[Cites 10, Cited by 0]
Gauhati High Court
Page No.# 1/ vs The Union Of India And 6 Ors on 16 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
Page No.# 1/11
GAHC010002682026
2026:GAU-AS:3822-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/153/2026
MD DILOWAR KHAN
SON OF MD. MUSHA KHAN, RESIDENT OF ANISHA COMPLEX, DANISH
ROAD, NEAR GOLD CINEMA, FANCY BAZAR/PANBAZAR, KAMRUP
METRO, ASSAM-781001.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE SECRETARY, GOVT. OF INDIA, MINISTRY OF
HOME AFFAIRS, NEW DELHI, PIN- 110001.
2:THE STATE OF ASSAM
REPRESENTED BY THE SECRETARY
GOVT. OF ASSAM
MINISTRY OF HOME AFFAIRS
DISPUR
GUWAHATI-781006.
3:ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
PIN110001.
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS NRC
ASSAM
ACHYUT PLAZA 1ST FLOOR
BHARALUPAR
BHANGAGARH
Page No.# 2/11
GUWAHATI-781005.
5:THE DEPUTY COMMISSIONER
DISTRICT- NALBARI
PIN- 781335
ASSAM.
6:SUPERINTENDENT OF POLICE
DISTRICT- NALBARI
PIN- 781335
ASSAM.
7:UNION OF INDIA
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF EXTERNAL AFFAIRS
NEW DELH
Advocate for the Petitioner : MR S P DAS, MR. D BORA,MR. A K AZAD,MR. N HAQUE,MR. P
K ROYCHOUDHURY,MR. A CHAUDHURY,MS C BORA,MS. S BAISHYA,MR. ANGSHUMAN
DEKA
Advocate for the Respondent : GA, ASSAM, MR. S S ROY(C.G.C.R-1),DY.S.G.I.,SC, NRC,SC,
ECI,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 16.03.2026
(K.R. Surana, J)
Heard Mr. P.K. Roychoudhury, learned counsel for the petitioner.
Also heard Mr. S. Borthakur, learned CGC for respondent no.1; Mr. G. Sarma,
learned standing counsel for FT and Border matters, for respondent nos. 2, 4
and 6; Ms. S. Katakey, learned standing counsel for respondent no.3; and Mr. P.
Sarmah, learned Addl. Senior Govt. Advocate, Assam.
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2) By filing this writ petition under Article 226 of the Constitution
of India, the petitioner, namely, Md. Dilowar Khan, has assailed the order dated
18.12.2025, passed by the learned Member, Foreigners Tribunal, Nalbari-1, in
F.T.(Nal) Case No. (N) 56/2025, arising out of D.C. Ref. No. 14/5/2025- MAG-
NLB, by which prayer for bail for the petitioner was rejected.
3) It may be mentioned that the Ministry of External Affairs, Govt.
of India was impleaded as respondent no. 7 vide order dated 17.02.2026. On
17.02.2026 and 12.03.2026, the learned CGC had submitted that as per
instructions received by him, it would take some time to inform the Court as to
whether the fingerprints of the petitioner matched with the passport issued by
the Islamic Republic of Afghanistan.
4) Accordingly, the learned counsel for the petitioner had pressed
the prayer for bail. Accordingly, all sides were heard on the prayer for bail.
5) In brief, the case of the petitioner is that on 15.12.2024, he was
arrested at Chennai International Airport by the immigration authorities and
handed over to the City Crime Branch-II. Consequently, the petitioner was
remanded to judicial custody for committing offences under Section 12(1)(b)
(1A)(a) of the Passports Act, 1967 and Sections 420, 468 and 471 of the Indian
Penal Code.
6) Per contra, the case of the prosecution, in brief, is that the
petitioner entered into India from Dubai at Chennai International Airport on
15.12.2024. Then, it was discovered that the petitioner is a citizen of Islamic
Republic of Afghanistan and by using his passport in the name of Lahor Abdul
Quayum, the petitioner had entered into India twice in the year 2021. Thus, it is
alleged that by fraudulent means, the petitioner has acquired an Indian Passport
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in the name of Mohammed Dilowar Khan, as well as other Indian documents
like Aadhaar Card, PAN Card, etc.
7) From the documents annexed to this writ petition, it is
projected that the petitioner was taken into custody on 16.12.2024. However, by
order dated 15.02.2025, passed by the learned Single Judge of the High Court
of Madras, in Crl.O.P. No. 2899/2025 - Md. Dilowar Khan v. The State,
represented by the Inspector of Police, City Crime Branch-II, Chennai , the
petitioner was ordered to be enlarged on bail on certain conditions as stipulated
therein.
8) Thereafter, vide order bearing G.O.(ID) No. 49 dated
06.02.2025, the Secretary to the Govt. of India, Public (Foreigner-I)
Department, had issued an order to restrict the movement of the petitioner, an
Afghanistan national, by providing that the petitioner would reside in the Special
Camp, identified and located by the District Collector, Tiruchirappalli, in the
event of his release from prison, till deportation. It was further ordered that the
Afghanistan national mentioned in the order, shall not leave the boundaries of
the Special Camp at Tiruchirappalli except with the prior permission of the
District Collector, Tiruchirappalli District.
