1 wp-885-2011 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 885 OF 2011 Nooria Y. Haveliwala ...Petitioner Versus The Government of India & anr. ...Respondents Mr.Ashwin Thool for petitioner. Ms.M.H.Mhatre, APP for State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. June 17, 2011. P.C. 1. Heard learned counsel for the parties. Perused the Roznama in NDPS Special Case No.90 of 2010. 2. The petitioner impugns the order of restriction dated 12/4/2010 passed by the Foreigners Regional Registration Officer and Deputy 2 wp-885-2011 Commissioner of Police, Special Branch-II, CID, Mumbai in exercise of powers under the Foreigners Orders, 1948 [Para 11(2)]. By the said order the petitioner has been ordered that she shall not move out of the limits of Mumbai City District till the completion of the trial in in NDPS Special Case No.90 of 2010 which arises from C.R.No.22 of 2010 registered with L.T.Marg Police Station. It has been brought to our notice that the petitioner is of Indian origin and her parents are originally from Mumbai though she is born in America and she holds an American passport. She was released on bail by the learned Addl. Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai on 31/3/2010. The operative part of the bail order reads as under: “Accused Miss Nooria Haveliwala be released on furnishing solvent surety of Rs.15,000 (Rs. Fifteen Thousand/-) and P.R. Bond in the like amount, with the condition that, she has to attend concerned police station once in a week on every Sunday in between 4.00 PM to 5.00 PM for interrogation till filing of the charge sheet and she should assist the investigating Agency. She should not tamper with the prosecution witnesses and should not flee 3 wp-885-2011 from India without getting prior permission from this Court, till the conclusion of the trial.” 3. After the case was committed by the learned Addl. Chief Metropolitan Magistrate to the Special Court under NDPS, the petitioner was allowed to execute a fresh PR bond and surety bond on 14/5/2010 and, therefore, she continues to be on bail on the same terms and conditions. Her passport has been submitted to the Special Court. She filed an application at Exhibit 5 before the Special Court seeking permission to undertake overseas journey and the same came to be allowed on 25/3/2011. However, she could not travel abroad on account of the impugned order dated 12/4/2010. 4. The Roznama in NDPS Special Case No.90 of 2010 does not indicate that the petitioner was absent on any date when she was required to be present before the Special Court and after the impugned order was passed on 12/4/2010, she has been released on bail on 14/5/2010 on the same terms. Her record during the last about more than one year does not indicate that she has defaulted in her attendance before the Special Court and she has also been represented by an Advocate before the said Court. 4 wp-885-2011 The petitioner claims that her ancestral properties are located in Alibaug, Dist. Raigad and she is a professional and, therefore, at times she is required to undertake travel beyond the limits of Greater Mumbai. She has been, inter alia, charged under Section 304 of IPC and Sections 184 and 185 of the Motor Vehicles Act, 1988 (driving a motor vehicle under the influence of psychotropic drugs). 5. The impugned order dated 12/4/2010 does not indicate that she was issued any show cause notice while curtailing her right to move around within India and it was submitted by Ms. Mhatre, learned APP that the Foreigners Orders, 1948 does not contemplate any show cause notice before the restriction order is passed. 6. In our opinion the restrictions sought to be imposed by the impugned order are unreasonable as well as arbitrary and more so there is nothing on record to point out that the petitioner is an accused in a serious charge or she is under the radar of Special Investigating Agencies. As her passport has been submitted to the Special Court, she cannot leave India unless permitted by the said Court. It appears that when the impugned order was passed the authority was not sure whether the passport was 5 wp-885-2011 submitted to the Special Court. With the changed circumstances, in our view the impugned order is unreasonable, arbitrary and the restrictions imposed on the movements of the petitioner violate the guarantee provided under Article 21 of the Constitution. In addition her track record in attendance before the trial Court during the last more than one year does not make out a case where such restrictions are warranted, though the police may be justified in ensuring that she is not allowed to drive any automobile, in her life time and so long as she is in India. 7. Hence this petition must succeed and the same is hereby allowed. The impugned order dated 12/4/2010 is quashed and set aside. 8. We make it clear that this order will not prevent the Foreigners Regional Registration Officer and Deputy Commissioner of Police, Special Branch-II, CID, Mumbai to issue a fresh show cause notice to the petitioner and pass a fresh order or restriction, if so warranted. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.) 6 wp-885-2011