M.L. Jain, J.
(1) One Mukand Lal Khanna, an Afghan national along with some others was arrested on 3-9-1980 for violations of Foreign Exchange Regulation Act, 1973 (FERA) involving several millions of money. The Enforcement Officer produced him before the Magistrate for remand to judicial custody, while Mukund Lal Khanna applied for bail. The Addl. Chief Metropolitan Magistrate by his order of 23-9-1980 granted him bail on furnishing bail bonds in the amount of Rs. 1 lakh. Further conditions of bail were that his passport shall be retained by the department and that he shall not leave Delhi for next two months and will report to the Directorate of Enforcement, daily for 15 days.
(2) Mukand Lal then made an application for permission to leave India for a period of three months. The learned Additional Chief Metropolitan Magistrate by his order dated 3-4-1981 allowed him to go abroad on the following conditions, name (1) he will furnish a bank guarantee or deposit of Rs. 1 lakh in the court, (2) he will also surrender the passport of his wife and Other family members, (3) he will appear in the court on or before 15th July, 1981, and (4) he will also furnish his residential as well as official/business address in Afghanistan.
(3) The Directorate filed a revision against the said order of 3-4-1981. On 27-5-1981 the petitioner filed an affidavit that 'I surrender my passport wherein my only son is included, of my own accord and free will as a guarantee for the return and appearance in the court of my husband and that I shall not ask for the return of that passport until my husband return to India in compliance with the order of this court or any other court.' The Addl. Sessions Judge dismissed the revision on 30-5-1981. While upholding the order of 3-4-1981 she added a few more conditions that Mukand Lal will intimate the date on which he will leave India and undertake to return at the expiry of the three month from the date on which he will leave India and appear in court on the expiry of the period and surrender his passport. But the period for which the accused was allowed to go abroad expired and he made a fresh application on 9-3-1982. By an order dated 16-4-1982 the Addl. Chief Metropolitan Magistrate allowed the accused to go abroad on the terms and conditions set out in his order of 3-4-1981 and in the order of 30-5-1981 of the Additional Sessions Judge. The Directorate of Enforcement preferred a revision against the said order of 16-4-1982 before the Additional Sessions Judge, which was disposed of by an order of 28-4-1982. In this order of 28-4-1982, the Additional Sessions Judge noted that the petitioner has furnished the Bank guarantee of Rs. 1 lakh, furnished his addresses and surrendered the passport of his wife and son. She directed that he will authorise a counsel to represent him in the adjudication proceedings and that he will inform the possible date of his departure. He will return to India on the expiry of three months and surrender his passport in the court. The passport that was surrendered by the wife in the manner aforesaid in the court of the Metropolitan Magistrate. A passport was issued to her in 1979 by the Afghan Government which expired on 19-12-1979, but it was later on extended up to 1-1-1981. Their son was of the age of 14 years in the year 1979. Mukand Lal Khanna satisfied the other conditions as well and went to Kabul and has not returned.
(4) A complaint against him was filed on 1-5-1982 under Section 56 read with Sections 9 and 61 of the Fera and Section 120-B Indian Penal Code .
(5) His wife, petitioner Savitri Khanna applied for the return of her passport to the Additional Sessions Judge, New Delhi. She stated that her husband in Afghanistan was called to join compulsory military training. There is no one to look after his business and the personal appearance of the accused has already been dispensed with. She has to go to Afghanistan to look after the business. The learned Additional Sessions Judge by an order dated 7-2-1983 declined the request.
(6) She applied again on 21-2-1983 for return of the passport to the Addl. Chief Metropolitan Magistrate, who by order dated 11-4-1983 dismissed that application. She applied again on 4-5-1983. Before any order could be passed on that application she moved the present petition on 17-5-1983 under Section 482. Criminal Procedure Code . against the orders of 28-4-1982 and 11-4-1983. This petition is opposed by the Directorate of Enforcement.
(7) I have heard the learned counsel.
