Legal principle

Release of the passport of a foreign national accused in a customs offence can be allowed with appropriate conditions, but permission to travel abroad must be considered in light of the apprehension that the accused may not return to India, particularly while the bail order itself is under challenge.

Court decision

The Court passed only interim directions and decided nothing finally: it observed that the first prayer for release of the passport 'can undoubtedly not be objected to' and can be allowed with appropriate conditions as in similarly placed matters, but held that the second prayer to travel abroad would be considered by the Court only in light of the Trial Court's flight-risk apprehension and subject to the coordinate bench's decision on the bail challenge. It accordingly issued notice to the respondents (the APP waiving service for the State), directed service of the order, writ petition and interim application on the respondents with an affidavit of service, directed the respondents to file an Affidavit-in-Reply within two weeks, gave the applicant liberty to move the interim application once the bail order is decided, and listed both the interim application and writ petition on 22nd September 2026. No final relief was granted to either side; the Court also recorded a prima facie view that the matter, involving inconsequential recovery of gold removed from the petitioner, is covered by Sections 104 and 135 of the Customs Act, 1962.

Facts

Sahara Mohamud Sheikh, a foreign national from Kenya, was indicted in a customs offence of smuggling gold into India, with the Court noting the recovery of gold from her was inconsequential in amount and had been removed from her. She was released on bail by the Trial Court in view of her infant child, but that bail order is under challenge before a coordinate bench of the Bombay High Court and has been reserved for orders. She filed Interim Application No.3164 of 2026 in Writ Petition No.4535 of 2026 (which seeks quashing of the alleged seizure memo) praying for release of her passport and permission to travel to Kenya for 30 days, appending a travel itinerary. An Intelligence Officer, DRI, had expressed apprehension before the Trial Court that if the applicant returned to her home country she may not return to India. The Court issued notice to the respondents and directed them to file an Affidavit-in-Reply within two weeks.

Key provisions

• Section 135, Customs Act, 1962 — Evasion of duty or prohibitions
• Section 104, Customs Act, 1962 — Power to arrest