Case Note & Summary
The petitioner, a Chinese national, arrived in India on a flight from Beijing that was diverted to Mumbai due to bad weather. Upon arrival, customs officials intercepted her and recovered ten gold bars weighing 1 kg each (total 10,000 grams, valued at Rs.3,38,83,200/-) from her baggage. She was arrested and charged under Sections 135(1)(a) and 135(1)(b) of the Customs Act, 1962. The trial court acquitted her on merits on 10th October 2023, observing that the prosecution failed to prove its case beyond reasonable doubt. The Customs Department's appeal against the acquittal was dismissed by the Additional Sessions Judge on 2nd February 2024. Thereafter, the petitioner applied for an exit permit to return to China. The trial court directed the FRRO to issue the permit, but the Customs Department opposed it, claiming they intended to challenge the acquittal. The petitioner then filed a writ petition before the Bombay High Court. The High Court noted that the petitioner had already undergone 59 days of custody and had complied with the condition of furnishing a personal bond under Section 437-A CrPC. The court found the Customs Department's opposition to be an abuse of power and directed the FRRO to issue the exit permit in accordance with law, without any further delay.
Headnote
A) Criminal Law - Acquittal - Exit Permit - Customs Act, 1962, Sections 135(1)(a), 135(1)(b), 132 - The petitioner, a Chinese national, was acquitted of gold smuggling charges by the trial court and the appeal by the Customs Department was dismissed. The Customs Department opposed the issuance of an exit permit solely on the ground that they intended to challenge the acquittal. The High Court held that the opposition was unjustified and directed the FRRO to issue the exit permit in accordance with law. (Paras 1-22)
B) Criminal Procedure - Personal Bond - Section 437-A CrPC - The trial court directed the petitioner to furnish a personal bond under Section 437-A CrPC to appear before a higher court if required. The High Court noted that the petitioner had complied with this condition and there was no impediment to her leaving India. (Paras 8, 22)
Issue of Consideration
Whether the respondent No.2 (Customs Department) can oppose the issuance of an exit permit to the petitioner who has been acquitted of all charges, merely on the ground that they intend to challenge the acquittal.
Final Decision
The High Court allowed the petition and directed respondent No.1 (FRRO) to issue the exit permit to the petitioner in accordance with law, without any further delay.
Law Points
- Acquittal on merits
- Right to travel
- Abuse of power
- Exit permit
- Customs Act
- 1962
- Section 437-A CrPC
Case Details
2024 LawText (BOM) (7) 112
Criminal Writ Petition No. 1234 of 2024
Mr. Sachwani for petitioner, Ms. Anuradha Mane for respondent No.2
Union of India through FRRO and Assistant Commissioner of Customs
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Nature of Litigation
Writ petition seeking direction to FRRO to issue exit permit to the petitioner, a Chinese national acquitted of gold smuggling charges.
Remedy Sought
Direction to respondent No.1 (FRRO) to issue exit permit to the petitioner to travel back to China.
Filing Reason
The Customs Department opposed the issuance of exit permit despite the petitioner's acquittal, on the ground that they intended to challenge the acquittal.
Previous Decisions
Trial court acquitted the petitioner on 10th October 2023; appeal by Customs Department dismissed by Additional Sessions Judge on 2nd February 2024; trial court directed FRRO to issue exit permit on 7th March 2024.
Issues
Whether the Customs Department can oppose the issuance of an exit permit to an acquitted person solely on the ground of intending to challenge the acquittal.
Submissions/Arguments
Petitioner's counsel argued that the petitioner had undergone 59 days of custody, was acquitted, and the appeal was dismissed; the Customs Department's opposition was mala fide and an abuse of power.
Respondent No.2's counsel argued that they were in the process of challenging the acquittal before the High Court.
Ratio Decidendi
An acquitted person cannot be prevented from leaving the country merely because the prosecuting agency intends to challenge the acquittal. Such opposition amounts to an abuse of power and is unjustified.
Judgment Excerpts
This is a pathetic plight of an unfortunate Chinese woman who arrived in India by Air China Airlines Flight No. CA 947 on 12th December, 2019 from Beijing.
The learned Additional Chief Metropolitan Magistrate... acquitted the petitioner of the offence with which she was charged. It was an acquittal on merits.
The only so called reason to oppose Exit Permit to the petitioner by the respondent No.2 is that respondent No.2 is under process of challenging the order passed by the learned Additional Sessions Judge...
Admittedly, till date, respondent No.2 has neither challenged the said judgment dated 2nd February, 2024 nor anything is produced on record to show that, in fact, respondent No.2 intends to challenge the impugned judgment...
Procedural History
The petitioner was arrested on 13th December 2019 and released on 10th February 2020 after 59 days in custody. The trial court acquitted her on 10th October 2023. The Customs Department's appeal was dismissed on 2nd February 2024. The petitioner then applied for an exit permit, which the trial court directed on 7th March 2024. The Customs Department opposed, leading to the present writ petition.
Acts & Sections
- Customs Act, 1962: 108, 132, 135(1)(a), 135(1)(b), 135(1)(i)
- Code of Criminal Procedure, 1973: 248(1), 437-A
