Bom HC | Passport of Malaysian National confiscated in light of alleged smuggling of human embryos to India from Malaysia

Bombay High Court: S.S. Shinde, J. while deciding on a petition concerning the smuggling of human embryos from Malaysia to India, denied the Malaysian national of his passport fro the alleged act of smuggling.

The facts of the present case are that, the petitioner is a Malaysian National who was subjected to the inquiry at the airport by some officers of respondent 1.

Petitioner’s counsel Advocate Nikhil Mengde submitted that respondent 1 had forcefully confiscated petitioner’s personal belongings which included his passport and illegally detained him at the airport for 6 hours, after which the petitioner was taken to the office of respondent 1 where he was forced to confess to some alleged smuggling of goods to India. He further submits that petitioner was forcefully made to sign several documents and was released by respondent 1 on an alleged bail for which Rs 30,000 was collected from him.

It has also been submitted on behalf of the petitioner that his passport was illegally retained and not returned after several requests. He adds that it is a violation of the fundamental rights available to the petitioner under Article 21 of the Constitution of India. Therefore, the present petition has been filed.

Learned counsel submits that in accordance with the provisions of the Customs Act and the Foreigners Act there is no provision under the Customs Act or CrPC which authorizes the Respondents to impound the passport.

Counsel representing Respondent, 1, Rebecca Gonsalves submitted that the petitioner was involved in smuggling of human embryos into India by mis-declaring the same to Malaysian Customs authorities as stem cells. It was found at the airport during the interception, that petitioner was carrying a canister containing human embryos. 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.

Material collected by Respondent 1 during the course of the investigation, including his mobile, clearly revealed the involvement of Petitioner in the offence of smuggling of human embryos from Malaysia to India. Once the passport is released and permission is granted to the Petitioner to go abroad, he may misuse the same and will not come back.

High Court while concluding, noted that respondent 1 during the course of investigation had seized petitioner’s mobile and it was revealed from the messages on his mobile that the petitioner was to deliver the human embryos to the Indo Nippon IVF Clinic, Bandra (W), Mumbai and when the investigation went to the said clinic and taken a search they found four documents relevant to the investigation. Thereafter at the relevant time, the Petitioner voluntarily and willingly surrendered his Malaysian passport bearing A37044226 to the DRI.

Therefore, the Court held that once the passport is returned to the petitioner he may leave India which will make the trial and adjudication in the present case difficult. In view of the seriousness of the allegation, presence of the petitioner for adjudication is necessary, hence writ petition stands rejected on the said basis. [Partheban A. L. Durai v. Directorate of Revenue Intelligence, Mumbai; 2019 SCC OnLine Bom 1546; decided on 09-08-2019]

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