Charles Kingsley Okokaso vs State ( Nct. Of Delhi)
2023 Latest Caselaw 1277 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 19th July, 2023

+      CRL.A. 288/2023

       CHARLES KINGSLEY OKOKASO               ..... Appellant
                    Through: Mr. Ashutosh Kaushik, Advocate.

                         versus

       STATE ( NCT. OF DELHI)                                  ..... Respondent
                      Through:               Mr. Ritesh Kumar Bahri, APP for the
                                             State.
                                             SI Hitesh Bhardwaj, PS Crime
                                             Branch.
                                             Ms. Pratima N. Lakra, CGSC with
                                             Ms. Vanya Bajaj and Mr. Satish
                                             Kumar, Advocates for FRRO.
                                             Insp. Satish Kumar, SI George Kutty,
                                             FRRO.

       CORAM:
       HON'BLE MR. JUSTICE AMIT BANSAL

AMIT BANSAL, J. (Oral)

CRL.M.A. 8597/2023 (stay)

1. The present appellant/applicant, a Nigerian national, was convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Section 14 of the Foreigners Act, 1946 by the learned Additional Sessions Judge (ASJ)/Special Judge (NDPS), North District, Rohini Courts, Delhi vide order dated 17th January, 2023 for being in unlawful possession of 31 grams of cocaine and for not having a valid visa

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

on the date of apprehension. The applicant was sentenced for the period already undergone, which was more than 7 years, vide order on sentence dated 8th February, 2023.

2. The applicant had been in judicial custody since 26th August, 2015 and completed his sentence on 8th April, 2023. As per the Status Report filed by the Foreigners Regional Registration Office (FRRO) dated 18th July, 2023, he was kept in a detention centre immediately after completion of his sentence.

3. The counsel for the applicant submits that despite having completed his sentence, the applicant is being kept in a detention centre. He submits that the present detention is unlawful.

4. The counsel for the applicant further submits that the applicant is legally married to an Indian national and out of the said wedlock, the applicant has two children, both being Indian nationals. The applicant also owns immoveable properties in India along with his wife.

5. This Court vide order dated 29th May, 2023, had issued notice to the FRRO to ascertain the status of the visa extension application of the applicant.

6. As per the Status Report filed by the FRRO on 18th July, 2023, the Indian visa of the applicant expired on 30th June, 2015 and since then, the applicant has illegally overstayed in India. The applicant had applied for extension of visa with the FRRO on 18th July, 2023. However, the requisite documents have not been uploaded.

7. The learned APP appearing on behalf of the State submits that the applicant has been involved in other criminal cases as well. As per the Status Report filed by the respondent State dated 17th July, 2023, the Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

applicant has been found involved in the following four criminal cases:

"a) FIR No. 286/2000 u/s 20-61/85 NDPS Act PS Sadar Bilaspur- Convicted on 05.09.2001 for 10 years.

b) FIR No. 65/2004 u/s 420/467/468/471 IPC PS Gharinda, Amritsar- Consigned after proceeding u/s 299 Cr.P.C.

c) FIR No. 61/2006 u/s 21 NDPS Act & 15 Foreigners Act PS Narcotics, Crime & Railway - Declared PO on 26.03.2010. Information regarding PO has been shared with Narcotics Branch vide DD NO.0218A dt 17.07.2023.

d) FIR No. 761/2014 u/s 376 IPC & 8 POCSO Act PS Hazrat Nizamuddin, SE District, Delhi - Efforts were made to trace the status of this case. However, from the records of the Court, it could be only found that the case was pending trial in the Court of Ld. ASJ Ms. Renu Bhatnagar on 27.03.2015. Further status of the file could not be traced in the Court."

8. The learned APP states that in the event the presence of the applicant is not required in cases 'b)', 'c)' and 'd)' above, he has no objection to the applicant's release from the detention centre.

9. I have heard the counsels for the parties and perused the record.

10. In Ana Parveen v. Union of India, W.P. (Criminal) No.43/2022, the Supreme Court vide order dated 29th April, 2022, while dealing with a case of a foreign national who had completed his sentence but was being kept in a detention centre, released the foreigner by observing that detention is not consistent with Article 21 of the Constitution of India. The relevant observations of the Supreme Court are set out below:

"11. In this backdrop, we are of the view that it would be appropriate if the Foreigners' Division of the Union Ministry of Home Affairs takes a final decision on the representation for the grant of a visa/ long term visa having regard to all the facts and

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

circumstances of the case and after assessing the inputs from the security angle. They shall do so independent of the communication which has been addressed by the SSP, Meerut, noted above.

