MARTINEZ MONTSANT JOAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE writ petitioner is Spanish National, holding passport No. X 804029. The petitioner came to India on 19-6-2006 via new Delhi on a student visa valid for a period of five years from 19-6-2006 to 18-6-2011 and got his name registered with Foreign registration Officer, Gangtok, Sikkim and obtained a residential permit at Sikkim valid till 30-4-2007. The said permit was however, extended up to 30-4-2008. As the petitioner was residing at Sai kailash Apartments, 7th Floor, Flat No. 701, Puttaparthy, Anantapur district, Andhra Pradesh without informing to the FRO, Anantapur about change of his residence to Puttaparthy from Sikkim and also without extending the residential permit beyond 30-4-2008 and tried to leave India on 1 -6-2009 from Bangalore to Bangkok, on the above circumstances, the petitioner was charged with violation of Rules 11 and 12 of the Registration of Foreigners Rules, 1992, and para 7 of the Foreigners Order, 1948 and also under Section 5 of the Registration of Foreigners Act, 1939 and Section 14 of the Foreigners Act, 1946 and thereafter he was arrested on 4-6-2009 and was sent to judicial custody.

(2.) HENCE, this Writ Petition has been filed seeking direction to the 3rd respondent-Jail Superintendent, Central Prison, chanchalguda, Hyderabaad to release the petitioner by declaring the Rules 11 and 12 of the Registration of Foreigners Rules, 1992 and para 7 of the Foreigners Order, 1949 as illegal, unfair, unjust and without authority of law and unconstitutional being violative of articles 21, 25 and 51 and also in disregard to International Law and in consequence to quash the Crime No. 58 of 2009 pending before the Puttaparti (U) P. S. , Anantapur.

(3.) MR. Anand Kumar Kapoor, learned counsel for the petitioner contended that rules 11 and 12 of the Registration of foreigners Rules, 1992 are unconstitutional as they violate Article 21 of the Constitution of India and also they are in derogation of article 25 of the Constitution of India. Learned counsel submits that as the petitioner came to India to study and practise 'vajrayana Buddhism' and that he was practising the teachings of 'buddhism' taught by his Gurus, therefore, imposition of the limitation of travel on a Foreigner who is holding valid visa is nothing but an archaic and unreasonable restriction on his freedom to travel within India and abroad, and the same is in clear derogation of "declaration of Human Rights of Individuals who are not nationals of the Country in which They Live, 1985, which was adopted by United Nations general Assembly by Resolution 40/144 of 13 December 1985". It is further contended by the learned counsel for the petitioner that the petitioner who is already charged under section 5 of the Registration of Foreigners act, 1939 and the said Act covers the entire gamut and arena with regard to Registration of Foreigners; that by making rule on the same subject of Registration of Foreigner under the Foreigners Act, 1946, the petitioners cannot be double charged for the same alleged offence, as such Section 14 of the Foreigners Act, 1946 cannot be invoked against the petitioner. Learned counsel for the petitioner further contended that as per the remand report, the petitioner submitted a letter to the FRO, Anantapur and that arrest was caused on his request. When the said request is itself pending, the question of committing of the alleged offences, does not arise as the petitioner's application is stated to be dated 2nd June, 2009, whereas the arrest was effected on 4th June, 2009. That by itself, it is submitted, shows that a crime has been registered even before consideration of the request of the petitioner that such an act by itself reflect that the petitioner's right to liberty is being deprived in an unjust and unfair manner, and the procedure followed for such deprivation is clearly unreasonable in the facts and circumstances of the case. It is also contended by the learned counsel for the petitioner that with regard to allegation levelled against the petitioner under the provisions of the Foreigners Act, the maximum punishment prescribed is imprisonment for a period of one year and it is a cognizable offence, therefore police has no authority to invoke the impugned proceedings. It is further contended that right to travel abroad is covered under Article 21 of the Constitution of India, as per Ex. P-1 the petitioner was contemplating to leave india, if that be the case, then not allowing him to leave India by not granting emigration clearance, ipso facto proves that his fundamental right guaranteed under article 21 of the Constitution of India is brazenly violated and the charges emanating on that count are clearly unconstitutional and as such liable to be quashed and the writ petition deserves to be allowed.