Balwinder Singh vs Union Of India & Anr.
2011 Latest Caselaw 2299 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI


         W.P. (C) 5685/2010 & CM APPL 19825/2010 (for direction)



 BALWINDER SINGH                                        ..... Petitioner
              Through :               Mr. Ajay Kumar Pipaniya, Advocate.

                            versus


 UNION OF INDIA & ANR                                  ..... Respondents
               Through:               Mr. Virender Mehta, Advocate.


  CORAM: JUSTICE S. MURALIDHAR

    1.    Whether Reporters of local papers may be
          allowed to see the order?                            Yes
    2.    To be referred to the Reporter or not?               Yes
    3.    Whether the order should be reported in Digest?      Yes

                              ORDER

29.04.2011

1. The prayer in this writ petition filed on 17th August 2010 is for a

direction to Respondent Nos. 2 and 3, i.e. Foreigner Regional Registration

Offices („FRRO‟) and the Regional Passport Officer („RPO‟), Jalandhar to

release all the documents seized from the Petitioner on 22nd February 2010;

to make arrangements for departure of the Petitioner to Spain and for a

direction to the Respondents to pay compensation for the mental agony and

torture suffered by the Petitioner.

2. The Petitioner holds an Indian passport issued by the Regional Passport

Officer („RPO‟), Jalandhar (Respondent No. 13 herein) on 17th February

2006, valid upto 16th January 2016. The Petitioner was unemployed and

had a desire to work abroad. He applied for a job at Jarona in Spain in

2007. The Petitioner was considered for the post of peon by a company at

Jarona in Spain. He submitted necessary documents with the Embassy of

Spain at New Delhi for issuance of work visa for Jarona in Spain. It is

stated that the documents were verified by the officers of the Embassy at

Spain. The Petitioner‟s credentials were also checked by the police and a

certificate to that effect was issued on 6th July 2007. It was specifically

stated in the said certificate as under:

"There is no adverse information against Shri/Smt/Kum. BALWINDER SINGH S/o, D/o W/o Jit Singh SPOUCE NAME.....HOLDER OF Indian Passport No. F6537221 issued at Jalandhar on 17th Feb 06 which would render him/her ineligible for the grant of travel facilities including visa for SPAIN."

3. The Petitioner received a call from the Embassy of Spain in October

2007 confirming the genuineness of his work permit. He was asked to

produce the medical certification. The Petitioner underwent the medical

test. After completion of all formalities work Visa No. 200700/7041 INE

was issued by the Embassy of Spain at New Delhi on 16th April 2008 for

three months which was further extended to 2011. It is stated that the

Petitioner went to Spain and worked as a peon in a shop at Jarona in Spain.

The Petitioner states that the Petitioner was registered under the Social

Security Scheme in Spain and was also given tax identity number. The

relevant documents in this regard have been enclosed with the petition. On

25th November 2009, the Petitioner returned to India to meet his family

during the vacation. On 21st February 2010, he boarded a flight from Indira

Gandhi International („IGI‟) Airport at New Delhi to return to Spain, with

one stoppage at Brussels Airport at Belgium. While in Brussels, when he

was about to take the connecting flight to Spain, officials of the Jet

Airways, (Respondent No. 4), began questioning the Petitioner in English

and Belgium languages. It is stated that the Petitioner being illiterate could

not answer the queries posed. Although he informed the officials that he

had a valid work permit, he was kept in illegal confinement at Brussels

Airport and was not allowed to fly at Spain. Finally, he was deported to

India on 22nd February 2010.

4. The Petitioner states that on return to India his trauma increased. Instead

of verifying the genuineness of his work permit from the Embassy at Spain

the airport authority in Delhi kept the Petitioner in illegal confinement till

the evening of 22nd February 2010. They took away all the personal

documents of the Petitioner, including his passport, the residential permit,

medical cards, driving licence and bank card etc. Thereafter, the Petitioner

kept approaching the Respondents for return of his documents but in vain.

Thereafter he filed the present petition.

5. This petition was first listed on 20th August 2010 when notice was issued

to the Respondents. The FRRO, Delhi filed a status report dated 24th

September 2010 in which it is stated that the deportation papers issued by

the Belgium Immigration Department („BID‟), Brussels dated 21st February

2010 stated that the Petitioner had been refused entry into Belgium for the

reason that he was an "imposter" who held a "fraudulent" visa and resident

permit. The FRRO stated that on his arrival in India, the Petitioner‟s

passport was seized along with the arrival card, the letter issued by the BID

and these were sent to the Police Station („PS‟), IGI Airport. Thereafter,

FIR No. 119 dated 7th March 2010 under Sections 419/420/468/471 IPC

was registered against the Petitioner at PS IGI Airport. On 10th January

2011, the following order was passed by this Court:

"1. Learned counsel for the Petitioner points out that he was deported on the basis of a report from the Belgian authorities that his Spanish travel document was fabricated. He submits that there was no verification got done by the Respondents of the genuineness of that document by the authorities in Spain.