12. At the same time, we are of the view that keeping the detenue, Mohd Qamar in detention would not be consistent with the mandate of Article 21 of the Constitution.

13. In the facts of the present case and since no security threat or adverse impact bearing on national security has been placed on the record, we are of the view that the detenue, Mohd Qamar should be released on furnishing a personal bond of Rs 5,000 with two sureties of Indian citizens in the like amount. The detenue shall furnish the address of his place of permanent residence in Meerut where he proposes to reside, to the SHO of the police station concerned and report to the local police station on the seventh day of every month pending further orders."

(Emphasis Supplied)

11. The judgment in Ana Parveen (supra) was followed in Emechere Maduabuchkwu v. State NCT of Delhi & Anr., W.P.(CRL) 550/2022, wherein a Co-ordinate Bench of this Court vide order dated 26th May, 2023, held that once a foreign national is released on bail, he cannot be kept in a detention centre. Relevant observations of the said judgment are set out below:

"32. In any event what must be clarified is that a Court or Magistrates or a Sessions Court cannot as part of enlarging foreign national on bail can also direct the said person to be sent to a detention centre. The Court is not competent to pass such a direction when granting bail as has been conclusively held in various decisions. Detention centres are not for judicial custody but a place where a foreign national is detained on an executive order and is the prerogative of the competent authority under the Foreigners Act.

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

33. Therefore, what the Ld. ASJ directed by order dated 25th June, 2021 was apposite, by allowing the bail application and admitting him on bail by releasing him from Detention Centre subject to furnishing a personal bond and surety bond of Rs. 01 Lac. Despite that the petitioner was not released on account of the intransigent stand taken by the FRRO in not granting him a visa or permit and issuing the impugned order. This denial was in the teeth of a judicial order of Ld. ASJ, which is not merited considering there was no challenge to the said order by the State. The petitioner once being enlarged on bail cannot be detained without due process of law. The fact that he is facing trial for offences under the Excise Act and the Foreigners Act cannot be held against him, considering he still is to be proved guilty post trial. Right now, is the issue of his freedom.

34. ......There is no reason why the FRRO cannot consider other possibilities under these provisions i.e. requiring him to be at a particular place (not necessarily a detention centre), imposing restrictions on his movements (like restricting him to an area), regulating his conduct and association with persons; reporting requirements to an authority. There is a vast menu of options available for the FRRO to apply, which may be more in consonance with rights under Article 21, than a summary, plain vanilla order of continuing in the detention centre. Also, there is no reason, as has been observed by the Hon'ble Supreme Court, to not consider grant of a special visa/stay permit to the petitioner, which recognizes that he is an undertrial of an overstay offence and has to continue in this country for the purpose of trial or otherwise, in case that is not required, choose to deport him."

12. In Bathlomew Lkechukwu @ Charles v. Union of India, W.P. (Crl.) 2146/2019, a Co-ordinate Bench of this Court vide order dated 30th January, 2020, while dealing with a foreign national who was being kept in a detention centre, despite having been acquitted of the charges, observed that the foreigner could not be kept in a detention centre indefinitely. The

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

relevant observations of the Court are set out below:

"3. Plainly, the petitioner cannot be detained indefinitely. Even if it is found that the petitioner's presence is required in India on account of the appeal filed by NCB, an appropriate visa is required to be issued to him.

4. The petitioner has been in the said deportation camp since 03.12.2018. The petitioner is either required to be issued a visa or is required to be deported. In any event, he cannot remain in a deportation camp indefinitely."

(Emphasis Supplied)

13. In light of the aforesaid judgments, once the applicant has been released from prison after having undergone his sentence, he cannot be kept in a detention centre. Continuing to hold the applicant in a detention centre would amount to violation of his rights under Article 21 of the Constitution of India. The applicant cannot be detained in a detention centre indefinitely.

14. Taking into account that the applicant may be wanted in other criminal cases in India and having regard to the other facts and circumstances, the FRRO shall take a decision with regard to the visa application of the applicant.

15. It is directed that the applicant be forthwith released from the detention centre. At the time of his release, the applicant shall furnish his permanent address and mobile number(s) to the FRRO.

16. In the event that the respondent State requires to take into custody the present applicant on account of the cases mentioned in the Status Report dated 17th July, 2023, the same shall be done in accordance with law.

17. The application stands disposed of.

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023

AMIT BANSAL, J.

JULY 19, 2023/at

Signature Not Verified Digitally Signed By:AMIT BANSAL Signing Date:21.07.2023