ORDER

ANOOP KUMAR MENDIRATTA, J (ORAL)

CRL.M.A. 470/2023

1. CRL. A.1063/2016 has been preferred by the appellant challenging the judgment dated 09.09.2016 and order on sentence dated 21.09.2016 whereby the appellant has been sentenced to undergo Rigorous Imprisonment for 03 years with fine of Rs. 50,000/- (in default of payment of fine, to undergo SI for six months) for offence punishable under Section 21(b) of NDPS Act, 1985. The appeal stands admitted vide order dated 09.11.2016 and sentence of the appellant was suspended vide order dated 07.02.2017.

2. CRL.M.A.470/2023 has been preferred by the appellant seeking directions for release of passport and renewal of Visa, on which directions were issued by this Court vide order dated 01.02.2023 as under:

“6. In the circumstances, on a balance of all considerations, and to enable the appellant to have his passport and visa renewed, so that he does not remain an illegal alien in the country, the following directions are issued :

a. The Registry is directed to release the original passport (Exb- PW-5/A in the Trial Court Record) to the petitioner, after retaining a complete photocopy thereof, and after verifying his credentials;

b. The petitioner is permitted to make the necessary application for renewal of his passport to the High Commission of Nigeria, New Delhi within 07 days thereafter, with prior intimation to the Investigating Officer of the case; who will accompany the petitioner at the time he deposits his passport and appears for his interview in the High Commission;

c. The original receipt/acknowledgment of deposit of passport for renewal shall be handed-over by the petitioner to the Investigating Officer, who (latter) shall collect the original passport from the High Commission upon renewal; and shall retain it with himself, awaiting further directions by this court.

7. In so far as renewal/extension of visa is concerned, Mr. Kirtiman Singh submits that he shall obtain appropriate instructions from the FRRO as regards the procedure for grant/extension of the appropriate category of visa for the appellant, since he is still facing legal proceedings in India.”

3. Learned counsel for the appellant submits that passport has since been renewed but directions need to be issued for renewal of appropriate category of Visa to ensure that the stay of the appellant is authorized during the pendency of appeal.

4. The matter assumes significance in view of difficulties faced by foreign nationals embroiled in criminal cases, since despite being granted the benefit of bail, their movement remains restricted due to confinement in Detention Centres.

5. It may be noticed that in absence of extension of Visa, a foreign national is likely to be deported on initiation of proceedings under Section 3(2)(c)(e) of the Foreigners Act, 1946 read with Section 11(2) of the Foreigners Order, 1948. The foreign nationals, who violate the Visa rules and norms are liable to face the penal consequences under the Foreigners Act, 1946 besides deportation. The discretionary power of extending the Visa of any foreign national before expiry in case of overstay is exercised by the competent authority considering the reasons for overstay and the same can be regularised in justified cases. With reference to a foreign national against whom one or more cases are pending, the matter is considered by the competent authority under the Foreigners Order, 1948.

6. The clarification rendered by FRRO in the status report filed on record as reflected in paras 5 and 9 in this regard may be reproduced for reference:

“5. Further, in respect of a foreign national against whom one or more cases are pending, it is humbly submitted/apprised that as per Section 5(2)(C) of the Foreigners Order, 1948, leave shall be refused (to a foreign national) if the civil authority (FRRO) is satisfied that the foreigner's presence is required in India to answer a criminal charge. That under such circumstances, an appropriate category of Entry Visa (X - Misc c