Delhi High Court
Mugwema Susan Wairimu vs Union Of India & Anr. on 2 January, 2017
$~10
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 02.01.2017
+ W.P.(C) 11986/2016
MUGWEMA SUSAN WAIRIMU ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Anoop Kumar Gupta, Advocate.
For the Respondents: Mr. Ajit Kumar Singh, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
02.01.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner seeks a mandamus against the respondents not to
deport the petitioner but to release the petitioner and to allow the
petitioner to go back to her Country i.e. Kenya.
2. The petitioner, on 04.07.2016, was issued a six months' tourist
(Multiple) Visa. One of the conditions of the visa was that the
petitioner could not stay for more than 90 days at a stretch.
3. The petitioner arrived in India on 18.07.2016. The visa is valid
till 03.01.2017. As per the respondents, the documents reveal that the
petitioner had visited Nepal on 15.10.2016 and returned back to India
on 17.10.2016.
4. The petitioner had been detained on 07.12.2016.
5. The contention of the respondents is that they had intelligence
inputs as well as complaints from Kenyan Embassy that House
No.229, Gali No.D-7, Chhatarpur, New Delhi was being used for
running a prostitution racket.
6. A raid was conducted on 07.12.2016 on the said premises,
wherein, one Nigerian National was found residing there without a
valid travel document/visa. The petitioner was also found in the said
premises. The petitioner is suspected to be indulging in undesirable
activity.
7. As per the counter affidavit, the petitioner is suspected to be
indulging in undesirable activity and illegal/illicit act in India in
violation of the visa rules and conditions. Her movement was
restricted under Section 3(2)(e) of the Foreigner Act, 1946
(hereinafter referred to as 'the Act') read with Section 11(2) of the
Act. The petitioner was kept at Restriction Centre, Mahila Sadan,
Nirmal Chhaya Complex, Jail Road, New Delhi. The respondents
intend to deport the petitioner on 03.01.2017.
8. As per the counter affidavit, though the petitioner had arrived in
India on a tourist visa but she had not visited any tourist places/spots
in India. The short visit to Nepal for only two days depicts that she
visited Nepal only to override the endorsement of stay stipulation of
90 days in India.
9. The respondents in the counter affidavit further contend that the
petitioner, in most probability, is indulging in undesirable activities
and illegal/illicit acts in India in violation of visa rules and conditions.
A report in a sealed cover has been produced. The same has been
perused and returned.
10. Perusal of the counter affidavit as well as the report shows that
the investigation is still underway. However, the investigation, till
date, has not conclusively established that the petitioner is indulging
in undesirable activities and illegal/illicit acts, in violation of the visa
rules and conditions. The respondents contend that the petitioner, in
all probability, is indulging in undesirable activity.
11. The visa of the petitioner, in any case, expires on 03.01.2017.
Time is short for conclusion of the investigation. In the counter
affidavit, the respondents have stated that it is a fit case for immediate
repatriation/deportation and the petitioner will be deported back to her
native country of origin. Learned counsel for the respondents admits
that the repatriation and deportation have different consequences.
Deportation would have serious consequences.
12. The enquiry, being conducted by the respondents, is still not
concluded and the enquiry conducted so far, does not establish that the
petitioner was in fact indulging in any undesirable, illegal/illicit
activity. The counter affidavit and the report show that the stand of the
respondents is that the petitioner, in most probability, is indulging in
such activity. There is no conclusive material or evidence, with the
respondents, as yet, to establish that the petitioner was actually
indulging in undesirable activities and illegal/illicit acts in violation of
the visa rules and conditions. Since the visa of the petitioner is
expiring on 03.01.2017, the respondents are intending to deport the
Petitioner on 03.01.2017.
13. Since the investigation till date has not established that the
petitioner was indulging in undesirable activities and illegal/illicit acts
in violation of the visa rules and conditions, it would prejudice the
petitioner, in case she is deported.
14. The respondents have themselves contended that the petitioner
is liable to be repatriated/deported. Since the intention of the
respondents is that the petitioner should leave the country and the
petitioner has expressed desire to leave the country on her own, it
would be in the interest of justice that the respondents repatriate the
petitioner instead of deporting the petitioner.
15. Accordingly, it is directed that the respondents shall repatriate
the petitioner. The respondents shall ensure that the petitioner leaves
the country by 03.01.2017 (when her visa expires) or within such
extended time as the respondent may deem appropriate.
16. The petitioner shall make necessary arrangements for her own
travel and leave the country by the expiry of 03.01.2017 or within
such extended time as the respondents may allow. The respondents
shall return the personal belongings seized from the petitioner.
17. Till the time the petitioner is repatriated out of the country, the
petitioner shall continue to remain at the Restriction Centre.
However, she will be provided the facility for making arrangements
for her own travel out of the country.
18. The writ petition is disposed of in the above terms.
19. It is clarified that this order has been passed in the peculiar facts
and circumstances of the case and it would not come in the way of the
respondents concluding their enquiry vis-a-vis the alleged acts of the
petitioner and taking appropriate steps in accordance with law, if in
future, the petitioner applies for a visa.
20. Dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
JANUARY 02, 2017
st
