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2020 DIGILAW 708 (GUJ)

Munir Akhtar Satti v. State Of Gujarat

2020-08-24

N.V.ANJARIA, SONIA GOKANI

body2020
ORDER : Sonia Gokani, J. 1. This petition is preferred with the following prayers: - “(A) Your Lordship be pleased to admit and allow the Petition; (B) Your Lordship be pleased to issue a writ of habeas corpus or any other writ in the nature of habeas corpus directing the Respondents to produce Sajjad Burhanuddin (the illegal detainee) and release, and handover to the Pakistan High Commission, in the interest of justice; (C) Your Lordship be pleased to exempt the Petitioner from filing the certified copies of the Annexures, typed copies of some annexures and also notarized affidavit, in view of the pandemic (COVID 19); (D) Your Lordship be pleased to direct the Respondents to grant No Objection Certificate and Exit Visa to the illegal detainee: (E) Your Lordship be pleased to direct the Respondents to pay a compensation of Rs.20,00,000/- (Rupees Twenty Lacs Only); (F) Your Lordship be pleased to pass such further Writ, Order or Directions as may be deemed fit and proper under the peculiar facts and circumstances of the present case, in favour of the Petitioner.” 2. This Court on 14.07.2020 passed the following orders: “1. Keeping the issue of maintainability of this matter open, the following order is passed. 2. Mr. Munir Akhtar Sati, care of Pakistan High Commission, Chanakyapuri, New Delhi, has preferred this petition, taking up the cause of Mr. Sajid Badrudding S/o. Sajid Hussain Vora, Surat, and has urged this Court to issue a writ of habeas corpus. 3. It is lamented by the applicant that the corpus, namely Sajid, who is a Pakistani national, has undergone trial in connection with fake currency notes and was acquitted by the Sessions Court. The matter when traveled to this Court by way of appeal being Criminal Appeal No. 97 of 2019, this Court (Ms. Harsha Devani, Mr. V.B. Mayani, J.J.), on 15.07.2019, dismissed the appeal, upholding the judgment and order of the 2nd Additional Sessions Judge, passed in Sessions Case No. 342 of 2017. 4. The applicant is represented by the learned Advocate, Ms. Shilpi Jain, who is a Counsel for the Pakistan High Commission, along with learned Advocate, Mr. Jeet Bhatt. She has urged that Mr. Sati is an authorized officer of the Pakistani High Commission and she represents the Pakistan High Commission for the past four years. She ENSURES to bring on record the affidavit of Mr. Shilpi Jain, who is a Counsel for the Pakistan High Commission, along with learned Advocate, Mr. Jeet Bhatt. She has urged that Mr. Sati is an authorized officer of the Pakistani High Commission and she represents the Pakistan High Commission for the past four years. She ENSURES to bring on record the affidavit of Mr. Sati, stating, as to in what capacity he is permitted to espouse the cause of the corpus and that he is authorized by the Pakistan High Commission to so do it. Neither from the affidavit nor from any other documents produced with this petition, there appears to be any reference of the same. Let the said basic aspects reflecting the locus of the Petitioner be brought on the record. 5. Learned Advocate, Mr. Om Kotwal, appears for the corpus, who has already preferred an application for joining him as a party in this matter. He also has preferred, before this Court, a separate and independent petition being Special Civil Application No. 7604 of 2020, where, the notice came to be issued by this Court on 22.06.2020. In that matter, State had made a request to prefer SLP against the judgment and order of acquittal and the learned PP, Mr. Amin, also had supported the same. His application shall be posted for hearing on the next adjourned date. 6. Let the learned PP, Mr. Mitesh Amin, and learned Addl. Solicitor General, Mr. Devang Vyas, represent the State and the Center before this Court through Video Conferencing on obtaining necessary instructions from the FRRO Surat Police and other concerned authorities. 7. S.O. to 16TH JULY, 2020.” 3. Thereafter, on 21.07.2020 this Court passed the following order: - “1. On the last occasion, i.e. on 16.07.2020, we had directed that let an affidavit be filed by a Sr. official, well versed with the issue, with an advance copy to the other side. 2. Today, affidavit-in-reply has been filed by one Mr. Pushpak Gandhi, Under Secretary, State Government. The chronology of the events indicate that the proposal for filing appeal before Hon’ble the Apex Court against the decision in the order of this Court was sent from the Office of the Government Pleader, High Court of Gujarat, on 07.10.2019 and the same was received by ‘B’ Branch, Legal Department on 16.10.2019. Pushpak Gandhi, Under Secretary, State Government. The chronology of the events indicate that the proposal for filing appeal before Hon’ble the Apex Court against the decision in the order of this Court was sent from the Office of the Government Pleader, High Court of Gujarat, on 07.10.2019 and the same was received by ‘B’ Branch, Legal Department on 16.10.2019. On 01.11.2019, the opinion with the certified copy of the judgment and papers was received by the B-Branch, Legal Department, from the office of the Government Pleader. On 21.01.2019, a note for decision was prepared and on 29.11.2019, the decision was taken to file appeal in the Supreme Court and the file was sent to the Secretary and RLA. He approved the file on 07.12.2019 and sent for the further approval, which came on 13.12.2019 and the same was received back by the Legal Department on 18.12.2019. On the very day, the Letter of Instructions was written to the learned Advocate on record of the Supreme Court and after the same was received by the Joint Secretary on 18.12.2019 She had asked for the translated copies of the relevant evidence, including the deposition of the witnesses, which could be sent to her in the second week of July, 2020. Thus, it emerges from the said communication as well as affidavit-in-reply that the decision had been taken long back in the month of December, 2020 and the same had been communicated to the advocate on record. However, due to non-supply of the English translation of the relevant material, the appeal could not be filed and the same has been done very recently and the diary number being Diary No. 15168 of 2020 also has been given on 20.07.2020. 