapore-650 426 )
2. Tetsyo Hiryama, Japanese National )
Age 62 years, R/o BLK 426 Bokit Batok West Ave 2 )
#04-125, Singapore-650 426 )..Petitioners
versus
1. The State of Maharashtra
(Foreigners Regional Registration Office)
)
)
2. Union of India )
Custom, AIU )..Respondents
Mr. Ayaz Khan with Ms. Nilofer Saiyed for the petitioners.
Mrs. A.S. Pai, Additional Public Prosecutor, for respondent No.1-State.
Mr. D.J. Khambata, Additional Solicitor General, with Mr. D.N.Salvi for
respondent No.2.
CORAM: P.B.MAJMUDAR &
R.G.KETKAR, JJ.
DATED: 1
February, 2010
st
.
ORAL JUDGMENT : (Per P.B.Majmudar, J.)
Whether a foreign national is required to be maintained by the
State in case such person is prohibited from leaving the country on the ground
that an appeal against acquittal order passed in his/her favour by the Court is
stayed by the Higher Court is the principal question which is raised by the
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petitioners in the present criminal writ petition.
2. Petitioner No.1 is a Singapore national and petitioner No.2 is a
citizen of Japan. They are wife and husband respectively. The petitioners
were arrested on 27th November, 2000 by the Officers of Customs, Air
Intelligence Unit, Mumbai, at the International Airport, Mumbai, for alleged
violation of the provisions of the N.D.P.S. Act. A complaint vide NDPS Special
Case No. 21 of 2001 came to be filed against the petitioners. By an order
dated 19th December, 2006, the petitioners were convicted by the trial Court
and they were sentenced to suffer rigorous imprisonment for ten years on
each count and to pay a fine of Rs. One lakh on each count. The aforesaid
conviction was challenged by petitioner No.1 by way of criminal appeal being
Criminal Appeal No. 162 of 2007. Petitioner No.2 also preferred an appeal
being Criminal Appeal No. 325 of 2007 against the order of conviction. The
learned single Judge of this Court, by an order dated 30th January, 2009,
allowed the respective appeals preferred by the petitioners and the petitioners
were acquitted in connection with the aforesaid Special Case No. 21 of 2001.
3. The petitioners thereafter approached the Foreigners Regional
Registration Office(hereinafter referred to as “FRRO”), Mumbai, for issuance
of exit permit as they wanted to go back to their home country. Since the exit
permit was not granted to the petitioners, the petitioners at that stage have
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filed the instant petition with a prayer that the FRRO be directed to grant exit
permit to the petitioners immediately and FRRO be further ordered to legalize
the stay of the petitioners in India by issuing necessary Visa. It is also prayed
that the FRRO be directed to deposit appropriate amount before this Court for
lodging/boarding and medical expenses for the petitioners’ stay in Mumbai.
4. At the relevant time when the petition was filed, the order of the
learned single Judge was not challenged before the Hon’ble Supreme Court
but it seems that after some delay an appeal was filed by the Union of India.
Initially, since there was delay in preferring the appeal in the Supreme Court,
the Supreme Court on 13th August, 2009, condoned the said delay and issued
notice. At that time, the counsel appearing for the respondents (petitioners
herein) accepted the notice. The Supreme Court also directed that until
further orders, the respondent-accused persons (petitioners herein) were
directed not to leave the country. Subsequently on 23rd October, 2009, the
Supreme Court granted the leave and the hearing of the appeal was ordered
to be expedited. The aforesaid orders were passed subsequent to the filing of
this petition. In view of the same, prayer clause regarding direction to the
FRRO to grant an exit permit to the petitioners is not sustainable as the
Supreme Court has passed the order by which the petitioners were directed
not to leave the country and there is no question of now granting any exit
permit to the petitioners by the concerned department.
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5. Mr. Ayaz Khan, the learned counsel appearing for the petitioners,
however, submitted that since the petitioners have no source of income to
sustain themselves, this Court may issue suitable writ, order or direction
directing the concerned department i.e. FRRO to deposit particular amount
for the boarding/lodging of the petitioners as well as to provide medical
expenses to the petitioners as, according to the leaned counsel for the
petitioners, petitioner No.1 is suffering from Cancer and petitioner No.2 is of
advanced age and, therefore, appropriate medical facilities be provided to
them.
6. Learned counsel for the petitioners further submitted that the
petitioners are not in a position to leave the country and they have no
avocation and no income worth the name nor anyone is here to look after
them. Since the petitioners are residing at the mercy of some of their friends,
the State agency be directed to provide them maintenance and/or provide
employment to them. Learned counsel for the petitioners further submitted
that petitioner No.1 is not in a position to take any employment and the
State should make an attempt to provide employment to petitioner No.2. It is
submitted that petitioner No.2 is aged about 62 and that with great difficulty
he is able to understand English as he is conversant with the Japanese
language. It is submitted that in view of the same, the State authorities may
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be directed to provide appropriate maintenance to the petitioners as long as
they are required to stay in India.
