Trial court can’t send foreign citizen to detention while granting bail: Delhi HC

The court said that once enlarged on bail, the petitioner cannot be detained without following the due process of law when he is yet to be proved guilty..

A trial court cannot send a foreign citizen to a detention centre at the time of granting him bail as these facilities are not meant for judicial custody but for keeping foreign nationals on the basis of an executive order in terms of the Foreigners Act, 1946, the Delhi high court has said while granting relief to a Nigerian national who had challenged his detention.

The court noted that the petitioner has already been in de facto custody for two years. (File)

“A court, magistrates or a sessions court cannot, as part of enlarging foreign national on bail, 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,” it said.

The petitioner, a Nigerian national, was sent to a detention centreby a magisterial court even while being granted bail in a criminal case under the Delhi Excise Act and the Foreigners Act, in April 2021 considering that his visa had expired.

Subsequently, a sessions’ court directed his release from the detention centre subject to certain conditions. However, the petitioner contended before the high court that he was yet to be released.

Granting him relief, justice Anish Dayal said that once enlarged on bail, the petitioner cannot be detained without following the due process of law when he is yet to be proved guilty.

“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,” said the court.

The court also noted that following the orders passed by the lower courts, the authorities concerned declined his visa multiple times and the Foreigners Regional Registration Officer (FRRO) directed him not to move out of the detention centre.

It said that 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. It directed his release from the detention centre on a personal bond and surety bond of ₹1 lakh each.

Considering that the petitioner has a valid passport, it also directed the central government to consider his application for visa and/or representation for an appropriate order within a period of eight weeks, with “due compliance of principles of natural justice”.

The court said granting such persons a special permit/visa/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 directed the petitioner to furnish a permanent residence address, surrender his passport and report to the local police station once a week. It also asked him to provide the details and mobile number of his wife, an Indian national, to the trial court concerned.