Foreign national held for smuggling foreign currency granted permission to visit native place: The High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV. P. 137 2021 Pronounced on : 11.06.2021 CHEN HSUI YUN Through: Mr. Priyanshu Upadhayay and Mr Amit Kumar Attri Advocates DIRECTORATE OF REVENUE INTELLIGENCE Through: Mr. Satish Aggarwal Sr.SPP with Mr. Gagan Vaswani Advocate HON BLE MR. JUSTICE RAJNISH BHATNAGAR RAJNISH BHATNAGAR J By virtue of this petition filed under Section 397 read with Section 482 Cr.P.C the petitioner is seeking setting aside of the order dated 10.2.2021 passed by Ld. Principal District and Sessions Judge New Delhi in Criminal Revision Petition 09 2021 It is alleged that on the basis of some specific information five passengers namely Chen Po Shuo Wang Wei Ting Liao Kuan Hua Ms Chen Hsui Yun and Ms. Chan Kai Li holder of Republic of Chinavalued at Rs.3 25 51 040 It is further submitted in the reply that imposition of penalty on all the five accused persons including the petitioner herein has also been proposed and the said show cause notice is pending adjudication. It is further submitted in the reply that Sanction and Authorization for launching of prosecution has been granted vide order of the competent authority dated 28.5.2021 submitted that in any event if the order of learned CMM is upheld and the petitioner is allowed to travel abroad the petitioner may be directed to deposit in cash or FDR for an amount at least 50% of the foreign currency in INR recovered from the petitioner. It is further submitted that an amount of Rs.90000 USD was recovered from the checked in baggage of It is further submitted that petitioner has committed an offence punishable under Section 135 of the Customs Act 1962 It is denied that right under Article 21 of Constitution of India. It is further submitted in the reply that petitioner is a foreign national and is a part of conspiracy and if she is allowed to go abroad there are no chances of her returning and facing trial I have heard counsel for the petitioner and Mr. Satish Aggarwala Sr SPP for the Department It is submitted by learned counsel for the petitioner that petitioner is a mere carrier and tried to smuggle foreign currency inadvertently. He further submitted that petitioner has remained in India for about one year and six months and petitioner being a lady aged about 54 years is facing extreme CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified hardship in living in Delhi It is further submitted that petitioner is a lady aged about 54 years and her husband who is aged about 64 years is suffering from various old aged ailments and requires regular check up and care. It is further submitted by learned counsel for the petitioner that there is no one to take care of the family of the petitioner. He submitted that the sister of the petitioner has met with an accident and is in serious condition in It is submitted that learned CMM on the basis of considering the medical report and photographs which were filed by the petitioner along with the application granted permission to the petitioner to go abroad. It is further submitted by learned counsel for the petitioner that petitioner may be allowed to visit her home for some period and subject to conditions further submitted that petitioner would not misuse the liberty to go to her country if granted by this Court and would appear in Court to face the trial It is further submitted by the counsel for the petitioner that respondent is not averse to the petitioner going abroad but subject to deposit 50% of the amount of recovered foreign currency from the petitioner which is onerous It is further submitted that there are no allegations that the petitioner is a Learned Sr. SPP appearing for the respondent has argued on the lines of the reply filed by the Department In the reply it is submitted by the respondent that in the event petitioner is allowed to travel abroad then the petitioner may be directed to deposit at least 50% of the foreign currency in the form of cash or in the form of an FDR with this Court CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified 8 In the instant case petitioner is a lady and is living in India for more than one and a half year I have perused the order passed by learned Metropolitan Magistrate dated 08.06.2020 order dated 18.12.2020 passed by learned Chief Metropolitan Magistrate and the impugned order dated 10.02.2021 passed by learned Principal District and Sessions Judge It has been vehemently argued by learned counsel for the petitioner that sister of the petitioner has met with an accident and learned Metropolitan Magistrate granted permission to go aboard on the basis of those documents. There is no serious challenge to the medical grounds made by the petitioner in the application which was filed before the Chief Metropolitan Magistrate on the basis of which petitioner was allowed to travel abroad. In the reply filed by the respondent it appears that respondent is not averse to the foreign travel of the petitioner if the petitioner is directed to deposit 50% of the amount recovered from her in the form of Indian currency In the instant case according to the respondent amount of USD 90000 was recovered from the petitioner which was around Rs.65 