9) The petitioner, aggrieved by the said restriction order dated
06.02.2025, assailed the same before the Madras High Court. It appears from
the order dated 29.08.2025, that the Division Bench of the Madras High Court,
took note of the fact that the Foreigners Tribunal is not functioning anywhere
else in the Country, except in the State of Assam and permitted the writ
petitioner to make a representation along with all supporting documents before
the Government of Tamil Nadu to enable it to make a reference to the
Foreigners Tribunal. Accordingly, the petitioner had made a representation on
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19.08.2025 and acting on the said representation, the State of Tamil Nadu had
written to the District Collector, Nalbari District, State of Assam, requesting the
matter to be placed before the jurisdictional Tribunal.
10) It appears from the communication dated 14.11.2025, issued by
the District Commissioner, Nalbari, as per the recommendation made by the
Senior Superintendent of Police, Nalbari, reference had been made before the
Foreigners Tribunal, Nalbari. Accordingly, F.T. (NAL) Case No. 56/2025 [arising
out of D.C. Ref. No. 14/5/2025- MAG-NLB] - Union of India v. Md. Dilowar Khan,
was registered.
11) The learned Member, Foreigners Tribunal, Nalbari, by order
dated 18.12.2025, rejected the prayer for bail and the matter was fixed on
02.01.2026 for production and written statement. The said order has been
assailed by the petitioner in this writ petition.
12) The learned counsel for the petitioner had submitted that but
for sending the petitioner to Nalbari for facing trial before the learned Foreigners
Tribunal, Nalbari, the petitioner, who was taken into custody on 16.12.2024, he
was enlarged on bail by order dated 15.02.2025, passed by the learned Single
Judge of the High Court of Madras. Accordingly, it was prayed that the petitioner
be enlarged on bail on such conditions as may be deemed fit and proper. It was
also submitted that the petitioner is facing trial in the proceedings of F.T. (NAL)
Case No. 56/2025, which is pending before the learned Foreigners Tribunal,
Nalbari, where he has to file his written statement and also to submit
documents.
13) Per contra, the learned CGC and the learned standing counsel for
the F.T. and Border matters, have objected to the prayer for bail.
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14) On 17.02.2026, when the matter was listed, the learned CGC
had produced written instructions from the Regional Passport Officer, Guwahati,
vide email, stating inter alia, that the Ministry of External Affairs, vide e-mail
dated 02.02.2026, has conveyed that the fingerprints which was sent by City
Crime Branch-I, Chennai, in CBEFF Format have been matched with the
biometrics connected to Passport No. V1736451 of Mohammed Dilowar Khan.
15) In course of hearing, it was submitted by the learned CGC that
further investigation is going on in the matter, for which some more time was
required. The learned standing counsel for the FT and Border matters has also
questioned how an Afghanistan national could procure an Indian Passport and
other Indian documents like Aadhaar card, PAN Card, etc., which is very serious.
16) Perused the materials available on record and also considered
the submissions made by the learned counsel for the petitioner and the learned
CGC, State and the learned standing counsel for the FT and Border matters.
17) The provisions of Section 4 of the Foreigners Act, 1946 has been
quoted below:-
"S.4 : Internees - (1) Any foreigner (hereinafter referred to as an internee)
in respect of whom there is in force any order made under clause (g) of sub-
section (2) of section 3, directing that he be detained or confined, shall be
detained or confined in such place and manner and subject to such conditions as
to maintenance, discipline and the punishment of offences and breaches of
discipline as the Central Government may from time to time by order determine.
(2) Any foreigner (hereinafter referred to as a person on parole) in respect of
whom there is in force an order under clause (e) of sub-section (2) of section 3
requiring him to reside at a place set apart for the residence under supervision of
a number of foreigners, shall while residing therein, be subject to such conditions
as to maintenance, discipline and the punishment of offences and breaches of
discipline as the Central Government may from time to time by order determine.
(3) No person shall--
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(a) knowingly assist an internee or a person on parole to escape from custody
or the place set apart for his residence, or knowingly harbour an escaped internee
or person on parole, or
(b) give an escaped internee or person on parole any assistance with intent
thereby to prevent, hinder or interfere with the apprehension of the internee or
the person on parole.
(4) The Central Government may, by order, provide for regulating access to,
and the conduct of persons in, places in India where internees or persons on
parole are detained or restricted, as the case may be, and for prohibiting or
regulating the despatch or conveyance from outside such places to or for internees
or persons on parole therein of such articles as may be prescribed."
18) Thus, it is seen that while the petitioner was in custody in
Chennai, the competent authority, the Secretary to the Government of India,
Public (Foreigners-I) Department, had passed the restraining order bearing G.O.
(ID) No. 49 dated 06.02.2025, in the petitioner's name of Lahor Abdul Qayum,
son of Abdul Qayum, which is reflected in the passport issued by the Islamic
Republic of Afghanistan, requiring him to be lodged in the Special Camp
identified and located by the District Collector, Tiruchirappalli, from his release
from prison till his deportation.
