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2023 Supreme(Del) 4950
IN THE HIGH COURT OF DELHI AT NEW DELHI
Amit Bansal, J.
Charles Kingsley Okokaso – Appellant
Versus
State (NCT of Delhi) – Respondent
Cr.A. 288 of 2023
Decided On : 19-07-2023
Mr. Ashutosh Kaushik, Advocate, for the Appellant.
Mr. Ritesh Kumar Bahri, APP for the State with SI Hitesh Bhardwaj, PS Crime Branch.
Ms. Pratima N. Lakra, CGSC with Ms. Vanya Bajaj and Mr. Satish Kumar, Advocates for FRRO with Insp. Satish Kumar, SI George Kutty, FRRO.
Foreign nationals cannot be unlawfully detained in a detention centre after completing their sentence, as it violates their rights under Article 21 of the Constitution of India.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Foreigners Act, 1946 - Section 21(b) NDPS, Section 14 Foreigners Act - Ana Parveen v. Union of India, Emechere Maduabuchkwu v. State NCT of Delhi & Anr., Bathlomew Lkechukwu @ Charles v. Union of India
Fact of the Case:
The appellant, a Nigerian national, was convicted under Section 21(b) of the NDPS Act and Section 14 of the Foreigners Act for unlawful possession of cocaine and not having a valid visa. Despite completing the sentence, he was kept in a detention centre, which was challenged as unlawful.
Finding of the Court:
The court found that the appellant's continued detention after completing the sentence was unlawful and violated his rights under Article 21 of the Constitution of India.
Issues: Unlawful detention of a foreign national after completing the sentence, visa extension application, involvement in other criminal cases.
Ratio Decidendi: The court relied on precedents such as Ana Parveen v. Union of India, Emechere Maduabuchkwu v. State NCT of Delhi & Anr., Bathlomew Lkechukwu @ Charles v. Union of India to establish that a foreign national cannot be kept in a detention centre after completing the sentence. The court emphasized the violation of Article 21 rights and directed the release of the appellant.
Final Decision: The court directed the immediate release of the appellant from the detention centre and instructed the FRRO to take a decision on the visa application. If the appellant is required in other criminal cases, the respondent State can take him into custody in accordance with the law.
JUDGMENT
Amit Bansal, J. (Oral)
CRL.M.A. 8597/2023 (stay)
1. The present appellant/applicant, a Nigerian national, was convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Section 14 of the Foreigners Act, 1946 by the learned Additional Sessions Judge (ASJ)/Special Judge (NDPS), North District, Rohini Courts, Delhi vide order dated 17th January, 2023 for being in unlawful possession of 31 grams of cocaine and for not having a valid visa on the date of apprehension. The applicant was sentenced for the period already undergone, which was more than 7 years, vide order on sentence dated 8th February, 2023.
2. The applicant had been in judicial custody since 26th August, 2015 and completed his sentence on 8th April, 2023. As per the Status Report filed by the Foreigners Regional Registration Office (FRRO) dated 18th July, 2023, he was kept in a detention centre immediately after completion of his sentence.
3. The counsel for the applicant submits that despite having completed his sentence, the applicant is being kept in a detention centre. He submits that the present detention is unlawful.
4. The counsel for the applicant further submits that the applicant is legally married to an Indian national and out of the said wedlock, the applicant has two children, both being Indian nationals. The applicant also owns immoveable properties in India along with his wife.
5. This Court vide order dated 29th May, 2023, had issued notice to the FRRO to ascertain the status of the visa extension application of the applicant.
6. As per the Status Report filed by the FRRO on 18th July, 2023, the Indian visa of the applicant expired on 30th June, 2015 and since then, the applicant has illegally overstayed in India. The applicant had applied for extension of visa with the FRRO on 18th July, 2023. However, the requisite documents have not been uploaded.
7. The learned APP appearing on behalf of the State submits that the applicant has been involved in other criminal cases as well. As per the Status Report filed by the respondent State dated 17th July, 2023, the applicant has been found involved in the following four criminal cases:
"a) FIR No. 286/2000 u/s 20-61/85 NDPS Act PS Sadar Bilaspur-Convicted on 05.09.2001 for 10 years.
b) FIR No. 65/2004 u/s 420/467/468/471 IPC PS Gharinda, Amritsar-Consigned after proceeding u/s 299 Cr.P.C.
c) FIR No. 61/2006 u/s 21 NDPS Act & 15 Foreigners Act PS Narcotics, Crime & Railway-Declared PO on 26.03.2010. Information regarding PO has been shared with Narcotics Branch vide DD NO.0218A dt 17.07.2023.
d) FIR No. 761/2014 u/s 376 IPC & 8 POCSO Act PS Hazrat Nizamuddin, SE District, Delhi-Efforts were made to trace the status of this case. However, from the records of the Court, it could be only found that the case was pending trial in the Court of Ld. ASJ Ms. Renu Bhatnagar on 27.03.2015. Further status of the file could not be traced in the Court."
8. The learned APP states that in the event the presence of the applicant is not required in cases `b)', `c)' and `d)' above, he has no objection to the applicant's release from the detention centre.
9. I have heard the counsels for the parties and perused the record.
10. In Ana Parveen v. Union of India, W.P. (Criminal) No.43/2022, the Supreme Court vide order dated 29th April, 2022, while dealing with a case of a foreign national who had completed his sentence but was being kept in a detention centre, released the foreigner by observing that detention is not consistent with Article 21 of the Constitution of India. The relevant observations of the Supreme Court are set out below:
"11. In this backdrop, we are of the view that it would be appropriate if the Foreigners' Division of the Union Ministry of Home Affairs takes a final decision on the representation for the grant of a visa/long term visa having regard to all the facts and circumstances of the case and after assessing the inputs from the security angle. They shal