00 000 in Indian currency petitioner in the instant case is a lady aged about 54 years and there is nothing on record to show that she has previously involved in these types of activities. The condition to deposit 50% of the recovered amount to my opinion would be quite onerous Therefore in my opinion justice would be met if the petitioner in the facts and circumstances discussed herein above is allowed to travel abroad to her country i.e. Taiwan period of six months i.e. from CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified 12.06.2021 to 11.12.2021 on deposit of amount of Rs.15 00 000 lakhs in the form of an FDR in the name of Registrar General of this Court and also subject to the following conditions Petitioner at the time of depositing FDR shall also furnish an undertaking to report back in the Court on 08.12.2021 failing which the amount of FDR shall stand forfeited without giving any further notice Petitioner shall furnish her address during her stay aboard Petitioner shall not seek extension of her stay abroad on any ground including medical grounds Petitioner shall authorize her counsel to receive notice on her behalf during her stay abroad During the stay of the petitioner abroad no adjournment shall be sought by her counsel for lack of instructions from her Petitioner shall surrender back her passport on her return from Petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any custom authorities or tamper with the evidence Petitioner shall not indulge or commit such like offence(s again similar to the offence to which she is accused now The revision petition stands disposed of in the aforesaid terms JUNE 11 2021 RAJNISH BHATNAGAR J CRL.REV. P. 137 2021 Digitally Signed By:KAMALKANT MENDIRATTASigning Date:11.06.202120:19Signature Not Verified 

Summary: Lady aged 54, caught in currency smuggling case allowed by the Delhi High Court to visit her native place keeping in view several factors including age, medical conditions and family requirements, on deposit of a certain amount and promise to return unconditionally after 6 months duration. The aforementioned was the act of courtesy displayed by the Delhi High Court in the case of Chen Hsui Yun v. Directorate of Revenue Intelligence [CRL.REV. P. 137/2021] by the single judge bench comprising Justice Rajnish Bhatnagar on 11th June 2021. The facts of the case are as follows. It was alleged in a secret information received that five passengers of Chinese origin who were travelling to Hong Kong from IGI Airport, New Delhi would be carrying huge amount of huge quantity of foreign currency on their persons or in hand baggage or in their checked-in-baggage, and would attempt to smuggle out the same. It is alleged that the respondent officers reached at T-3 IGI Airport and intercepted the above mentioned 5 passengers at Boarding Gate No. 15. It is alleged that their checked-in-baggage was searched and a total of USD 4,49,600 equivalent to Indian Rs.3,25,51,040 was recovered. It was alleged that the petitioner was found in possession of foreign currency equivalent to Rs.65,00,000/- in her check-in-baggage. This was followed by the petitioner being granted bail by the CMM Patiala House Courts. In another application, petitioner sought release of her passport which was initially granted by the CMM Patiala House by was later revoked by the learned District and Sessions Judge, PHC, New Delhi, and vide order dated 10.7.2020 about which the petitioner remained unaware. It is further averred that the petitioner, thereafter, filed an application seeking permission to go abroad to her native country for a period of six months as the petitioner is a foreign national, and is facing immense financial hardship learned CMM, PHC, in view of the facts and circumstances of the case, allowed the petitioner to visit abroad for a period of six months on certain conditions. The said order of learned CMM was challenged by the Department-respondent before the District and Sessions Judge, Delhi and was set aside.  In the reply, it was contended by the counsel for respondent that there is no infirmity or illegality in the impugned order and that petitioner is a foreigner so she has no interest in India and in case the petitioner is allowed to go abroad she would not return India to face trial. It was further submitted that in any event, if the order of learned CMM is upheld and the petitioner is allowed to travel abroad, the petitioner may be directed to deposit in cash or FDR for an amount at least 50% of the foreign currency in INR recovered from the petitioner. The counsel further denied that the right to travel is inbuilt fundamental right under Article 21 of the Constitution of India. On the other handed it was submitted by the counsel for petitioner that petitioner is a lady aged about 54 years and her husband, who is aged about 64 years, is suffering from various old aged ailments and requires regular check up and care. He submitted that the sister of the petitioner has met with an accident and is in serious condition in the hospital. It is further submitted by the counsel for the petitioner that respondent is not averse to the petitioner going abroad but subject to deposit 50% of the amount of recovered foreign currency from the petitioner, which is onerous.