New Delhi, May 31 The Delhi High Court has said that the trial courts cannot direct foreign nationals be sent to a detention centre while granting them bail in cases lodged against them here.
A bench of Justice Anish Dayal was hearing a plea submitted by a Nigerian man, who was sent to a detention facility by a magistrate's court even while being granted bail in a criminal case brought under the Delhi Excise Act and the Foreigners Act in April 2021 as his visa had expired.
A sessions court then directed his release from the detention facility on the condition that he comply with a number of requirements, but the petitioner argued before the high court that he hadn't yet been released.
Justice Dayal said: "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."
"A Magistrates Court or a Sessions Court cannot, as part of enlarging a 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," he added.
According to information provided to the high court, the relevant authorities repeatedly denied him a visa in accordance with orders issued by lower courts, and the Foreigners Regional Registration Officer (FRRO) directed him not to leave the detention facility.
The court noted the petitioner has already been in de facto custody for two years, when the maximum punishment under the Excise Act may extend to three years and under the Foreigners Act for five years, and directed his release from the detention centre on a personal bond and surety bond of Rs 1 lakh each.
Given that the petitioner's passport is valid, the court directed the Central government to take into account his request for a visa and/or representation for an appropriate order within eight weeks, in accordance with natural justice principles.
The court said that while issuing such individuals a special permit, visa, or travel document would not legitimise the earlier offence of having overstayed in violation of the provisions of the Foreigners Act but would ensure they are not confined in a detention centre at state expense.
The court said: "Restrictions could be made for restricting the possibility of travelling out of India without permission. This would ensure a judicious balance between recognising liberty, and a human right, and ensuring the presence of the foreign nationals for the purpose of trial and being subject to restrictions/regulations/condition."
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