(8) The first contention of Ms. Usha Kumar is that the bail order of 23-9-1980 itself is illegal in view of the Division Bench decision of this Court in DalamChand Baid v. Union of India and others : 21(1982)DLT144 , wherein it was held that there is no provision in Fera allowing remand of a person accused of an offence under it, nor does it indicate what the Magistrate has to do after the accused person was produced before him. The provisions of Section 167(2). Criminal Procedure Code . do not apply to an arrest made under Fera and the Magistrate before whom such an accused is produced cannot remand him to judicial custody or other custody. Section 309 Criminal Procedure Code . was also not available because that section can be invoked by the Magistrate only after he had taken cognizance of an offence. Ms. Kumar, thereforee, urged that when Mukand Lal Khanna was produced before the Magistrate after 24 hours, the Magistrate could not have remanded him to custody nor had he any power to ask or refuse or accept any bail from him. The only order the Magistrate could have passed was to let him off. If the bail order goes, there go with it the types of conditions imposed on the accused or his wife and son. The retention of the passport has ceased to be legal and the Magistrate must be directed to return the same.
(9) Mr. Watel, on the other hand, contended that the accused has been on bail for three years and more and cannot challenge the bail order having secured his freedom on its basis. At any rate, his wife, the present petitioner, has no locus standi to challenge the bail order. That apart, Mukand Lal Khanna was able to leave this country on the assurance that his wife will remain here and will not be able to go until he returned to stand the trial. She surrendered her passport in order to enable her husband to leave this country. She cannot now turn round and say that the bail order and consequently the condition of deposit of her passport was illegal. To permit her to do so, would be to permit her to practice fraud on the court. A learned Single Judge of this court in U.B. Singh v. Directorate of Enforcement, Cr. M. (M) 400/81, decided 2-9-1981 after referring to State of Maharashtra v. Nainmal Punjaji Shah and another (1970) 3 Cri. AR 59, and Romesh Chandra Mehta v. State of West Bengal, : 1970CriLJ863 , observed that Romesh Chandra Mehta (supra) has no application in the case and in Nainmal Punjaji Shah (Supra) the Supreme Court itself allowed the custody for a period up to six months. The learned Judge was unable to see why the provisions of Section 167 Criminal Procedure Code . would not be applicable. But this view was overruled in Dalam Chand (Supra) Mr. Watel urged that Dalam Chand (Supra) was a case dealing with a habeas corpus petition and had nothing to do with the question of bail. He also referred to a decision of the Gujarat High Court in N.H. Dave v. Mohmad Akhtar Hussain lbrahim, Spl. Cr. application No. 585 of 1982, decided on 20-8-1982, wherein the proposition pounded in Dalam Chand Baid (Supra) was seriously doubted. Referring to Section 4(2) read with Sections 436 and 437 of the Code the Gujarat High Court laid down that the code is applicable mutates mutants to proceedings in relation to offences other than offences under the Indian Penal Code The learned Judges observed that in Dalam Chand (supra) all dimensions of the matter were not brought to the notice of the High Court of Delhi as would appear from the discussion made in the judgment. Mr. Watel, thereforee, maintained that the bail order cannot be questioned.
(10) I have considered this aspect of the case and even though it appears to me that in view of Sections 4(2) and 5 of the Criminal Procedure Code ., Section 167 can be availed of by the Magistrate, yet being bound by Dalam Chand (Supra) I hold that there was no jurisdiction in the Magistrate to demand bail from the accused or to remand him to custody of any type in case of his refusal to ask for or furnish bail if so directed. If the order of bail itself was illegal, then any conditions impose I upon the accrued for going abroad, such as the surrender of his wife's passport, etc. will automatically fall to the ground. Return of the wife's passport has been refused and she has a right to contend that she surrendered her passport under the misapprehension of law. She is very much concerned and it is not possible to ignore her challenge. It makes no difference that Dalam Chand (supra) was dealing with a habeas corpus petition as long as it has laid down the law on the applicability of Section 167 Criminal Procedure Code . to arrests under FERA.. To seek shelter of law is by no means practice of fraud on the court. I, thereforee, uphold the contention of the learned counsel for the petitioner in this regard.