2. Learned counsel for the Respondent states that he will seek instructions on whether any verification was sought from the authority in Spain on the genuineness of the travel document.

3. List on 9th March, 2011."

6. Thereafter, Respondent No. 2 filed an affidavit on 5 th April 2011

enclosing the following letter dated 21st February 2011 from the Embassy

of Spain:

"New Delhi, 21st February 2011

To,

The Officer Incharge, Foreigners Regional Registration Office, New Delhi.

Reference : No. X/25/2011/1123/For (F-3), dated 11/02/2011.

Dear Madam/Sir,

With reference to the above mentioned query, I inform you that the Spanish residence card X8340054-R corresponds to Balwinder Singh as per the archives of the competent Spanish authorities.

Kind regards, Head of Consular Section

-sd-

Laura Oroz"

7. The affidavit of the FRRO also enclosed a copy of a letter dated 23rd

February 2011 issued by the Embassy of Spain to the Station House Officer

(„SHO‟), PS IGI Airport to the following effect:

"Nueva Delhi, 23rd February 2011

To,

The Officer Incharge, Office of the Station House, PS IGI Airport, New Delhi.

Reference: 1360/R-SHO/PS IGI A, New Delhi, dated, the 22/2/2011.

Dear Madam/Sir,

With reference to the above mentioned query, I inform you that the Spanish residence card X8340054-R corresponds to Balwinder Singh as per archives of the competent Spanish authorites.

Kind regards, Head of Consular Section

-sd-

Laura Oroz"

8. Meanwhile, on 8th March 2011, the following order was passed by the

learned Additional Sessions Judge at Dwarka in the case arising out of the

aforementioned FIR:

"08.3.2011

Present: Applicant in person.

APP for State with IO.

IO has stated that visa and resident permit connected with this case have been found genuine.

APP for State and IO, both have submitted that no case is made out against the applicant. They will make

immediate attempts to get the case cancelled as against the applicant.

Under these circumstances, no merit in the application, and is, dismissed."

9. This was followed by an order of the Additional Chief Metropolitan

Magistrate, Dwarka on 26th March 2011 accepting the cancellation report

filed by the Police. The said order reads as under:

"FIR No. 119/2010 P.S. IGI Airport 26.3.2011

Present: Ld. APP for State.

S.I. Antriksh Alok present.

This is a cancellation report.

Briefly stated allegations are that in the intervening night of 22/23.2.2010, one pax Balwinder Singh arrived as deportee at IGI Airport on the allegation that pax has impersonated and was found in possession of forged residence permit of Spain. FIR was registered. The passport and the residence permit of Spain was got verified which was found to be genuine. Accordingly, no case is made out against the accused.

Heard and perused the record.

In view of the submission made, the present report is accepted as cancelled. Accused stands discharged. Surety of the accused also stands discharged. Documents, if any, be released after cancellation of endorsement.

File be consigned to record room."

10. On 8th April 2011, this Court passed the following order:

"1. The affidavit filed by Respondent No. 2 makes it clear now that there was no basis whatsoever to doubt the veracity of the Petitioner‟s Spanish residence card which led to his being detained in Brussels and thereafter being deported to India. This is clear from the letter dated 21st February 2011 written by the Spanish Embassy to the Officer Incharge, FRRO, New Delhi. A copy thereof has been enclosed with the affidavit.

2. The affidavit filed by Respondent No. 2 is however sketchy and does not explain the circumstances under which such a doubt came to be raised in the first place.

3. Counsel for Respondent No. 2 states that he will file a detailed affidavit giving para-wise reply along with all relevant documents within a period of three weeks and in any event not later than 28th April 2011.

4. List on 29th April 2011."

11. Pursuant to the above order, a further affidavit dated 5th April 2011 has

been filed by the FRRO. This merely reiterates what has been stated earlier.

12. The affidavits of the FRRO and the documents placed on record show

that an inquiry was made by the FRRO from the Spanish Embassy about

the genuineness of the Petitioner‟s travel documents only on 10th January

2011 for the first time. Another reminder appears to have been sent on 11th

February 2011, in response to which the Embassy of Spain, by the letter

dated 21st February 2011 informed that the residence card of the Petitioner

was a genuine document. It is also evident from the letter dated 23 rd

February 2011 of the Embassy of Spain addressed to the SHO, PS IGI

Airport that the letter sent a query in that regard only on 22nd February

2011. In other words, only after notice as issued in the present petition, did

the FRRO and the SHO made the first move to write to the Embassy of

Spain . This was almost a year after the Petitioner was deported to India

and the criminal case instituted against him.