19) This writ petition was filed on 06.01.2026 and the notice was
issued by order dated 09.01.2026, but till date, neither the State respondents
nor the learned CGC for the Union of India have produced any such restraining
order directing that the petitioner shall stay in the Transit Camp or such other
designated camp.
20) Nonetheless, the Court is conscious of the fact that on one hand,
the petitioner is alleged to have made multiple entries into India by holding
passport issued by the Islamic Republic of Afghanistan bearing number
O1853371 P03613785, and on the other hand, he also has an Indian passport
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bearing number V1736451. Though in the case of the petitioner, no record of
his past criminal activities has been brought on record by the authorities, but as
per the news that has appeared in the recent past, several foreigners having
jehadi background and Indian supporters have been identified and taken into
custody. This aspect cannot be overlooked.
21) As regards the challenge to the impugned order dated
18.12.2025, passed by the learned Member, Foreigners Tribunal, Nalbari, in F.T.
(NAL) Case No. (N) 56/2025 [arising out of D.C. Ref. No. 14/5/2025- MAG/NLB]
is concerned, the Court finds no infirmity with the said order. Therefore, the
Court is disinclined to interfere with the said order dated 18.12.2025.
22) Be that as it may, the petitioner has projected that he was
granted bail by order dated 15.02.2025, passed by the learned Single Judge of
the High Court of Madras, in Crl.O.P. No. 2899/2025 - Md. Dilowar Khan v. The
State, represented by the Inspector of Police, City Crime Branch-II, Chennai , on
certain conditions as stipulated therein.
23) Moreso, the petitioner has also projected that he was taken into
custody on 16.12.2024, and thus, has remained in custody for 1 year, 3 months,
0 days (or 455 days), as on 16.03.2026.
24) Under the circumstances, the Court is of the considered opinion
that notwithstanding that the challenge to the order dated 18.12.2025, passed
by the learned Member, Foreigners Tribunal, Nalbari, in F.T. (NAL) Case No. (N)
56/2025 [arising out of D.C. Ref. No. 14/5/2025- MAG/NLB], is rejected, but as
no restraining order passed against the petitioner by the competent authority
after his transfer from Chennai has been shown before this Court, the Court is
inclined to direct that the petitioner be released on bail on the following
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conditions:-
a. The family members of the petitioner shall appear before the
Superintendent of Police (Border), Nalbari and furnish bail bond of
Rs.10,000/- (Rupees ten thousand only) with 2 (two) solvent sureties
of like amount to the satisfaction of the said authority.
b. Before the releasing the petitioner on bail, the Superintendent of
Police (Border), Nalbari shall obtain the biometrics of the iris of both
eyes, the fingerprints of both hands and the photographs of the
petitioner.
c. The said authority shall also obtain necessary information and
documentation as required under the Rules from the petitioner for
securing his presence.
d. Thereafter, steps shall be taken by the Superintendent of Police
(Border), Nalbari to have the petitioner, namely, Md. Dilowar Khan
released from the jail within 2 (two) days from the date of receipt of
certified copy of this order.
25) Bail is granted to the petitioner on the following conditions:-
a. The petitioner shall not leave the territorial jurisdiction of the District
of Nalbari, without prior permission in writing from the Superintendent
of Police (Border), Nalbari.
b. The petitioner shall appear before the Superintendent of Police
(Border), Nalbari, on 1st, 10th and 20th of every English calendar
month at 11. 00 A.M. and the said authority shall cause attendance of
the petitioner recorded by his office staff.
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c. The petitioner shall also appear before the learned Foreigners
Tribunal, Nalbari on each and every date, unless exempted by the said
learned Tribunal.
d. During bail, the petitioner shall not indulge in any criminal activity
and/or offence and shall not indulge in any anti-India activity
whatsoever. If any such act comes to the notice of the competent
authority, it would be open to them to move the learned Foreigners
Tribunal, Nalbari, for cancellation of bail.
e. It is made clear that on breach of any of the aforesaid conditions,
and/or if the petitioner remains unrepresented in the proceeding of F.T.
(NAL) Case No. 56/2025 [arising out of D.C. Ref. No. 14/5/2025- MAG-
NLB] on any date, it would be permissible for the learned Member,
Foreigners Tribunal, to pass an appropriate order and cancel bail
granted by this order and pass orders to take the petitioner into
custody and also to treat the petitioner as absent on call and decide
the proceeding in accordance with law. The power of the learned
Tribunal to cancel the bail in this case is not only granted by this order,
but such power can also be culled out from the decision of the
Supreme Court of India in the case of P.K. Shaji v. State of Kerala,
(2005) 13 SCC 283: (2005) 0 Supreme(SC) 1422.
26) It is also made clear that if any restraining order is passed by the
competent authority, the same shall prevail over this order.
27) Accordingly, though the challenge to the impugned order dated
18.12.2025, passed by the learned Member, Foreigners Tribunal, Nalbari-1, in
F.T.(Nal) Case No. (N) 56/2025, is rejected, however, the petitioner, namely, Md.
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Dilowar Khan is granted bail.
JUDGE JUDGE.
Comparing Assistant