(11) It was next contended by the learned counsel for the petitioner that the petitioner was not an accused person and she could not be asked to part with her passport. Mr. Watel in reply refers to Hazarilal Gupta v.Rameshwar Prasad and another, : 1972CriLJ298 . In that case it was stated that the provisions regarding bail are not exhaustive of the powers of the court in regard to terms and conditions of bail. These terms and conditions do not fetter the inherent powers of the High Court while granting bail under such power. The High Court while granting bail under Section 561A (482 new) to an accused residing in a foreign country can restrict his departure from India by requiring him to surrender his passport. One has to draw some distinction here because the Supreme Court was dealing with a direction by the High Court to the accused to surrender his passport, while I am called upon the deal with a person not accused of any offence, but directed to surrender her passport and that too by a court below the High Court. This case is, thereforee, of no assistance to Mr. Watel. He, thereforee, relied upon an order made by a Division Bench of this Court in C.W. 118 and Cm 225 of 1983, dated 20-1-1983, in which the accused was allowed to leave India on the following conditions:
'Petitioner will cause the current passport of his wife and his child to be deposited with the Registrar of this court along with an undertaking on affidavit by his wife to this court that in case the petitioner does not return to India on or about March 2, 1983 and does not appear before the Enforcement Officer on March 7, 1983, the petitioner's wife will surrender herself to the Enforcement Officer for being detained in civil prison till such time as the petitioner comes and surrenders himself.
This is a very extraordinary direction and I am afraid cannot be permitted to be pressed into service to support the argument of the Directorate. With profound respect I am not persuaded to accept it as a binding precedent or an ideal guidance in other cases, be they even similar. The wife was not a hostage and could not be compelled to be contained in civil prison or prevented from going to her country until the husband surrenders himself. It is better to echo Denning in Ghani v. Jones (1969) 3 All E.R. 1700 :-
'The reason why the passports have not been returned is because the officers wish to prevent the plaintiffs from leaving this country pending police inquiries. That is not a legitimate ground for holding them. Either they have grounds for arresting them, or they have not. If they have not, the plaintiffs should be allowed to leave-even if it means they are fleeing from the reach of justice. A man's liberty of movement is regarded so highly by tl.e law of England that it is not to be hindered or prevented except on the surest grounds. It must not be taken away on a suspicion which is not grave enough to warrant his arrest.
It was observed in Satwant Singh v. A.P.O. New Delhi, : 3SCR525 that a right to travel abroad is a fundamental right, and where there is no law regulating or depriving a person of such a right refusal to give passport or withdrawal of one given violates Article 21 of the Constitution. It is, thereforee, rightly urged that detaining the passport of the wife is to deprive her and her son - no more a minor-of their right of locomotion. That apart, the period of passport itself expired in 1981 and she has got to be deported to the country from which she came. To allow her to remain in India beyond the period of passport unless she is detained under any valid law will amount to connivance at the breach of the rules regulating entry into India without a passport. In this situation, it will not be valid to accept an argument of the Directorate that this was a case of voluntary restriction which the wife imposed on herself vide her affidavit of 27-5-1981 in order that her husband may be able to go to his home country.
(12) It was pointed out that the surrender of the passport by the wife was not a condition of the bail granted to her husband. It was merely one of the conditions of the leave given to her husband to leave lr.dia. She was not even a surety for him, nor can her affidavit be construed as a surety bond prescribed by Cr. C.P. The affidavit does not created a contract between her and the State. It is not even in proper form, nor is it an undertaking covered by any provision of the code. In support of her argument, she relied upon the observations in Emperor v. Chinta Ram Air 1936 Nag 243, that the matter is not like an ordinary contract in which parties are at liberty to choose their own terms. In order to bind her on the basis of her affidavit, it must be shown to be in strict conformity with some provision of the code under which it was asked and given. No such provision is being shown. I think there seems no adequate answer to this contention. lf the wife demands the return of her passport, the leave given to the husband can at best be cancelled and if he does not return to India within the period allowed, as he has not for any reason good or bad, the document of her identity, nationality and liberty which a passport, is, cannot be forfeited forever.
(13) Consequently, I direct that the passport of the petitioner shall be returned to her within two weeks. The petition shall stand disposed of accordingly.