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IN THE HIGH COURT OF DELHI AT NEW DELHI
Anish Dayal, J.
Emechere Maduabuchkwu – Appellant
Versus
State NCT of Delhi & Anr. – Respondents
W.P.(Crl.) 550 of 2022 and W.P.(Crl.) 827 of 2022
Decided On : 26-05-2023
Bail - Foreign National - Foreigners Act, 1946, Delhi Excise Act, 2009 - Section 33/38/58 of the Delhi Excise Act, 2009, Section 14 of the Foreigners Act, 1946 - Section 3(2)(e) of the Foreigners Act, 1946 and para 11(2) of the Foreigners Order, 1948
Fact of the Case:
The petitioner, a Nigerian national, was arrested for violating the Delhi Excise Act and the Foreigners Act. He was granted bail but was directed to be transferred to a detention centre until his travel arrangements were made. The petitioner's visa extension applications were rejected, and he was restricted to the detention centre by the FRRO.
Finding of the Court:
The court found that the impugned order restricting the petitioner to the detention centre was unreasonable and in violation of principles of natural justice. The court emphasized that the petitioner, being an undertrial, should not be detained without due process of law. The court directed the FRRO to reconsider the petitioner's application for visa and to release him from the detention centre on bail conditions.
Issues: The issues included the legality of restricting a foreign national to a detention centre after being granted bail, the interpretation of Section 3(2)(e) of the Foreigners Act, and the denial of visa extension to the petitioner.
Ratio Decidendi: The court held that the petitioner, as an undertrial, should not be detained without due process of law. The court emphasized that the FRRO should consider alternative options under Section 3(2) of the Foreigners Act, such as imposing restrictions on movements or requiring the petitioner to reside in a particular place, instead of confining him to a detention centre.
Final Decision: The impugned order was set aside, and the petitioner was directed to be released from the detention centre on bail conditions. The court reiterated and endorsed the directions passed by the lower court, including the requirement for the petitioner to report to the local police station and surrender his passport.
JUDGMENT
1. These petitions have been filed by the petitioner who is a Nigerian national seeking setting aside order dated 14th July, 2021 passed by the Foreigners Regional Registration Officer (FRRO) (respondent herein) by which petitioner was restricted to move out of Sewa Sadan, Lampur, Narela, Delhi until his travel arrangements were made. The issue under consideration is essentially the grant of bail to a foreign national but with conditions of being sent to a detention centre, considering that the visa of stay in India of such a national had expired. The factual background relating to this matter is as under.
Factual background
2. The petitioner came to India in November, 2014 and got married to Ms. Rinkoo Tripathi in the month of December, 2015 and started residing with his wife in Delhi. Petitioner was running an African kitchen at H. No. 102 B, 50 Foota, Vijay Laxmi Park, Nilothi Extn., New Delhi-110041 to earn his livelihood. As per the case of the prosecution, a police team in April, 2021 while patrolling received secret information that the petitioner is running an African Kitchen in that area where some suspicious people come, drink liquor and create nuisance. After receiving this information, the police team went to the kitchen and noticed an African man coming outside from the kitchen, carrying a white katta (bag) in his hand, got on a scooty and started going on it, then as he reached near the police, they stopped the vehicle and restrained him. On checking the bag, 24 sealed beer bottles were found and when search was made at the kitchen, 42 more sealed beer bottles were found.
3. An FIR No. 249/2021 was registered on 06th April, 2021 under Sections 33/38/58 of the Delhi Excise Act, 2009 and Section 14 of the Foreigners Act, 1946 at PS Nihal Vihar. The petitioner was also arrested and moved an application under Section 437 Cr.P.C. seeking regular bail before the Court of Ld. MM, West District, Tis Hazari Courts. By order dated 24th April, 2021, the Ld. MM allowed the bail application of the petitioner, however, directed that the petitioner would be transferred from the jail to the Detention Centre by the IO/SHO where he will be kept till the conclusion of the trial of the present case and will be produced before the Court as and when required.
4. The petitioner moved an application under Section 439 Cr.P.C. before Ld. ASJ, West District, Tis Hazari Courts. Ld. ASJ by order dated 25th June, 2021 allowed the application and admitted him on bail by releasing him from Detention Centre subject to furnishing a personal bond and surety bond of Rs. 1 Lac. The petitioner did furnish the surety of the respective amounts but has still not been released from the said detention centre.
5. When the petitioner's wife approached the detention centre with the order of the Ld. ASJ, the centre was not convinced to release the petitioner. A visit was made on 23rd November, 2021 by an advocate at the FRRO Detention Centre in lieu of directions passed by this Court in order dated 07th October, 2016 in W.P.(C) No.4663/2008. The petitioner communicated the difficulty being faced by him for release and wrote a letter dated 23rd November, 2021 in order to seek assistance in Visa Extension and released from the detention centre and handed over the copy to the visiting counsel.
6. The petitioner's visa has been declined multiple times without assigning any reasons, and a simple message is received on the mobile stating that the visa extension application has been closed. The petitioner filed W.P. (CRL) No.550/2022 (one of the two petitions adjudicated herein). Reply dated 24th March, 2022 was filed by the FRRO where the order dated 14th July, 2021 impugned in Writ Petition 827/2022 (the other petition being adjudicated herein) was filed.
7. As per the said order passed by the FRRO, it was directed that the petitioner would not move out of Sewa Sadan, Lampur till the travel arrangements are made and such restrictions were imposed un
AI
Foreign nationals, especially undertrials, should not be detained without due process of law. The competent authority should consider alternative options under Section 3(2) of the Foreigners Act, suc....
The court ruled that it lacks jurisdiction to direct visa issuance in bail proceedings, emphasizing the distinction between judicial custody and executive detention under the Foreigners Act.
Bail conditions for foreign nationals must respect personal liberty under Article 21 and cannot lead to indefinite detention without legal backing.
Natural justice must be afforded before restricting the movement of foreigners under the Foreigners Act.
Bail conditions must not be excessively onerous, as this equates to a refusal of bail, violating the principles of justice, especially for foreign nationals under Article 21.
The main legal point established in the judgment is the importance of personal liberty, equality before the law, and the need to impose conditions to ensure the petitioner's availability for trial, r....
The court established that foreign nationals facing criminal charges in India are entitled to fundamental rights, including the right to a fair trial and bail, but these rights must be balanced again....
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