2019 (8) TMI 1040 - HC - Customs

Smuggling of human embryos into India - Release of petitioner on Bail - handing over to the Petitioner the Petitioner s Passport at the time of Bail - refund of amount taken from the petitioner at the time of releasing the Petitioner on bail - HELD THAT - The purpose for his visit to India on eight different dates is not brought on record by the Petitioner. There are serious allegations against the Petitioner that the Petitioner is involved in smuggling of human embryos. The learned counsel for Respondent No.1 submitted that during the course of investigation, the mobile of the Petitioner was seized and from the messages of the Petitioner s phone, it is revealed that the Petitioner was to deliver the human embryos to the Indo Nippon IVF Clinic in Bandra (W), Mumbai, and when the investigation went to the said clinic and taken a search they found four documents relevant to the investigation. Thereafter at the relevant time, the Petitioner voluntarily and willingly surrendered his Malaysian passport bearing A37044226 to the DRI. It is pertinent to mention at this stage that a show cause notice has been issued to the Petitioner. Petitioner is a Malaysian National, and if his passport is returned to him, he will leave India and may not return for adjudication, and it will be very difficult to secure his presence in India for the purpose of adjudication and trial. The offence in which the Petitioner is alleged to have been involved is a serious one i.e. the smuggling/illegal import of human embryos into Indian from Malaysia by mis-declaring the same to the Malaysian Customs authorities as stem cells. The presence of the Petitioner for adjudication and trial is necessary. Petition dismissed.

Issues:
1. Illegal detention and confiscation of passport by Directorate of Revenue Intelligence.
2. Violation of fundamental rights under Article 21 of the Constitution of India.
3. Authority to impound passport under Customs Act and Foreigners Act.
4. Allegations of smuggling human embryos and involvement in serious offences.

Issue 1: Illegal detention and confiscation of passport by Directorate of Revenue Intelligence
The petitioner, a Malaysian national, arrived in India and was detained by Respondent No.1 at the airport. The petitioner alleged that his passport was forcefully confiscated, and he was illegally detained and tortured without being informed of the grounds of his arrest. The petitioner sought directions for the return of his passport and refund of bail amount. The court was urged to consider the violation of fundamental rights under Article 21.

Issue 2: Violation of fundamental rights under Article 21 of the Constitution of India
The petitioner argued that despite being a foreign national, he was entitled to basic human rights under Articles 21 and 22. The petitioner's counsel contended that the detention and confiscation of the passport by Respondent No.1 violated the petitioner's fundamental rights of personal liberty and right to travel abroad. The court was referred to various judgments supporting the petitioner's claim.

Issue 3: Authority to impound passport under Customs Act and Foreigners Act
The petitioner's counsel argued that Respondent No.1 had no authority to impound the petitioner's passport under the Customs Act or Cr.PC. It was emphasized that the provisions of the Foreigners Act should prevail over the Customs Act. The court was presented with legal precedents supporting the argument that the authorities cannot impound a passport without proper legal basis.

Issue 4: Allegations of smuggling human embryos and involvement in serious offences
Respondent No.1 alleged that the petitioner was involved in smuggling human embryos into India. It was claimed that the petitioner was arrested under the Customs Act on suspicion of committing an offence. The respondent argued that returning the passport to the petitioner could lead to his evasion of legal proceedings and trial. The court noted the seriousness of the allegations and the need for the petitioner's presence for adjudication and trial.

In conclusion, the court rejected the writ petition, emphasizing the seriousness of the allegations against the petitioner and the necessity of his presence for adjudication. The court noted that the petitioner voluntarily surrendered his passport in connection with the investigation, and returning it could jeopardize the legal process. The judgment highlighted the specific circumstances of the case and the importance of ensuring the petitioner's presence for legal proceedings.

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