Delhi court on Tuesday acquitted 36 foreigners, who were charge sheeted for attending the Tablighi Jamaat congregation here by allegedly being negligent and disobeying the government guidelines issued in wake of the COVID-19 pandemic in the country.

Acquitting the foreigners from 14 countries of all charges, Chief Metropolitan Magistrate Arun Kumar Garg said the prosecution has failed to prove the presence of the accused at the Nizamuddin Markaz premises from March 12 to April 1.

The court said in its order that as per the list of evacuees, none of the accused had COVID­-19 symptoms and hence, there was no question of any negligent act on their part.

It said even if it is assumed for the sake of arguments that some of the accused were proved to have been found COVID­-19 positive on different dates, April 1, April 9 and April 10, in the absence of any symptoms at the time of their alleged stay at the Markaz, they cannot be said to have indulged in the commission of any negligent act likely to spread the infection.

The court had on August 24 framed charges against the foreigners under sections 188 (disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life) of the Indian Penal Code (IPC) and Section 3 (disobeying regulation) of Epidemic Act, 1897.

The charges were also framed under section 51 (obstruction) Disaster Management Act, 2005.

However, they were discharged for the offences under section 14 (1) (b) (violation of visa norms) of Foreigners Act, sections 270 (malignant act likely to spread infection of disease dangerous to life) and 271 (disobedience to quarantine rule) of the IPC.

The court pulled up the police and said not even an iota of evidence has been placed on record to prove the publication of the orders issued in the wake of the COVID-19 pandemic for social distancing and other precautions to bring it to the notice of persons staying in the Markaz.

"In my considered opinion, mere uploading of order on Delhi Police website shall not have the effect of promulgation, much less, the same is sufficient to prove that the knowledge of the promulgation of the order can be imputed to any of the accused," the judge said in his order.

The court said perusal of the passports reflected that the passports from some of the accused were allegedly seized prior to May 15 from different mosques or shelters situated within the jurisdiction of the Chandni Mahal police stations. Whereas, these accused as per the chargesheet, were available at hospitals or quarantine centres, where they were shifted from the Markaz, on the date of filing of the charge sheets, it said.

The court said the contradiction in the case of the prosecution rendered the plea sought by the accused that none of them were present at the Markaz during the relevant period and they had been picked up from different places so as to maliciously prosecute them upon directions from the Centre, reasonably probable.

"It is significant to note in this regard that the Bureau of Immigration, Ministry of Home Affairs, government of India has directed all Commissioner(s) of Police and DGP(s) of states to prosecute 960 foreign nationals as per list attached with the letter for visa violations and under other relevant provisions of law," it stated.

The court said though the complainant has named only eight accused, who were part of the Markaz management committee, during investigation, the police had arrayed 952 foreign nationals as accused in their chargesheets, out of the total 2,343 persons who were allegedly evacuated from the Markaz premises till early morning of April 1.

"It is beyond comprehension of the court, as to how the investigating officer (IO) could have identified 952 foreign nationals out of the 2,343 persons, who as per Station House Officer (SHO), were found flouting the guidelines, without any test identification parade, but on the basis of the list provided by Ministry of Home Affairs," it said.

The court said that if the SHO was aware of the actual number of persons gathered at the Markaz since the beginning, he still failed to take any timely measures to ensure dispersal of the gatherings despite being aware of the government guidelines.

“Else, if he was not so aware of the actual or even approximate numbers staying inside the Markaz till the last day of evacuation exercise, he in all probability is deposing falsely about his daily visits to the Markaz and briefing of the people stranded therein with government guidelines. In any case, his testimony has failed to pass the test of creditworthiness," it said.

"No such photographs and videography has been proved by the prosecution on record which would have been the best evidence to prove the presence of accused persons inside the Markaz premises during the relevant period,” the court said.

Additional Public Prosecutor Atul Srivastava, appearing for the police, said that through the uncontroverted testimonies of prosecution witnesses, the prosecution has been able to prove beyond reasonable doubts that accused while staying at the Markaz, being fully aware of the government guidelines, had flouted norms regarding maintaining social distance, wearing masks and using hand sanitizers with impunity.

Advocate Ashima Mandla, appearing for the accused, said the foreigners were not aware of the various notifications, regulations or orders issued by the government and were not present at the Markaz premises during the relevant period.