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2010(1) Crimes 848 (Bom.)
BOMBAY HIGH COURT
P.B. Majumdar and R.G. Ketkar, JJ.
Zainab Bte Yousuf & Anr. —Petitioners
versus
State of Maharashtra —Respondent
Crl. W. P. No. 1493 of 2009
Decided on 1.2.2010
For the Petitioners:Ayaz Khan with Ms. Nilofer Saiyed, Advocates.
For the Respondent No. R1: A.S. Pai, Additional Public Prosecutor, D.J. Khambata, Additional Solicitor General,
For the Respondent No. 2:D.N. Salvi, Advocates.
IMPORTANT POINT
A foreign national is not 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 as there is no such policy or law enacted by the Government. It is for the Central Government. to consider as to whether any such Policy is required to be framed or not in the eventuality of the cases like the present one.
Headnote:Narcotic Drugs and Psychotropic Substances Act,1985—Constitution of India—Articles 21 & 226—Foreign nationals involved in criminal offences facing prosecution—Appeal against acquittal pending in Supreme Court—Prayer for direction to State to provide them lodging/boarding and medical expenses for their stay in India—Petitioner, Singapore national and petitioner 2, a citizen of Japan—They are wife and husband, arrested on 27.11.2000 by the Officers of Customs for alleged violation of provisions of NDPS Act—Petitioners were convicted by the trial Court and sentenced to suffer rigorous imprisonment for ten years—In appeal against their conviction, petitioners were acquitted, by the High Court—Petitioners approached the Foreigners Regional Registration Office for issuance of exist permit as they wanted to back to their home country—Exit permits not granted as appeal against their acquittal filed by Union of India—Supreme Court, condoning delay in filing appeal, directed the until further orders, petitioners were not to leave the country—Writ petition filed before the High Court for direction FRRO to deposit appropriate amount for lodging/boarding and medical expenses for the petitioners stay in India—Whether a foreign national is required to be maintained by the State in case such person is prohibited from leaving the country on ground of pendency of appeal against their acquittal pending in a higher Court?—(No)
Held: 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 no 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. (Para 15)
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.
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 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. (Paras 15 & 16)
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.
During the course of hearing, it is pointed out that the period of 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 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. (Paras 17 to 19)
Result: Petition rejected.
JUDGMENT
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 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 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.
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
