Abdul Shukoor vs Uoi & Ors.
2011 Latest Caselaw 3673 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 2nd August, 2011.

+              W.P.(C) 5386/2011 & CM No.10991/2011 (for stay)

%      ABDUL SHUKOOR                                        .......Petitioner
                  Through:              Mr. M. Tarique Siddiqui, Adv.

                                     Versus

       UOI & ORS.                                           ..... Respondents
                          Through:      Mr. Jatan Singh with Mr. Kunal
                                        Kahol, Advocates for UOI.
                                        Mr. Sumit Chander, Adv. for R-5 & 6.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                    Not necessary

2.     To be referred to the reporter or not?             Not necessary

3.     Whether the judgment should be reported            Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner is an Afghanistan national having „X‟-Visa (Multiple

Entry) for India valid upto 26th January, 2012; he arrived in Delhi on 29th

July, 2011 but was detained at the Airport only for deportation.

2. This writ petition was taken up on urgent listing on 30th July, 2011

when notice thereof was issued and the deportation of the petitioner was

stayed.

3. Mr. Jatan Singh counsel for the respondents, on 1st August, 2011

informed that the petitioner till the interim order had not been deported and

in pursuance to the interim order had not been deported. Today it is

informed that in view of the interim order, the petitioner who was being

detained at the Airport only has been allowed to leave the Airport subject to

further orders of this Court. The counsels have been heard.

4. It is the case of the petitioner that he was married to Ms. Seema

Shadmon, an Indian national at Delhi on 7th July, 2010; that he first entered

India at Delhi as a refugee on 4th June, 2006; that his wife Ms. Seema

Shadmon a citizen of India is residing at Delhi; that since January 2006 he

has visited Delhi on valid Visas about seven times; prior to his marriage, he

had on one occasion stayed continuously in Delhi for about two years but

after his marriage he went back to Afghanistan along with his wife Ms.

Seema Shadmon on 7th May, 2011 and came back to Delhi on 25th May,

2011; that he was making efforts for his wife Ms. Seema Shadmon to go to

Afghanistan along with him and for this reason he had to overstay in India

after the expiry of his Visa; that he was on 4 th May, 2011 penalized with a

fine of `1395/- for such overstay and which he has paid; that on 21st July,

2011 he went back to Afghanistan and was issued a valid Multiple Entry

Visa by the Indian Embassy in Afghanistan on 27th July, 2011, valid upto

26th January, 2012. It is his case that he was detained at the Airport and

sought to be deported for the reason of the earlier overstay. He contends that

having already been penalized for overstay with penalty as aforesaid, he

cannot be punished again for the same offence by deportation. The

petitioner in this regard relies on the information pertaining to Afghan

nationals published by the Bureau of Immigration of the Ministry of Human

Affairs, Govt. of India which prescribes the penalty aforesaid for overstay

and five years Visa extension for foreigners married to an Indian National.

5. Mr. Jatan Singh, counsel for the respondents has argued without filing

a counter affidavit. He has handed over a copy of an E-Mail message dated

26th July, 2011 of the Assistant Director, FRRO, Delhi of Look-Out

Circulars (LOC) having been issued against 22 Afghan nationals including

the petitioner for staying illegally in India and to ban their entry into India.

On enquiry as to why inspite of the said Look-Out Circular, the Indian

Embassy in Afghanistan on the next date i.e. 27th July, 2011 granted Visa

valid till 26th January, 2012 to the petitioner, it is stated that the same may be

owing to communication gap. Mr. Jatan Singh has in this regard also

handed over an Office Memorandum dated 27th October, 2010 on issuance

of Look-Out Circulars inter alia prescribing that the person against whom

look out circular is issued must join investigation by appearing before the

Investigation Officer (IO) or should surrender before the Court concerned or

should satisfy the Court that LOC was wrongly issued against him and that

LOC can be withdrawn by the authority which had issued it. It is however

not disputed that the petitioner is sought to be deported for overstay in India

on an earlier occasion. Reliance is placed on Sections 3(2)(a &c) of the

Foreigners Act, 1946 entitling the Central Government to pass an order

prohibiting entry by any foreigner into India. On enquiry, it is confirmed

that LOC is an interim measure pending blacklisting.

