The Hon’ble Delhi High Court ruled that though the Government has the absolute power to regulate the entry and stay of foreigners, but it is equally well settled that Article 21 of the Constitution of India guarantees the protection of personal liberty of a citizen and foreigner alike. No person can be deprived of personal liberty except according to procedure established by law.
In the present case, the sentence was suspended, and the Appellant was constrained to stay back in India on account of pending appellate proceedings. Hence, the Court ruled that the Appellant should not be deprived of his liberty and hence, appropriate application was directed to be filed for grant of extension of Visa during pendency of appeal.
The Court further advised the Trial Courts to expeditiously deal with the criminal cases involving foreign nationals, in the interest of equity and fair play and to ensure that the liberty is not restricted or curtailed, due to delay in conclusion of trials.
Brief Facts:
The present application has been filed to challenge the order vide which the Appellant was sentenced to undergo Rigorous Imprisonment for 03 years with fine of Rs. 50,000/- (for offence punishable under Section 21(b) of NDPS Act, 1985.
Further, directions were sought to release passport and renewal of Visa.
Contentions of Appellant:
It was submitted that passport has since been renewed but directions need to be issued for renewal of appropriate category of Visa to ensure that the stay of the Appellant was authorized during the pendency of appeal.
Observations of the Court:
It was noticed that in the absence of extension of Visa, a foreign national is likely to be deported on initiation of proceedings under Section 3(2)(c)(e) of the Foreigners Act, 1946 read with Section 11(2) of the Foreigners Order, 1948. The discretionary power of extending the Visa of any foreign national before expiry in case of overstay is exercised by the competent authority considering the reasons for overstay and the same can be regularised in justified cases. With reference to a foreign national against whom one or more cases are pending, the matter is considered by the competent authority under the Foreigners Order, 1948.
The Bench ruled that though the Government has the absolute power to regulate the entry and stay of foreigners, but it is equally well settled that Article 21 of the Constitution of India guarantees the protection of personal liberty of a citizen and foreigner alike. No person can be deprived of personal liberty except according to procedure established by law.
In the present case, the sentence was suspended, and the Appellant was constrained to stay back in India on account of pending appellate proceedings. Hence, the Court ruled that the Appellant should not be deprived of his liberty and hence, appropriate application was directed to be filed for grant of extension of Visa during pendency of appeal.
The Court further advised the Trial Courts to expeditiously deal with the criminal cases involving foreign nationals, in the interest of equity and fair play and to ensure that the liberty is not restricted or curtailed, due to delay in conclusion of trials.
The decision of the Court:
Based on the aforementioned reasons, the application was accordingly allowed.
Case Title: Michal Benson Nwaogu @ Chuna Benson V. State
Case No.: CRL.A.1063/2016
Coram: Hon'ble Mr. Justice Anoop Kumar Mendiratta
Advocate for Appellant: Advs. Mr. Vikas Walia, Ms. Drishti Harpalani and Mr. Yash Bansal
Advocates for Respondent: Advs. Mr. Ajay Vikram Singh, APP with SI Arvind Kumar, PS: Fatehpur Beri. Mr. Kirtiman Singh, CGSC with Mr. Waize Ali Noor and Ms. Vidhi Jain
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