State’s Obligation To Protect Liberty Of Foreigners: Bombay HC Grants ₹10 Lakh Compensation To Chinese Woman Troubled By Customs Department

The Bombay High Court granted compensation of Rs. 10 lakhs to a Chinese woman who was harassed and troubled by the Customs Department.

The Court said that the State has an obligation to protect the liberty of foreigners who come to India and ensure that their liberty is not deprived, except in accordance with the law.

The Court was dealing with a criminal writ petition preferred by the Chinese national against FRRO, Bureau of Immigration.

A Single Bench of Justice Prithviraj K. Chavan observed, “Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word “person” in Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to this country. The State has an obligation to protect the liberty of such foreigners who come to this country and ensure that their liberty is not deprived except in accordance with the procedure established by law.”

The Bench remarked that our Constitution commands that foreign nationals coming here shall not be discriminated and they will have to be treated equally before the law and their right to live will have to be honoured and protected. It added by saying that they shall not be prosecuted or convicted except for violation of any law in force in India and this is guaranteed under Article 20 of the Constitution.

Advocate Anand Sachwani appeared for the petitioner while Special Public Prosecutor Anuradha Mane and APP P.P. Bhosale appeared for the respondents.

Factual Background -

The petitioner (Chinese woman) arrived in India from Beijing in 2019 and her flight was diverted from Delhi to Mumbai due to bad weather. Upon arrival at the airport, on specific information, she was intercepted near Exit Gate of arrival after clearing from Green Channel. Upon inquiry, she informed the Customs officials that her diverted flight was to leave back to Delhi after long gap, and therefore, she decided to clear immigration and customs in Mumbai and head to Delhi by another domestic flight to save time. Air Intelligence Unit, Customs inquired with the petitioner whether she was carrying any prohibited goods, contraband, or gold in the baggage. Upon her search and screening, the officials suspected something indicating presence of heavy metal in her cabin baggage.

Subsequently, ten yellow metal bars of foreign marking weighing 1 kg each purported to be gold were found. The same was seized and the said metal bars were found to be 24 carat gold valued at Rs. 3,38,83,200/-. Resultantly, the petitioner was booked under the Customs Act, 1962 for procurement and smuggling of gold into India. She was arrested and remanded to judicial custody. The Additional Chief Metropolitan Magistrate acquitted her and being aggrieved, the Centre approached the Additional Sessions Judge. But the appeal of the Customs Department was dismissed and hence, the petitioner moved a miscellaneous application seeking direction to FRRO to issue Exit Permit to facilitate her to travel back to China. However, even after the Court’s directions, she was denied with the same. Therefore, she was before the High Court.

The High Court in the above regard noted, “Notwithstanding the said guaranty under Article 21 of the Constitution, in this case, respondent No.2 – Customs Department acted in a most brazen and perfunctory manner by preferring an appeal before the Additional Sessions Judge despite knowing the fact that in view of the aforesaid Circular as well as Section 378 (4) of the Cr.P.C, appeal would lie before this Court, especially, in light of the fact that several appeals in identical matters have been preferred by the respondent No.2 before this Court.”

The Court emphasised that the petitioner who is a non-citizen, is entitled to get Exit Permit and the Centre, apart from the fact that the petitioner who has already been given a clean cheat by two courts and there being no prospects or possibility of reversing the decisions, should have viewed the matter in a humanitarian angle with sensitivity in light of the fact that apart from her right to life and liberty, she had already spent more than five years in India with two daughters left back in her country.

“For the foregoing reasons, apart from the right of the petitioner to get Exit Permit within two weeks from the date of passing of this order, she needs to be adequately compensated for the mental agony, trauma and sufferings undergone by her due to the conduct of the respondent No.2. Respondent No.2 – Union of India shall pay an amount of Rs.10,00,000/- to the petitioner”, it directed.

Accordingly, the High Court allowed the petition.

Cause Title- Cong Ling v. FRRO Bureau of Immigration & Ors. (Neutral Citation: 2024:BHC-AS:27346)

Appearance:

Petitioner: Advocates Anand Sachwani and R.R. Shah.

Respondents: SPP Anuradha Mane, APP P.P. Bhosale, and Advocate D.P. Singh.

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