"Court can't send foreign national to detention centre while granting bail": Delhi High Court

  • Puneet Deshwal
  • 04:59 PM, 02 Jun 2023

Read Time: 06 minutes


Court observed that detention centres are not for judicial custody but a place where a foreign national is detained on an executive order.

The Delhi High Court recently directed release of a Nigerian citizen who was retained in a detention centre despite grant of bail by the Additional Sessions Judge (ASJ). 

“In the interest of justice….. the directions passed by the Ld. ASJ are reiterated and endorsed, and the petitioner be released from the detention centre on satisfaction that he has furnished personal bond and surety bond in the sum of Rs. 1 lac each,” ordered a single judge bench of Justice Anish Dayal.

As per the case of the prosecution, a police team in April 2021 received secret information that the petitioner was running an African Kitchen in the national capital where some suspicious people used to come, drink liquor and create nuisance. 

On checking, sealed beer bottles were found and an FIR was registered under various sections of the Delhi Excise Act, 2009 and Section 14 of the Foreigners Act, 1946 at PS Nihal Vihar, New Delhi.

The petitioner, who was residing with his wife in Delhi after marrying one Rinkoo Tripathi in 2015, was arrested by the Police.

In June 2021, the ASJ at Tis Hazari Court allowed him bail subject to furnishing a personal bond and surety bond of Rs. 1 Lac. The petitioner furnished the surety of the respective amounts but was not released from the detention centre.

The high court said that it would be improper to retain a foreign national in a detention centre despite a clear judicial order of bail. “On being enlarged on bail, the petitioner would still be in constructive custody of the court,” it observed.  

It said that the Magistrates or a Sessions Court are not competent to direct a person to be sent to a detention centre when granting bail to a foreign national. It observed that detention centres are not for judicial custody but a place where a foreign national is detained on an executive order.

In its order, the court noted that the petitioner had already spent 2 years in confinement in detention centre when the offences under the Excise Act stipulated a maximum sentence of 3 years. Also, under the Foreigners Act offence, he may at the maximum be sentenced for 5 years, court noted.

Quashing the impugned order passed by the Foreigners Regional Registration Officer (FRRO) restricting the movements of the foreign national until his travel arrangements were made, the high court took account of the fact that the petitioner had a valid passport having been extended by the Nigerian Embassy. It directed FRRO to consider the petitioner's application for visa afresh within a period of 8 weeks.

Further, it directed that a copy of its order be sent to the Jail Superintendent for compliance and the FRRO Detention Centre for intimation to the foreign national.

Case Title: Emechere Maduabuchkwu v. State NCT of Delhi & Anr.