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2025 Supreme(Online)(Ker) 45573
IN THE HIGH COURT OF KERALA AT ERNAKULAM
V. G. Arun, J
ALI BIN AYINIKALAYIL AVUDAL @ AZIZ BIN AYINIKALAYIL AVUDAL – Appellant
Versus
STATE OF KERALA – Respondent
CRL.MC NO. 5919 OF 2025 | CRIME NO.1068/2024
For the Appellants/Petitioners: SRI.BIJU .C. ABRAHAM, SHRI.THOMAS C.ABRAHAM, SHRI.BASIL MATHEW
For the Respondents: O.M.SHALINA, AJITH MURALI
Court found that a foreigner's ties to local community can justify temporary passport release despite serious criminal charges.
Headnote:(A) Transplantation of Human Organs and Tissues Act - Sections 20 and 9 - IPC - Sections 465 and 471 - Allegation against petitioner for undergoing a kidney transplant surgery by creating forged documents - The court permitted the release of the petitioner's passport, allowing him to visit Malaysia because of his ties to Kerala despite the seriousness of the charges. (Paras 2, 5, 6)
(B) Right to Freedom of Movement - Court addressed the balance between serious allegations and the petitioner's established roots in Kerala justifying temporary passport release. (Paras 4, 5)
Facts of the case:
The petitioner is alleged to have conducted a kidney transplant using forged documents as a Malaysian citizen and seeks release of his passport. The trial court had previously denied this request due to the nature of the allegations against him.
Findings of Court:
The petitioner's strong local ties and marriage to a local woman support his request to temporarily release his passport for legitimate travel while ensuring compliance with legal requirements.
Issues: Whether the petitioner’s rights should be curtailed due to citizenship status in light of his established life in Kerala.
Ratio Decidendi: The court held that while the allegations were serious, the petitioner’s ties to Kerala were significant enough to warrant the allowance of his passport for a temporary period even as a foreign national.
Result: Crl.M.C. is allowed.
ORDER
Dated this the 5th day of August, 2025 Petitioner is the accused in Crime No.1068 of
2024 registered at the Erumapetty Police Station for offences punishable under Sections 465, 471 of IPC and Section 20 r/w Section 9 of the Transplantation of Human Organs and Tissues Act .
2. The crime is registered on the allegation that the petitioner, a Malaysian citizen, underwent a kidney transplant surgery in Kerala by concealing the fact that he is a foreigner, by creating forged documents and thus, violated the provisions of the Transplantation of Human Organs and Tissues Act . As the petitioner’s passport is seized by the Police, he sought release of the passport in order to visit Malaysia. The trial court dismissed the application as per Annexure 8 order. Hence, this Crl.M.C.
3. Learned Counsel for the petitioner points out that the application is rejected for the reason that the petitioner is a Malaysian citizen. It is the submission of the learned Counsel that the petitioner was born in Malaysia to Indian parents and thus conferred with Malaysian citizenship. Petitioner is permanently residing in Kerala and Annexure 2 Marriage Certificate would show that he has married a Malayali. The petitioner wants to visit Malaysia as he still retains some business interests there.
4. Learned Public Prosecutor submitted that, considering the gravity of the allegations and the fact that the petitioner is a Malaysian citizen, the impugned order warrants no interference.
5. No doubt, the offence alleged is serious in nature. At the same time, the question is whether the petitioner's right to freedom of movement should be curtailed completely by refusing to release his passport even for a short duration. The learned Magistrate was prompted to take such a decision as the petitioner is a Malaysian citizen. From the submissions made across the Bar and the documents on record, it is evident that though a Malaysian citizen, he has deep roots in Kerala and is married to a Malayali. In such circumstances, the petitioner being a Malaysian citizen alone need not result in refusal of his passport.
In the result, the Crl.M.C. is allowed.
