Kerala High Court
Mohammed Yafiu @ Yafiu Mohammed vs Union Of India on 6 October, 2016
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938
OP(Crl.).No. 432 of 2016 (Q)
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PETITIONER(S):
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MOHAMMED YAFIU @ YAFIU MOHAMMED
S/O.AHMED DIDI, MALDIVIAN NATIONAL
PP.NO. E 0400394, R/O. H. REMSIS II FLOOR,
ROASHANEE MAGU, KAAFU MALE,
REPUBLIC OF MALADIVES
BY ADV. SRI.R.SUNIL KUMAR
RESPONDENT(S):
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1. UNION OF INDIA
REPRESENTED BY SECRETARY,
MINISTRY OF HOME AFFAIRS,
NEW DELHI
2. STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
3. FOREIGN REGIONAL REGISTRATION OFFICER
TC.14/1377, VAZHUTHACAUD, OPP. GANAPATHY TEMPLE,
THYCAUD PO, TRIVANDRUM
4. KUMAR MANOHAR MANJUL
INTELLIGENCE OFFICER,
NARCOTIC CONTROL BUREAU,
SUB ZONE, THIRUVANANTHAPURAM
R1 BY SRI.N.NAGARESH,AGS
BY SRI.SUVIN R.MENON, CGC
R2 TO R4 BY PUBLIC PROSECUTOR SRI.T.R.RENJITH
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
OP(Crl.).No. 432 of 2016 (Q)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: COPY OF THE INTERIM ORDER IN WPC.
NO. 38018/2015
EXHIBIT P2: COPY OF THE JUDGMENT IN WPC.NO. 38018/2015
EXHIBIT P3: COPY OF APPLICATION FOR RENEWAL OF PASSPORT
AND ITS REPLAY SUBMITTED THROUGH EMAIL
EXHIBIT P4: COPY O THE JUDGMENT OF THIS COURT IN BA.
NO. 3517/2012
RESPONDENT(S)' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
RAJA VIJAYARAGHAVAN, V., J.
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O.P.(Crl) No.432 of 2016
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Dated this the 6th day of October, 2016
J U D G M E N T
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1.The petitioner, a Maldivian national and holder of the Maldivian Passport No.E 0400394 was arrayed as the 1st accused in S.C.No.702 of 2014 on the file of the Additional Sessions Judge - IV (Special Judge NDPS case), Thiruvananthapuram. He was charged for having committed offences punishable under Sections 21(C), 25, 27(A) and 28 read with 8(C) of the NDPS Act. By judgment dated 16.11.2015, he along with the other accused were found not guilty and were acquitted of all charges.
2.The passport of the petitioner along with other personal belongings were seized by the detecting officer and the O.P.(Crl) No.432/2016 -2- same was produced before the court. Pursuant to the acquittal of the petitioner, he was released on 17.11.2015. However, since his VISA had expired by then, the petitioner was confined in the Poojappura Police Station, where he stays even now.
3.In the meantime, the Narcotic Control Bureau has preferred Crl.A.No.55 of 2016 before this Court and the same was admitted. This Court as per order dated 19.1.2016 has stayed all the proceedings with regard to the release of the properties as ordered by the court below in favour of the petitioner until further orders. It appears that on 7.6.2016, his passport also had expired.
4.In this petition, the petitioner seeks for issuance of an appropriate order to the trial court to appoint a Commission for collecting the petitioner's passport from the court and for producing the same before the O.P.(Crl) No.432/2016 -3- Maldivian Embassy at Trivandrum in order to get the passport revalidated and thereafter to produce the same before the Foreign Regional Registration Officer, Trivandrum to stamp the VISA in it and thereafter to produce the same before the trial court itself.
5.According to the learned counsel, the petitioner does not require his travel documents at this particular point of time and the same can be returned back to the trial court. Unless his passport and VISA is renewed, the petitioner will have to remain in the confines of the Poojappura Police Station. The appeal itself cannot be heard at this stage as service to the co-accused has not been served in the connected appeals.
6.I have heard the learned Central Government Standing counsel who appears for the 1st and 3rd respondents and also the learned Standing counsel for the 4th respondent. O.P.(Crl) No.432/2016 -4-
7.A detailed statement has been filed by the Central Government Standing Counsel for and on behalf of the respondents 1 and 3. In the statement filed, it is stated that for processing of the VISA application of the petitioner presentation of the original passport is mandatory and the approval of the VISA is subject to clearance from security angle and also for ensuring that the particular foreigner is not wanted by any law enforcing agency. However, considering the nature of proceedings and subject to the orders of this Court, it has been stated that stay of the petitioner in the Country can be extended as per the requirement of the petitioner by issuing a proper travel document provided a valid passport is produced before the 3rd respondent.
8.I have considered the rival submissions and have perused the materials on record. I am of the firm view that an acquitted accused does not deserve to spend his life in the O.P.(Crl) No.432/2016 -5- confines of a Police Station merely because of the fact that an appeal has been preferred against the judgment of acquittal. Though the fundamental right of a foreigner is confined to Article 21 of the Constitution for life and liberty and does not include the right to reside and stay in the country as mentioned in Article 19(1)(e), once he is lawfully admitted to this Country, he is entitled to certain immediate rights necessary to the enjoyment of ordinary private life. The principles enshrined in Article 21 of the Constitution are equally applicable to a foreigner as they are to a citizen. It will be unjust to confine the petitioner in a Police Station for years together for the inability of the State to make arrangements to get his passport and VISA renewed.
9.In view of the above, the following directions are issued in the interest of justice.
O.P.(Crl) No.432/2016 -6-
a) The learned Additional Sessions Judge
-IV (Special Judge NDPS cases) Court, Thiruvananthapuram shall release the passport produced as Ext.P2 in S.C.No.72 of 2014 on the files of the said court, to the Sub Inspector of Police, Poojappura Police Station within three weeks from the date of receipt of a copy of this order.
b)The Sub Inspector shall produce the passport along with the necessary documents and applications signed by the petitioner before the Maldivian Embassy at Trivandrum so as to get the passport renewed.
c)On receiving intimation as regards the renewal of the passport, the Sub Inspector of Police, Poojappura Police Station shall produce the same before the 3rd respondent with the requisite applications to revalidate the VISA.
d)After the stamping of VISA is completed by the 3rd respondent, the Sub Inspector of Police, Poojappura Police Station shall obtain the passport along with the stamped VISA from the 3rd respondent and shall produce the same before the Additional Sessions Judge-IV, Thiruvananthapuram where it shall be retained until the disposal of the appeal.O.P.(Crl) No.432/2016 -7-
The rights of the authorities to act in terms of the Foreigners Act and Orders thereunder shall not be affected by this order. The learned Additional Sessions Judge-IV, Thiruvananthapuram shall impose reasonable and appropriate conditions to ensure the presence of the petitioner in the Trivandrum District.
Sd/-
RAJA VIJAYARAGHAVAN, V. JUDGE Ps/4/10/16