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2020 (9) TMI 17 - HC - CustomsPermission to go abroad to their home town in Kyrgyz Republic - Smuggling - Gold - ill-health of son raised, to seek permission to go home - Calling for records to exercise powers of revision - Section 397(3) of the Cr.P.C., 1973 - HELD THAT - The present petition is not maintainable, in as much as, a revision petition had been filed by the petitioners against the order dated 10.12.2019 of the Trial Court, it is essential to observe that the present petition has been filed under Section 482 of the Cr.P.C., 1973 whereunder the inherent power of this Court to make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure, 1973 or to prevent abuse of the process of any Court or otherwise to secure the ends of justice has been saved. Though, undoubtedly, as laid down by the Hon ble Supreme Court in DR. MONICA KUMAR ANR VERSUS STATE OF U.P. ORS 2008 (5) TMI 687 - SUPREME COURT , the inherent jurisdiction under Section 482 of the Cr.P.C., 1973 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself, nevertheless, the existence of the said inherent power to make such orders as to secure the ends of justice, cannot be held to be inexistent. Taking the said rationale into account, the petition is held to be maintainable. The verified documents as verified by the Customs Department and as verified by the Attach (Consul), Embassy of the Kyrgyz Republic in India, it is apparent that the child of the petitioner No.1 born in the year 2018 is unwell. The record also indicates vide document dated 06.03.2020 as issued by the Embassy of the Kyrgyz Republic in India that vide paragraph 5 of the same that there is no one in the family of the petitioner No.1 to take care of her critically ill son and that her presence is required to ensure her son s good health and surgery. The petitioner No.1 is allowed to travel to Kyrgyzstan for a period of 45 days to get her child operated with the direction to the petitioner No.1 to return to India on the 46th day of her leaving India with the request to the Embassy of Kyrgyz Republic in India in Delhi, to ensure that the petitioner no.1 Ms. Aida Askerbekova, holder of Kyrgyzstan Passport No. AC 3167256 returns back to India on the 46th day from the date when she leaves India to Kyrgyzstan for the operation of her son which she is permitted to go only after the deposit of the sum of ₹ 10,00,000/- in the form of an FDR as directed hereinabove, which on deposit is directed to be converted into an auto renewal mode. Furthermore, in the event of the petitioner no.1 not returning back on the 46th day of her leaving India to Kyrgyzstan, the said amount of ₹ 10,00,000/- deposited in the form of an FDR as directed, would stand forfeited. Petition disposed off.
Issues Involved:
1. Legality of the petition under Section 482 of the Cr.P.C., 1973. 2. Petitioners' request for permission to travel abroad. 3. Verification of medical documents and urgency claims. 4. Enforcement of undertakings by foreign embassies. 5. Impact of the absence of an extradition treaty. 6. Imposition of penalties and confiscation of gold under the Customs Act, 1962. Issue-Wise Analysis: 1. Legality of the petition under Section 482 of the Cr.P.C., 1973: The petitioners challenged the maintainability of their petition under Section 482 of the Cr.P.C., 1973. The court acknowledged that while the inherent jurisdiction under Section 482 should be exercised sparingly and with caution, it exists to secure the ends of justice. Therefore, the petition was held to be maintainable. 2. Petitioners' request for permission to travel abroad: The petitioners, foreign nationals, sought permission to travel to their home countries. The trial court had previously denied this request, citing ongoing investigations and the risk of non-return. The petitioners argued that they were in a state of distress and needed to travel for urgent personal reasons, including medical emergencies. The court considered these submissions but emphasized the need for assurance of their return to India. 3. Verification of medical documents and urgency claims: Petitioner No.1 claimed her son required urgent medical surgery. Verified medical documents confirmed the child's condition. The Embassy of Kyrgyzstan vouched for the correctness of these documents and the necessity of the petitioner's presence for her son's surgery. Petitioner No.2 later claimed her spouse was suffering from COVID-19, but the court found this did not necessitate her travel abroad due to quarantine requirements. 4. Enforcement of undertakings by foreign embassies: The court examined undertakings provided by the embassies of Kyrgyzstan and Kazakhstan, ensuring the petitioners' return to India. However, it noted that embassies are not subject to Indian jurisdiction, making enforcement of such undertakings challenging. The absence of an extradition treaty with Kyrgyzstan further complicated ensuring the petitioners' return. 5. Impact of the absence of an extradition treaty: The absence of an extradition treaty between India and Kyrgyzstan was a significant concern. The court referred to a treaty on mutual legal assistance in criminal matters, which included provisions for cooperation in criminal investigations and proceedings. Despite this, the court remained cautious about granting permission for travel due to the risk of non-return. 6. Imposition of penalties and confiscation of gold under the Customs Act, 1962: The petitioners were accused of smuggling gold and faced penalties and confiscation under the Customs Act, 1962. The adjudicating authority had imposed significant penalties on both petitioners and confiscated the seized gold. The court noted that the petitioners had not yet deposited the penalties and emphasized the importance of their presence during the trial. Conclusion: The court allowed Petitioner No.1 to travel to Kyrgyzstan for 45 days for her child's surgery, subject to depositing ?10,00,000 in the form of an FDR. The court requested the Embassy of Kyrgyzstan to ensure her return on the 46th day. The petition by Petitioner No.2 was denied due to the nature of her spouse's ailment. The court's decision balanced the petitioners' personal emergencies with the need to ensure their return for ongoing investigations and legal proceedings.
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