Gujarat High Court
Hemal Mahendrabhai Lingalia vs State Of Gujarat & on 10 August, 2016
Author: C.L.Soni
Bench: C.L. Soni
R/CR.MA/20866/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDERS) NO.
20866 of 2014
In CRIMINAL MISC.APPLICATION NO. 17149 of 2014
In CRIMINAL MISC.APPLICATION NO. 18625 of 2013
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HEMAL MAHENDRABHAI LINGALIA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR C B UPADHYAYA, ADVOCATE for the Applicant(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 2
MR KT DAVE, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 10/08/2016
ORAL ORDER
1. The applicant was arrested in connection with the offence punishable under section 135 of the Customs Act, 1962. After he was refused the bail by the learned Additional City Sessions Judge, City Civil & Sessions Court, Ahmedabad, he approached this Court by filing Criminal Miscellaneous Application No. 18625 of 2013 seeking bail under section 439 of the Code of Criminal Procedure, 1973 ("the Code") in connection with his arrest for the above said offence. This Court vide order dated Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER 28.11.2013, released the applicant on certain conditions including the condition that he shall surrender his passport, if any, to the lower court within a week and shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned.
2. He thereafter moved an application being Criminal Misc. Application No. 2011 of 2014 seeking modification of the condition. It was disposed of as not pressed by the applicant on the ground that the application did not contain necessary averments required for seeking modification of the condition. He, then, moved Criminal Application No. 7770 of 2014 seeking direction for release of his passport for three months and for permission to leave for Dubai on the terms and conditions which this Court may deem fit to be imposed. He sought permission to withdraw the said application for filing fresh application with some more material. The said application was, thus, disposed of as withdrawn vide order dated 16.6.2014.
3. Thereafter, he moved an application being Criminal Miscellaneous Application No. 4551 of 2014 seeking modification of condition (c) and (d) of the order of bail dated 28.11.2013. By condition (c) and (d), the applicant was Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER required to surrender his passport and not to leave the State of Gujarat without prior permission of the Sessions Court concerned. The said application was considered by this Court and vide order dated 26.3.2014, condition (c)&(d) were suspended and put under abeyance for a period of six weeks from 27.3.2014 so as to permit the applicant to leave the State of Gujarat and also the Territory of India for the purpose of entering the Territory of United Arab Emirates (Dubai). The Court also directed in the said order that on expiry of the period of six weeks, the applicant shall return to the territory of India and shall immediately surrender his passport to the concerned authority and shall comply with all other conditions of bail. It appears that after coming to India and after lapse of some time, the applicant again moved Criminal Misc. Application No.17149 of 2014 seeking modification of condition
(c)(d) and (e) contained in para 6 of the order for bail and to permit him to leave the territory of the State of Gujarat and India to go to the United Arab Emirates for a period of six weeks. This application was made on the ground that the validity of his VISA was to expire on 4th November, 2014 and if he was not permitted to leave the territory of India so as to enter the territory of United Arab Emirates, his VISA shall stand terminated.
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R/CR.MA/20866/2014 ORDER
4. The Court having considered the facts stated in the application, partly allowed the application and ordered that the condition (c)(d) and (e) shall stand suspended and remain under abeyance for a period of six weeks from 4.11.2014 so as to permit the applicant to leave the territory of the State of Gujarat and India and enter the territory of the United Arab Emirates. Certain other conditions were placed by the said order and it was provided in the said order that on expiry of the said period, the applicant shall immediately return to the territory of India and surrender his passport to opponent NO.2
- Director of Revenue Intelligence. Now, as per this order, the applicant was to return to India on expiry of six weeks' period from the date of the order. However, he moved the present application seeking extension of suspension of bail conditions for a further period of sixty days and to permit him to extend his stay in the United Arab Emirates for a period of sixty days. At the hearing of the present application, when the Court found that the time granted to the applicant to return to India and surrender his passport to the concerned authority had already passed, the Court was not inclined to consider the application and passed the following order on 19.12.2014:
"1. This is an application for extension of time for a period of 60 days granted by this Court vide Page 4 of 8 HC-NIC Page 4 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER order dated 3.11.2014. As per the said order, the applicant was required to immediately return to the territory of India and to surrender his passport to respondent No.2 on expiry of the period granted by this Court. It is stated that the time granted by this Court under the said order has already expired. Under these circumstances, it is required for the applicant to first return to the territory of India and only then any of his application, including the present application, could be considered. It is directed that if the applicant does not return to the territory of India within one week from today, Non-bailable warrant should be issued against the applicant.