7. Learned counsel for the petitioners further submitted that under
Article 21 of the Constitution of India, the petitioners are entitled to be
maintained by the State and accordingly the State may be directed to provide
food and shelter to them as they are required to stay in India not on their own
volition but because of the order of the Supreme Court of India. Learned
counsel for the petitioners submitted that the department had preferred
appeal after considerable time and till the interim order was passed by the
Supreme Court, the concerned department was required to issue exit permit
but they delayed the said proceedings and, therefore, they may be directed to
pay adequate compensation to the petitioners.
8. Mr. Khambata, learned Additional Solicitor General, appearing for
respondent No.1, submitted that since the appeal is already admitted by the
Supreme Court and in view of the order of the Supreme Court, the petitioners
are prevented from leaving the country, the petitioners cannot approach this
Court with a prayer that the State should either provide employment to the
petitioners or provide maintenance to them. Mr. Khambata further submitted
that since the petitioners are directed by the Supreme Court not to leave the
country, the appropriate remedy for the petitioners is to approach the Hon’ble
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Supreme Court of India in connection with the prayers made in the present
petition. Mr. Khambata further submitted that even otherwise at the time
when this petition was filed, the Supreme Court had not passed any order but
since the Supreme Court has admitted the appeal, this petition has become
infructuous.
9. Ms. Pai, learned Additional Public Prosecutor, appearing for the
State of Maharashtra, submitted that at the time when FRRO received an
application from the petitioners for exit permit to leave the country after
acquittal, the department entered into correspondence with the Customs
Department, who are the prosecuting agency, and the prosecuting agency
informed the State that they are contemplating filing of appeal, the exit permit
was not granted. Subsequently the Supreme Court admitted the appeal and
directed that until further orders, the petitioners were directed not to leave the
country. Ms. Pai further submitted that considering the facts and
circumstances of the case, it cannot be said that the FRRO has acted in an
arbitrary manner in not granting exit permit, though it is true that at the time
when the exit permit was asked for, Supreme Court appeal was not pending
but since the prosecuting agency informed the FRRO that the appeal is under
contemplation that no immediate orders were passed by the FRRO for giving
exit permit to the petitioners. Ms. Pai further submitted that there are cases
when a foreign national leaves the country and subsequently the appeal
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against the foreign national is admitted but at that stage it is difficult to secure
his/her presence back in the country.
10. We have heard the learned counsel for the parties at some length
and have also examined the points raised before us in this petition.
11. It is required to be noted that at the time when this petition was
filed, the prosecuting agency had not filed any appeal before the Supreme
Court as the Appeal was filed after the period of limitation and in the
meanwhile the petitioners had approached the concerned department to
grant them exit permit for leaving the country in view of the acquittal order
passed by the learned single Judge of this Court. It is true that no orders were
passed by FRRO immediately thereafter regarding this prayer of the
petitioners. In our view, no fault can be found with the said department as
they had already entered into correspondence with the prosecuting agency
and they were told by the prosecuting agency that they are contemplating
filing of appeal and, therefore, they did not take further steps in this behalf.
12. It is further required to be noted that in the meanwhile the
Hon’ble Supreme Court has already admitted the appeal and has passed an
interim order by which the petitioners were restrained from leaving the
country. Under these circumstances, it cannot be said that the FRRO has
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committed any error in not immediately giving exit permit to the petitioners as
the said department was informed by the prosecuting agency that they are
contemplating filing of appeal.
13. So far as the submission of the learned counsel for the petitioners
regarding providing maintenance and shelter is concerned, we agree with the
submission of the learned Additional Solicitor General that the matter is
pending before the Supreme Court and it would be just and proper that the
petitioners may approach the Hon’ble Supreme Court for appropriate relief.
The learned counsel for the petitioners, however, vehemently submitted that
the petitioners have approached this Court under Article 226 of the
Constitution of India with a prayer that this Court should adjudicate the
grievance of the petitioners on merits as the petitioners are required to be
maintained by the State when they are unable to leave the country. According
to the learned counsel for the petitioners, this petition is maintainable and
appropriate writ be issued in connection with providing maintenance to the
petitioners during their stay in India.
14. So far as the submission of the learned counsel for the petitioners
regarding violation of Article 21 of the Constitution by the State is concerned,
it is to be mentioned that the petitioners can never be said to be illegally
detained in this country as the petitioners have been restrained from leaving
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the country by virtue of the order passed by the Supreme Court in an appeal
filed by the Union of India against an order of acquittal passed by this Court.
It cannot be said that the petitioners have been deprived of their life or
personal liberty as by virtue of the order of the Supreme Court, they are
restrained from leaving the country. In a given case, a person can be deprived
of his liberty in accordance with the procedure established by law.