13. Mr. Ajay Kumar Pipaniya, learned counsel appearing for the Petitioner

submits that due to arbitrary action of the Respondents in seizing the

Petitioner‟s passport, instituting a criminal case and not making any

inquiries for over a year, the Petitioner has been subjected to irreversible

hardship and mental agony. Since he was illegally deported to India from

Brussels he could not report for work at Spain. The validity of the

residence permit has also expired in the meanwhile. A false criminal case

was lodged against the Petitioner and was kept pending for over a year. All

this was on account of the failure of the Respondents to take prompt action

to conduct a simple inquiry. It is prayed that the Petitioner should be

awarded exemplary costs.

14. Appearing for the Respondents, Mr. Virender Mehta submits that since

a criminal case had been instituted, no verification was done by the

Respondents with the Embassy of Spain. He submitted that the

Respondents went on the basis of the deportation papers sent by the BID.

15. The conduct of the Respondents in the present case displays utter

callousness in dealing with the life and liberty of the citizen. The Petitioner

had valid travel papers and work permit for employment in Spain. He had

already commenced his employment in Spain. He was returning to Spain to

resume his employment after briefly visiting India during vacations. During

the stop-over of his flight from New Delhi to Spain at Brussels, he was

stopped and subsequently deported to New Delhi on 22nd February 2010.

He was not permitted to travel by the BID, on the ground that he was an

„imposter‟ and that he held a "fraudulent" visa and fraudulent residence

permit. It is now clear that this determination by the BID, which formed the

basis of the Petitioner‟s deportation, was wholly erroneous.

16. What is unfortunate is that when the Petitioner arrived in New Delhi,

pursuant to such deportation no effort was made by the airport immigration

authorities in New Delhi to make any proper inquiry. A copy of the seizure

report of the Indian Immigration Control at the IGI Airport, (which is at

Annexure P-5 to the petition), gives the reasons for seizure of the

Petitioner‟s passport and travel documents as under:

"The residential permit of Spain seems to be doubtful."

17. The affidavits and documents placed on record in this petition by the

FRRO shows that there was no basis for the above „doubt‟ as to

genuineness of the Petitioner‟s residence permit. No attempt was made to

verify this from the Embassy of Spain. Instead, the FRRO straightway sent

the papers to the police and an FIR was registered against the Petitioner

under Sections 419/420/468/471 IPC. The present petition was filed on 17th

August 2010. Notice was issued on 20th August 2010 and accepted by

counsel for the Respondents on that date. Yet till 10th January 2011 no

attempt was made by the FRRO to write to the Embassy of Spain to verify

the genuineness of the Petitioner‟s residence permit. The Police on its part

also made no effort to make inquiries with the Embassy of Spain till 22nd

February 2011. Within ten days of such inquiry, Embassy of Spain

confirmed the genuineness of the Petitioner‟s documents. This then led to

the immediate closure of the criminal case. Had this inquiry been made

soon after the deportation of the Petitioner, the criminal case would have

been unnecessary. He may have been able to immediately return to Spain to

resume his employment. On account of the utter negligence and callousness

on the part of the Respondents, the Petitioner had to needlessly undergo the

trauma of a false criminal case against him for over one year and suffer the

deprivation of his passport and travel documents. He was unable to return

to Spain to resume his employment. The direct consequence of the arbitrary

action of the Respondents has been irreversible loss of employment and

earning of the Petitioner, apart from the mental trauma undergone as a

result of the false criminal case.

18. This Court expresses its displeasure with the manner in which the

Respondents have violated the life and liberty of the Petitioner. There has

been an undoubted violation of the Petitioner‟s fundamental rights under

Article 14 and Article 21 of the Constitution. The Petitioner has needlessly

suffered hardship and trauma due to the arbitrary acts of the Respondents.

In the circumstances, this Court considers it appropriate to direct that

Respondents shall compensate the Petitioner in the sum of Rs. 50,000/-

which will be paid by the Union of India in the Ministry of External Affairs

to him within a period of four weeks from today. The Respondent Union of

India will also pay to the Petitioner litigation expenses of Rs. 5,000/- within

a period of four weeks from today. The Respondents will immediately

return to the Petitioner, if not already done, all the documents seized from

him.

19. It is clarified that it is open to the Petitioner to institute other

appropriate proceedings in accordance with law for recovery of damages

for the loss and hardship suffered by him. The passport of the Petitioner as

stated by him is valid upto 16th January 2016. However, if the Petitioner

requires any re-validation of the passport or new passport, upon his making

application in that regard the needful be done by the RPO, Jalandhar,

Respondent No. 3, expeditiously and in any event not later than four weeks

from the date of making of such application.

20. The writ petition and the pending application are disposed of with the

above directions. A certified copy of this order be sent forthwith to the

Secretary, Ministry of External Affairs and the RPO, Jalandhar for

immediate compliance.

S. MURALIDHAR, J

APRIL 29, 2011 ak