JUDGMENT

J.B. Goel, J. This is an application under Section 439 of the Code of Criminal Procedure (for short "the Code"). The petitioner is a foreign national, an Iranian. He is being prosecuted for an offence under Sections 132/135 (1) (a) of the Customs Act. His bail application was rejected by the learned ACMM on 23.9.1998 and by an Addl. Session Judge (ASJ) on 12.10.1998

2. Briefly, the facts are, that the petitioner is an Iranian national and had come to India on Tourist visa. On 13.9.1998, he was going back to Tehran from IGI Airport, New Delhi by Emirates Airlines Flight No. KE-703. He got clearance from Immigration and Customs but did not declare that he was carrying foreign currency. However, on suspicion, he was intercepted by Customs Officers and on search of his person and personal baggage, US $ 10,350 and Iranian Currency 5,05,000 Rials were recovered. He is alleged to have made disclosure statement on 13.9.1998 under Section 108 of the Customs Act admitting the aforesaid recoveries, seizure and incriminating facts. He was arrested on 1. 3.9.1998 and is in custody., since then. A complaint has since been filed. Both the learned counsel have addressed arguments at length.

3. Learned counsel for the petitioner has contended that the petitioner is a highly qualified scholar of Persian language, a respected religious leader of Iran and a Darvesh (sufi saint) and running renowned "Khankha" in Tehran and enjoys social and religious reputation and status throughout the world. On being invited by Hazrat Amir Kabir Mir Syed Ali Hamdani, Cultural and Educational Trust, he had come to India for the purpose of preachment and blessings along with nine disciples on 11.8.1998. He wanted to go to America for religious purposes and also to see his son. However, due to delay in visa and urgency of other engage merits at home, he decided to go first to his country Tehran and then to USA. In the meantime, his nine disciples had left earlier. The petitioner was having with him balance of US $ 2,000 and US $ 8350 were given to him by his disciples as their contributions towards charity in religious activities in U.S.A. and this was the amount with him while he was leaving the country. The value of the Iranian currency was not more than US $ 105; he was a bona fide tourist and had not committed any offence. Learned counsel has also contended that the offence is punishable with maximum imprisonment of three years or fine and even could be let off on fine only; he has been in custody since 13.9.1998; he is prepared to furnish surety and to abide by any conditions that may be imposed by this Court. He has also contended that in similar and rather more serious cases, bails have been granted by this Court both to Indian nationals and to foreigners. Non-grant of bail is an unreasonable restriction which is violative of Articles 20 to 22 of the Constitution. He has relied on certain case law.

4. Whereas, learned counsel for, the respondent has contended that Article 19 is not applicable to foreigners. Petitioner being a foreigner is not entitled to move freely in the country and the offence is grave and serious economic offence causing foreign exchange being taken from the country. The petitioner, if released on bail, is likely to jump bail and will not be available for trial. An affidavit has been filed showing 50 instances where foreigners are alleged to have jumped the bail. He has also relied on certain caselaw.

5. I have considered the contentions and the facts and circumstances. It is not disputed that US $ 10,350 and Iranian currency 5,05,000 Rials were recovered from the possession of the petitioner which he had not declared before the Immigration and Customs authorities before clearance for leaving the country. How and under what circumstances he may have acquired this foreign currency will be seen during trial. The facts remains that prima facie this is violation of the provisions of FERA and Customs Act punishable under Sect