The Bombay High Court held that it is the State’s duty to ensure that the liberty of foreign nationals in India is protected under the law. On Thursday, the court directed the Customs Department to issue a “no objection certificate” ( NOC ) to facilitate the return of Cong Ling, a Chinese national wrongfully booked in a gold smuggling case, to her home country, while ordering a sum of Rs. 10 Lakhs to be paid to the petitioner.
Intelligence Unit, Customs, CSMI Airport, Mumbai in the presence of pancha witnesses inquired with her whether she was carrying any prohibited goods, contraband or gold in the baggage or on her person.
According to Cong Ling’s petition, filed by Advocate Anand Sachwani, she was arrested at Mumbai International Airport on December 12, 2019, after her flight from Beijing was diverted due to bad weather. Customs officials found 10 gold bars in her luggage, leading to her arrest on gold smuggling charges. She was acquitted by a Magistrate Court on October 10, 2023, after explaining that the gold was intended for conversion into jewellery in China.
After completing the formalities and recording her statement under Section 108 of the Customs Act, 1962, she was booked under Sections 135 (1) (a) and 135 (1) (b) punishable under Section 135 (1) (i) of the Customs Act, 1962 for procurement and smuggling of gold into India. She was arrested and remanded to judicial custody.
Justice Prithviraj Chavan expressed concern over the Customs Department’s harassment of Cong Ling, who was wrongly arrested in 2019. She has been in India since then, leaving her children in China. The court ordered the Union Government to pay her Rs 10 lakh as compensation.
Despite her acquittal, the Customs Department appealed the decision in a Sessions court, which also upheld the acquittal. The Department’s refusal to grant her an exit permit, citing plans to challenge the acquittal in the High Court, prompted further legal action. Justice Chavan condemned the Customs Department for not handling the matter with humanitarian sensitivity, considering Cong Ling’s prolonged stay in India and separation from her children.
The bench observed that, “Our Constitution commands that foreign nationals coming here shall not be discriminated. They will have to be treated equally before the law and their right to live will have to be honoured and protected. They shall not be prosecuted or convicted except for violation of any law in force in India. This is guaranteed under Article 20 of the Constitution.”
The Single Bench Judge reaffirmed that Article 20 of the Constitution guarantees that foreign nationals will not be prosecuted except for violating Indian laws. Article 21 ensures that no person, including foreigners, shall be deprived of life or personal liberty except according to the procedure established by law.
Justice Chavan criticised the Customs Department’s actions as “brazen and perfunctory,” violating the guaranteed rights under Article 21.
The Bombay High Court thus ordered the Customs Department to issue an exit permit within a week and instructed the Union Government to compensate Cong Ling with Rs 10 lakh. Additionally, the compensation amount is to be recovered from the salaries of the officials responsible for her harassment.
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