The Bombay High Court recently refused relief to one Partheban Durai, a 41-year-old Malaysian citizen accused of smuggling human embryos into India and mis-declaring them as stem cells to Malaysian authorities.
Justice SS Shinde heard the writ petition filed by Durai, who sought release of his passport impounded by customs authorities and a refund of Rs.30,000 that was taken as surety for bail after his arrest on March 15, 2019.
According to the petitioner, he arrived at Chhatrapati Shivaji Maharaj International Airport, Mumbai from Kuala Lumpur by Malaysian Airlines. After completing formalities at Airport, some officers of Directorate of Revenue Intelligence (DRI) approached the Petitioner and made inquiries. Then, they forcefully confiscated all his personal belongings including passport and, illegally detained him at the Airport for 6 hours. Thereafter, he was taken to the office of DRI where the petitioner was "illegally detained and tortured" with a view to make him confess to "some alleged smuggling of goods into India."
Advocate Nikhil Mengde appeared on behalf of the petitioner and Advocate Rebecca Gonsalves appeared on behalf of the DRI.
Mengde submitted that although the petitioner is not an Indian national, he is still entitled to the basic human rights enshrined in the Constitution under Articles 21 and 22 irrespective of his nationality or citizenship.
DRI has illegally detained the petitioner and forcefully confiscated his belongings including his passport for no reason at all. DRI has illegally retained the passport and violated his fundamental right of personal liberty and the right to travel abroad without informing him the grounds of his arrest or producing the petitioner before a Magistrate, Mengde argued.
DRI's counsel Rebecca Gonsalves argued that the petitioner is involved in smuggling of human embryos into India by mis-declaring the same to the Malaysian Customs authorities as stem cells. She submitted that when the petitioner was intercepted at the airport, a canister was found containing human embryos.
The Petitioner was arrested under Section 104 of the Customs Act, 1962 on the reasonable belief that he had committed an offence under Section 135 of the Customs Act.
The material collected by DRI during the course of investigation, including his mobile, clearly revealed the petitioner's involvement in the offence of smuggling of human embryos from Malaysia to India, Gonsalves said.
Vehemently opposing the petitioner's prayer to return the passport, Gonsalves submitted that once the passport is released and permission is granted to travel abroad, he may misuse the same and not come back.
Importantly, according to the DRI, petitioner's mobile was seized and from his messages it was revealed that he was to deliver the human embryos to the Indo Nippon IVF Clinic in Bandra West, Mumbai, and when the investigation went to the said clinic and taken a search, they found four documents relevant to the investigation. Also, between January 1, 2017 and March 15, 2019, the day of his arrest, petitioner has travelled to India a total of 8 times.
Pointing out that all judgments cited by the petitioner's lawyer were dealing with cases involving Indian citizens and not foreign nationals, Court observed-
"In the peculiar facts of the present case, the prayer of the Petitioner cannot be acceded to since he is involved in smuggling of human embryos into India and the Respondents have seized concrete incriminating material against the Petitioner."
Finally, rejecting the writ petition, Court said-
"The offence in which the Petitioner is alleged to have been involved is a serious one i.e. the smuggling/illegal import of human embryos into Indian from Malaysia by mis-declaring the same to the Malaysian Customs authorities as stem cells. The presence of the Petitioner for adjudication and trial is necessary."
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