6. The counsel for the petitioner has contended that there is no allegation

of any criminal offence or of any anti national activity against the petitioner;

that the earlier overstay of the petitioner was for the reason of his wife being

unwell; that the petitioner in the past also has been frequently visiting India.

Reliance is placed on Hasan Ali Raihany Vs. U.O.I. AIR 2006 SC 1714.

7. Per contra, Mr. Jatan Singh relies on Hans Muller of Nurenburg Vs.

Superintendent, Presidency Jail, Calcutta AIR 1955 SC 367, Louis De

Raedt Vs. Union of India AIR 1991 SC 1886 and Anand Swaroop Verma

and Sherab Shenga Vs. Union of India 100 (2002) DLT 78.

8. The five Judges Bench of the Apex Court in Hans Muller of

Nurenburg (supra) held that Article 21 of the Constitution guarantees

protection of personal liberty to citizen and foreigner alike; no person can be

deprived of his personal liberty except according to the procedure

established by law; there can be no arrest or detention without the person

being produced before the nearest Magistrate within 24 hours; that there are

implicit in the right of expulsion under Section 3(2)(c) of the Foreigners Act,

a number of ancillary rights among them, the right to prevent any breach of

the order and the right to use force and to take effective measures to carry

out those purposes. It was thus held that the right to make arrangement for

an expulsion includes the right to make arrangement for preventing any

evasion or breach of the order, and the Preventive Detention Act confers the

power to use the means of preventive detention as one of the methods to

achieve the same. The Supreme Court however further held that "how far it

is necessary to take this step in a given case is a matter that must be left to

the discretion of the Government concerned". It was further held that the

Foreigners Act confers the power to expel foreigners and vests the Central

Government with absolute and unfettered discretion and there is no

provision fettering this unrestricted right to expel.

9. However a shift is found in Louis De Raedt (supra) and in a

subsequent three Judges judgment in Sarbananda Sonowal Vs. Union of

India (2005) 5 SCC 665 though without noticing Hans Muller of

Nurenburg aforesaid. The Supreme Court in the said judgments held that

though the power of the Government to expel foreigners is unlimited and

unfettered, there can be no hard and fast rule about the manner in which the

person concerned have to be given opportunity of being heard. It was held that

foreigners who had entered legally and in the absence of any serious charge

against them, may have a right of hearing.

10. Following the aforesaid principle, the Supreme Court in Hasan Ali

Raihany (supra) held that considering the petitioner therein entered in the country

legally in pursuance to the permit issued to him, it was fair that the competent

authority must inform him the reasons for his deportation and if such a decision is

taken, an opportunity to submit representation against the proposed decision be

given.

11. The Division Bench of this Court in Anand Swaroop Verma however in

the light of the facts that there were serious allegations against the petitioners held

them to be not entitled to any hearing. Another Division Bench in Mohd. Sediq v.

UOI MANU/DE/1165/1998 had held that the principle of natural justice has to be

read into Section 3(2)(c) (supra) and arbitrary exercise of power is not permissible.

12. It thus depends upon the facts of each case, whether the petitioner is

entitled to a hearing or not. Considering that aspect of Human Rights is involved

and scope whereof has been expanding over the years, it is found apposite

to follow a later judgment even if of a smaller Bench and which

expanded the concept of Human Rights of foreigners.

13. Considering that the petitioner entered the country under a valid Visa

and no action prohibiting his entry was taken when he had overstayed on an

earlier occasion and further considering that the order blacklisting the

petitioner is still to be made and his wife is in this country and yet further

considering that there is no serious allegation against the petitioner, it is

deemed expedient that the procedure for his blacklisting be expedited and he

be granted an opportunity to represent thereagainst and only if a final order

of blacklisting is passed against him, he be deported from India.

14. The writ petition is therefore disposed of with the directions:-

(i) The petitioner to submit his representation against his

blacklisting with the FRRO on or before 10 th September, 2011;

(ii) The FRRO to decide on the said representation of the petitioner

on or before 30th September, 2011;

(iii) If the petitioner remains aggrieved from the decision so taken,

he shall have remedies if any in accordance with law;

(iv) Else, the petitioner be deported immediately thereafter

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 02, 2011 bs (corrected and released on 27th August, 2011)