Haroub Slaum Sleyoum vs Shri Abdul Qadir

G.S. Sistani, J.—The petitioner has filed the present bail application u/s 439 of the Cr.P.C. for grant of regular bail. The facts of the case are that the petitioner was intercepted by the Customs Officials on 04.11.2008 at IGI Airport when he allegedly came from Janji Bar, Tanzania by Flight No. ET-604.

According to the petitioner, it is alleged that 42,700 US Dollars equivalent to Rs. 20,38,925/- were recovered from his baggage as a result of his personal search.

Learned counsel for the petitioner submits that the petitioner is a businessman and carries out the import of automobile parts from India. He is a frequent visitor to India and he has been falsely implicated in this case. Petitioner was forced and coerced to sign some blank papers which were filled up later on by the Custom officers and which have now been framed as a so-called voluntary statement u/s 108 of the Customs Act, 1962. It is next contended that there was no intention on the part of the petitioner to conceal the foreign currency but before he could declare the same, he was intercepted by the Custom Officials.

The main thrust of the argument of learned counsel for the petitioner is that the petitioner cannot be kept in jail for an indefinite period merely because he is a foreign national. Learned counsel for the petitioner further submits that the maximum punishment for an offence u/s 135 of the Customs Act is three to five years besides the fact that the offence is compoundable.

In support of her plea, learned counsel for the petitioner has relied upon the case of Vocke Curt Ulrich Vs. Customs, , wherein the currency amounting to 14,500 US Dollars, 3530 Deutsche Marks, 860 Swiss Francs and 380 pounds were recovered from the petitioner, who was a foreign national, and was granted bail by a Single Judge of this Court. Learned counsel for the petitioner further relies in the case of Lambert Kroger Vs. Enforcement Directorate, , a case of foreign national under Sections 56 read with Section 61 of the Foreign Exchange Regulation Act, wherein the Single Judge after considering all the facts had taken a view that there is no law which authorizes or permits discrimination between a foreign national and an Indian national in the matter of granting bail. Counsel has also relied in the case of Starkl Ferdinand vs. State (Customs), reported at 2005 (2) JCC 644, a case again of a foreign national under the NDPS Act wherein the Court while considering the arguments advanced by the parties has held that that merely because the petitioner is a foreigner, it does not necessarily mean that he is to be denied the benefit of bail.

Learned counsel for the petitioner further submits that while granting bail, this Court can always impose conditions on the petitioner, which the petitioner is willing to abide by.

Learned counsel for the respondent has opposed this application on the ground that large amounts of foreign currency were recovered from the petitioner and the manner in which the currency was concealed would show that the petitioner is a habitual offender. Counsel further submits that the petitioner, being a foreign national, there would be no way to ensure the presence of the petitioner is secured and he does not abscond from the country.

I have heard learned counsel for the parties. While considering an application for grant of bail, various factors are to be taken into consideration, such as, the nature and seriousness of the offence, the stage of investigation, a reasonable possibility of the presence of the accused not being secured at the trial, a reasonable apprehension of evidence being tampered with or such other circumstances which may be brought to the notice of the Court which might hamper proper investigation into the matter.

During the course of hearing learned counsel for the respondent has vehemently opposed the application for grant of bail primarily on the ground that the petitioner being a foreign national there is every likelihood of the petitioner leaving the jurisdiction of this Court and there would be no means to secure his presence.

On 04.02.2009, a letter dated 21.01.2009 from the High Commission of the United Republic of Tanzania, duly signed by Ms. Felistas A. Mwalukuasa, was placed on record. The statement of the signatory (Ms. Felistas A. Mwalukuasa), who is stated to be a Minister for the United Republic of Tanzania, was recorded in the Court, wherein she admitted having signed the communication dated 21.01.2009. In support of her identity, she had also produced her Identity Card, which fact finds mention in the earlier order of this Court date 04.02.2009.

The petitioner is in custody since 04.10.2008 for an offence which is neither punishable by death or life imprisonment. The maximum punishment is 3-5 years and the offence is also compoundable. I find force in the submission of learned counsel for the petitioner that merely because the petitioner is a foreign national this by itself cannot be a ground for declining the bail. No special circumstances have been shown to this Court to show that the petitioner is likely to interfere with course of justice nor any material to show that there are strong reasons that the petitioner is likely to leave the country. Accordingly, I have considered it a fit case to grant bail and release the petitioner. However, this Court cannot lose sight of the fact that in many cases where the foreign nationals are involved they are able to leave the country. It is for this reason that the order dated 21.10.2009 was taken on record and the statement of Ms. Felistas A. Mwalukuasa, Minister, United Republic of Tanzania, was taken on record.

Taking into consideration the facts of this case and having heard learned counsel for the petitioner, I consider it a fit case to release the petitioner on bail. The petitioner is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 2.00 lakhs with one local surety of the like amount to the satisfaction of the trial court on the following conditions that:-

(a) the High Commission for the United Republic of Tanzania shall be bound by the communication dated 21.01.2009.

(b) the petitioner will not leave the country without prior permission of the trial court.

(c) no duplicate travel documents shall either be applied for by the petitioner or be granted to the petitioner by the High Commission for the United Republic of Tanzania.

(d) the Customs Officers will continue to hold the passport of the petitioner till further orders.

(e) The petitioner shall not indulge in any activity, which may be prejudicial and not in the interest of the country.

(f) The petitioner shall inform his whereabouts to the Department.

(g) The respondent will inform all the Immigration Offices of the country along with a photograph of the petitioner that the petitioner shall not be allowed to leave the country without obtaining prior permission from the trial court.

With these directions, bail application stands disposed of. Let copy of the order be given dasti under the signatures of the Court Master.