3. We have heard the learned Advocate, Ms. Jain, with learned Advocate, Mr. Bhatt, learned Counsel, Mr. Kshitij Amin, and learned PP, Mr. Mitesh Amin, with learned APP, Mr. Mehta. Three days’ time is sought to gather certain details. 4. Learned ASG, on making submissions, has replied to the query that after once ‘No Objection Certificate’ is issued by the Surat Police Commissioner, it will take about one week to prepare exit visa for the corpus. He has also fairly submitted that, bearing in mind the peculiar facts and circumstances of this case, the authority may even decide to waive the same. He has also fairly submitted that, bearing in mind the peculiar facts and circumstances of this case, the authority may even decide to waive the same. However, the same shall be subject to the issuance of No Objection Certificate. 5. According to learned APP, since, the decision has been taken long back to prefer appeal and due to non-availability of the translated copies of the evidence and certain documents, the appeal could not be filed before the Apex Court, early. However, the State Government is now pursuing the matter before the Apex Court and the Diary number also has been given. 6. We had put a specific query to the learned Public Prosecutor, as to whether, the State government has any other objection, in the event of the SLP before the Apex Court does not sail through and he has urged that there being none as on the date, there will be no objection in granting certificate to the corpus in that eventuality. Considering the submissions of both the sides and also overall circumstances as also gathering the details of the possibility of the matter coming up on board before the Apex Court from the learned ASG, this Court deems it appropriate to fix the matter for hearing on 31st JULY, 2020.” 4. The Special Leave Petition (Criminal) Diary No. 15168 of 2020 which was scheduled before the Apex Court on 17.08.2020 culminated into the Apex Court not entertaining the State’s Appeal. The order for the ready reference is as follows: - “Delay Condoned. Special Leave Petition is dismissed. Pending Application stands disposed of.” 5. Today this Court has heard learned advocate Ms. Shipli Jain appearing with learned advocate Mr. Jeet Bhatt for the Petitioners, the Pakistani High Commission, learned Public Prosecutor Mr. Mitesh Amin appearing with learned Additional Public Prosecutor Mr. Manan Mehta for the State, learned Additional Solicitor general, Mr.Devang Vyas, Learned Central Government Standing Counsel, Mr. Kshitij Amin appearing for and on behalf of respondent no.2 and learned advocate Mr. Aum Kotwal for the respondent no.5. 6. It is given to understand by learned Public Prosecutor Mr. Mitesh Amin to the Court that there remains no hitch in issuance of No Objection Certificate (NOC) in wake of dismissal of Appeal which shall be issued by 29.08.2020. This is a telephonic instruction learned APP Mr. Mehta has received from the In-charge SP Mr. B.S.Jadav, Vadodara. 6. It is given to understand by learned Public Prosecutor Mr. Mitesh Amin to the Court that there remains no hitch in issuance of No Objection Certificate (NOC) in wake of dismissal of Appeal which shall be issued by 29.08.2020. This is a telephonic instruction learned APP Mr. Mehta has received from the In-charge SP Mr. B.S.Jadav, Vadodara. According to Mr.Kshitij Amin, Ld. Counsel, once NOC is received, the formal application shall need to be made by the corpus to the FRRO, Mumbai which will be forwarded to the Ministry of Home Affairs and it shall grant Exit Visa within one week. Once he is in possession of the Exit Visa, he can travel by any mode which he may prefer to go to his home country i.e. Pakistan. 7. Noticing the fact that the NOC is to be issued by 29.08.2020, so as to save the time in the process, it is being directed that let a copy of the NOC be sent from the office of the In-charge SP, Vadodara to the office of FRRO, Mumbai directly also. A copy of this also shall be sent to the office of learned Public Prosecutor to enable it to forward it to the FRRO. Once having received the same, the original shall be delivered at the office of Railways at Surat for the Corpus to collect the same,as per the telephonic instructions as may be received from the authority concerned. A copy of which also shall be sent through email on the email IDs of learned advocate Mr. Kotwal and that of the corpus which are as follows: - kotwalassociates@gmail.com burhanuddin.sajjad52@gmail.com 8. Mr. Kshitij Amin, learned Standing Counsel for the Central Government shall also coordinate between the FRRO and Ministry of Home Affairs. He ensures that within one week of receipt of the application from the corpus, the Exit Visa shall be issued. He has validity of his passport up to the year 2025 however, for the overstay, the fees which are otherwise leviable, in wake of the very peculiar facts in the instant case, shall be exempted. This positive gesture of exemption on the part of the Center and its prompt response in issuance of Exit visa in the present matter deserves acknowledgment. 9. This positive gesture of exemption on the part of the Center and its prompt response in issuance of Exit visa in the present matter deserves acknowledgment. 9. The corpus, at this stage, has indicated through his lawyer that he would like to travel from Mumbai via air to Dubai to Pakistan, since for logistic support he is not dependent upon Pakistan High Commission and therefore, once he receives his Exit Visa, he be free to make his own travel plan, for which, no further direction would be necessary. 10. In the event of any difficulty, either the petitioner herein or the learned advocate or the corpus himself shall be free to approach this Court. 11. The petition stands disposed of accordingly.