15. Considering the facts and circumstances of the case, it cannot be
said that the State has violated the provisions of Article 21 of the Constitution
of India as the petitioners are now required to stay in India by virtue of the
order of the Supreme Court of India. It is required to be noted that so far as
providing maintenance, medical expenditure, etc. to the petitioners are
concerned, it is no doubt true that the provisions under Article 21 of the
Constitution is available even to a non-citizen also. In this behalf, it may be
mentioned that even for a citizen of this country, who is unable to maintain
himself, there is no policy or law enacted by the Government to provide
maintenance or shelter to even such citizen. The learned Additional Solicitor
General, in our view, has rightly submitted that the petitioners cannot be
placed on a higher footing than the citizens of this country but at the most the
petitioners, in a given case, may even apply for work permit, though it is
pointed out to the Court that when a foreigner enters into the country with
tourist visa, he is not permitted to work. The learned Additional Solicitor
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General has relied upon the decision of the Supreme Court of India in the case
of Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs and
Pharmaceuticals Ltd. 1 wherein the Supreme Court has observed in para 52
as under:
” 52. No doubt, Article 41 provides for the right to work, but
this has been deliberately kept by the Founding Fathers of
our Constitution in the directive principles and hence made
unenforceable in view of Article 37, because the Founding
Fathers in their wisdom realised that while it was their wish
that everyone should be given employment, but the groundrealities of our country cannot be overlooked. In our
opinion, Article 21 of the Constitution cannot be stretched sofar as to mean that everyone must be given a job. The
number of available jobs are limited, and hence courts must
take a realistic view of the matter and must exercise self-
restraint.”
In our view, since the petitioners have come to India on a tourist visa and
according to law they are not permitted to work, this Court cannot give any
direction under Article 226 of the Constitution of India to the State
Government to provide work permit to the petitioners.
16. So far as providing medical treatment to the petitioners are
concerned, medical aid is given at the Government Hospitals either free of cost
or in a given case on nominal charges, which is available to the citizens of the
country. In our view, since the petitioners are not keeping good health, there
1 (2007) 1 SCC 408
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is no reason why free medical aid should not be given to the petitioners as
even under Article 21 of the Constitution of India, they are entitled to have
such benefit. The State Government may accordingly consider and try to
extend such benefits to the petitioners at the Government Hospital free of
charge as the said benefit is given in case of needy and poor people who are
unable to get medical treatment. Every citizen is accordingly entitled to free
medical help if he is unable to incur expenditure in connection with the
treatment. Considering the facts and circumstances of the case, the State
Government may consider the question about extending free medical aid to
the petitioners as they are not in a position to spend anything as they do not
have any other avocation or income to make payment for the same.
17. As stated above, this Court cannot give direction to the State to
provide work permit to the petitioners, though during the course of hearing it
was argued by the learned counsel for the petitioners that work permit
alternatively can be given to the petitioners so that they can their livelihood.
Since there is no provision, in our view, no direction can be given to the State
to provide maintenance to the petitioners. Since petitioner No.1 is suffering
from cancer and petitioner No.2 is of advanced age, if any medical assistance
is required, the State may provide the same free of charge, as a special case.
18. During the course of hearing, it is pointed out that the period of
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visa is expired since long i.e. at the time when the petitioners were in jail.
Since the petitioners are already out of jail in view of the acquittal order of the
learned single Judge of this Court, unless the visa is extended, it can be said
that they are unauthorisedly residing in India. Mr. Salvi, learned counsel
appearing for the Customs submits that unless Visa is extended, further stay of
the petitioners can be said to be unauthorised, even if they are prevented by
the order of the Supreme Court of India to leave the country. In view of the
said submission of the learned counsel for the Customs, the petitioners may
apply to the FRRO for extension of their visa till the appeal filed by the Union
of India is decided by the Supreme Court. If any such application is made, it
is for the FRRO to take a decision in accordance with law so that it cannot be
said that the petitioners are residing and moving freely even though their visa
had already expired. It is for the FRRO to take appropriate decision in case
any application is received from the petitioners in this behalf.
19. It is pointed out by the learned counsel for the petitioners that
various cases of foreign nationals are coming before the Courts where foreign
nationals are involved in criminal offences and when an appeal against
acquittal of such foreign citizen is pending and when they are out of jail and
if they are unable to maintain themselves, the Central Government may frame
appropriate policy. In our view, it is for the Central Government to consider
as to whether any such policy is required to be framed or not and this Court
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cannot express any opinion on this aspect. It is left to the wisdom of the
Central Government as to whether any policy is required to be framed in the
eventuality of the cases like the present one.
20. We may also clarify that when the appeal is pending before the
Supreme Court and if the petitioners have any other grievance, they should
approach the Supreme Court in the pending matter for appropriate relief.
This Court has considered the submission of the learned counsel for the
petitioners that under Article 226 of the Constitution of India, this Court may
give necessary direction, if there is violation of human right or violation of
Article 21 of the Constitution of India. In view of the submission of the
learned counsel for the petitioners, the aforesaid observations have been made
in this order.
21. Subject to what is stated above, the petition is rejected.
(P.B.MAJMUDAR, J.)
(R.G.KETKAR,J.)
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