Unnecessary victimisation may "reflect in the bilateral relations", the Bombay high court said on Thursday while ordering the authorities to issue exit permit to a Chinese woman who was acquitted in a gold smuggling case yet could not leave India.
Article 21 of the Indian Constitution, which guarantees life and personal liberty, is applicable to foreign nationals too, Justice Prithviraj Chavan said, while also ordering the Union government to pay her Rs 10 lakh in compensation for the agony and trauma she suffered.
Cong Ling, a 38-year-old Chinese national, was arrested at the Mumbai airport in 2019 on charges of smuggling gold worth Rs 3 crore into the country.
She was acquitted in 2023 by the trial court and the ruling was upheld by the sessions court. The court also directed the Immigration Bureau to issue her an exit permit to leave the country.
The permit was, however, not issued as the customs department said it was in the process of filing an appeal against her acquittal.
The woman then moved the high court for relief.
The HC in its judgment said the customs department should have exhibited some "humanitarian approach and sensitivity in light of the fact that every foreign national has fundamental right of liberty as per Article 21."
The conduct of the customs department was "not only wrongful and vindictive but it amounts to gross abuse of its powers in restricting the petitioner to leave for her country without any justification," the judge said.
Ling, who left behind two children when she came to India, should not have been "troubled and harassed by the customs department", the HC said.
"The way and manner in which a foreign national is being treated by the respondent No.2 (customs department) would reflect in the bilateral relations between two countries. This is nothing but victimising the petitioner without any reason," the HC said.
Article 21 is wide enough to cover not only citizens of this country but also foreigners who come to India, and the "State has an obligation to protect the liberty of such foreigners... and ensure that their liberty is not deprived," the court said.
"Our Constitution commands that foreign nationals coming here shall not be discriminated (against). They will have to be treated equally before the law and their right to live will have to be honoured and protected," it added.
As per her petition, Ling arrived in India in December 2019. The flight was to land at the Delhi airport but was diverted to Mumbai due to bad weather.
Ling then decided to clear the Mumbai immigration and take a domestic flight to Delhi. But at the immigration, 10 bars of 24 carat gold, weighing one kg each and valued at Rs 3,38,83,200, were allegedly found in her luggage.
In October 2023, she was acquitted by the trial court which also directed the Foreign Regional Registration Office (FRRO) to issue her exit permit.
The FRRO told the HC that it had no objection, but could not issue the permit in view of the look-out circular issued by the customs. The HC noted in the order that the customs has not filed an appeal against her acquittal yet.