2. S.O. to 9th January 2015."
5. It appears that after the said order, since no action was taken, the Court asked the office of this Court to inquire about the action taken for issuance of the Non Bailable Warrant ("NBW"). It appears that the Registry of this Court has placed report dated 2.5.2015 of the Additional Chief Metropolitan Court, Ahmedabad stating that the NBW was sent to the District Superintendent of Police, Bhavnagar for taking further action. However, no information was available as regards execution of the NBW.
6. The Court passed further order on 8.5.2015 as under:
"1. Learned A.P.P. Mr.K.L. Pandya states that since the applicant-accused is in foreign country i.e. United Arab Emirates (UAE) with which our country has extradition treaty, the office is to follow necessary procedure requesting the concerned Ministry of the Central Government to send request to the concerned Embassy of the said foreign country for the purpose of extraditing the applicant accused to our country so that the Non Bailable Warrant issued by this Court Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER in the present application could be executed.
2. The office may therefore follow necessary procedure . For the said purpose, Stand Over to 10th August, 2015. "
7. The concerned department of the Registry of this Court dealing with the Criminal matters has placed on record the guidelines issued by the Ministry of Home Affairs IS Division II, Legal Cell, New Delhi dated 11th February, 2009 regarding service of summons/notice, judicial process on the persons residing abroad. However, as per such guidelines, it appears that only the summons in the court matters could be sent to the Ministry of Home Affairs for effecting the service to the persons residing abroad but for execution of NBW for extradition of the accused from foreign country it is to be forwarded to the Ministry of External Affairs.
8. In view of the above, appropriate action is required to be taken to forward Non-Bailable Warrant to the Ministry of External Affairs to serve the same to the applicant-accused at Dubai, where he has gone on the ground of extending validity of VISA, to secure his extradition from Dubai to India. His extradition is required not only on the ground of committing breach of condition of bail granted by this Court but also for securing his presence in the trial for the offence in connection with which he is enlarged on bail. Since the NBW issued by Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER earlier order has remained unexecuted, fresh NBW will be required to be issued to the applicant-accused which shall be required to be served through the Ministry of External Affairs, Government of India, New Delhi under the Extradition Treaty with the country of Dubai.
9. In view of the above, it is directed that the Court of the learned Additional Chief Metropolitan Magistrate Court, Ahmedabad shall issue the NBW against the applicant accused within a period of one week from the date of receipt of this order and forward the same immediately to the Registry of this Court. The Registry of this Court in turn shall forward the same to the Ministry of External Affairs at Delhi with a request to serve the NBW to the applicant-accused to secure his extradition from Dubai to India. On receipt of the NBW from the Registry of this Court with a request to serve it to the applicant accused in Dubai and to secure his extradition from Dubai to India, the Ministry of External Affairs, Government of India, New Delhi shall take appropriate action within a reasonable time period to serve NBW to the applicant-accused in Dubai and to secure his extradition from Dubai to India and the progress in this regard shall be intimated to this Court. The office to take immediate steps to convey order of this Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat Aug 13 03:04:58 IST 2016 R/CR.MA/20866/2014 ORDER court to the Court of the learned Additional Chief Metropolitan Magistrate Court, Ahmedabad for necessary action as per this order. Post this matter for reporting progress in the matter on 20th October, 2016.
Sd/-
(C.L.SONI, J.) anvyas Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 13 03:04:58 IST 2016