2020 (9) TMI 752 - HC - Customs

Request for return of passport - Smuggling - Gold Bars - It is challenged only on the ground that if the passport is returned to the respondent, he will flew away from India and there is possibility of abscond and he will not return to India for investigation - Sections 135(1) (a), 135 (1) (b), 135(1) (i) (a) of Customs Act, 1962 - HELD THAT - A solution has to be found within the parameters of law to deal with the case of the petitioners. The petitioners will have to face proceedings under the Customs Act for the alleged violations. Therefore, their passports cannot be handed over to them at this juncture. In order to strike an harmonious balance between the necessities of law and the requirements of the petitioners to have their stay in India validated so as to avoid being prosecuted under the Foreigners Act, 1946, the FRRO, Chennai, who is present before this Court made some welcome suggestions. He stated that his office is ready and willing to extend the petitioner's Visas for a reasonable period as required by the DRI, which is the prosecuting agency. The respondent came to India by ETA business visa. His entry was on 28.11.2019, and the permission to stay expired on 28.04.2020. Therefore his stay at India became illegal under Section 14 of Foreigners Act without Registration Request to FRRO, Chennai prior to valid e-visa period, namely 25.04.2020. Since the petitioner was arrested and his passport was seized, he was not able to register his request for extension of his visa at FRRO, Chennai. That apart, the offence registered as against the petitioner are not related to the passport of the petitioner. Therefore, the learned Judicial Magistrate, Special Court for Customs, Alandur, Chennai rightly ordered to return his passport on certain conditions - The respondent shall not depart India till the completion of proceedings in O.S.No.116 of 2019 on the file of the petitioner / complainant.

Summary

Issues:
Challenge to order returning passport to foreign national involved in customs offences.

Analysis:
The petitioner challenged the order directing the return of the respondent's passport, arguing that the respondent, a foreign national, was involved in smuggling gold worth a significant amount into India. The respondent admitted to the offence and was released on bail, seeking the return of his passport. The petitioner contended that returning the passport could lead to the respondent fleeing India, hindering further investigation and departmental proceedings. The petitioner relied on a previous judgment to support this argument.

The respondent, a South Korean citizen, had business contacts in India and arrived on an e-Visa, which was valid until a certain date. Due to the passport detention, the respondent faced challenges in complying with visa conditions and reporting to the authorities. The respondent argued that the offence did not pertain to the passport act and that returning the passport was necessary for his stay in India as per the Foreigners Act. The respondent also expressed willingness to cooperate with authorities and undertake necessary steps for visa extension and compounding of the offence.

The court considered the circumstances, including the nature of the offences, the respondent's status as a foreign national, and the visa conditions. Referring to relevant legal provisions, the court directed the trial court to hand over the passport to authorities for visa extension and imposed additional conditions on the respondent. These conditions included restricting the respondent from leaving India until the completion of proceedings, allowing the respondent to request a visa extension, and directing the petitioner to facilitate the process for compounding the offence within a specified period. The respondent was also required to provide his residential address in India.

In conclusion, the court disposed of the petition by issuing specific directions to balance the legal requirements and the respondent's stay in India, ensuring compliance with visa regulations and facilitating the resolution of the customs offences.