Rasidaben W/O Sidikbhai Daudbhai ... vs State Of Gujarat
2022 Latest Caselaw 1223 Guj

 R/SCR.A/2844/2020                             CAV JUDGMENT DATED: 04/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 2844 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2    To be referred to the Reporter or not ?                         NO

3    Whether their Lordships wish to see the fair copy               NO
     of the judgment ?

4    Whether this case involves a substantial question               NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RASIDABEN W/O SIDIKBHAI DAUDBHAI SHAIKH Versus STATE OF GUJARAT ========================================================== Appearance:

MR CHINTAN V ACHARYA(10558) for the Applicant(s) No. 1 for the Respondent(s) No. 2,3 MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)

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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 04/02/2022 CAV JUDGMENT (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. This is a petition preferred under Article 226 of the

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Constitution of India seeking issuance of writ of habeas

corpus for production of the corpus Amir - son of the

petitioner, before this Court who is alleged to have been

illegally detained by the Special Operation Group (SOG herein

after).

2. It is the case of the petitioner that she resides with her

family at the address given in the cause title, Siyasatnagar,

Chandola Lake, Isanpur, Ahmedabad. She has three sons and

three daughters. The corpus Amir is one of her sons who is

married and he also has three children; two sons and one

daughter. The petitioner has her Election Card, Ration Card

as also Aadhar Card to substantiate her version. She is

residing in Ahmedabad with her family for a long time. She

was doing the labour work in Ahmedabad on construction site

in her young age when the corpus Amir was born at work

place. She being an illiterate lady, the requirement of

registration of birth was not known to her and therefore, the

birth of the Amir was not registered. However, he is married

and has three children who are all born in Ahmedabad.

2.1. It is further the say of the petitioner that in the

aftermath of Godhra incident in the year 2002, the State

Government had rehabilitated the families as per the order

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passed in Special Civil Application No. 14664 of 2008 on

dated 28.01.2010. The petitioner also received a plot and Rs.

50,000/- from the Ahmedabad Municipal Corporation in the

name of her husband Sidiq Doudbhai Shaikh.

2.2. On 18.06.2020, it is the grievance of the petitioner that

when her son was working near octroi point, the respondent -

SOG with a suspicious mind that he is a Bangladeshi National

and is staying in India without any valid authorization and

permission, he was taken to the detention centre. It was given

to understand to the family that after finishing certain inquiry,

he would be released, however, he is continued to be in

detention centre from 18.06.2020. This is nothing but an

illegal custody. It is further the say of the petitioner that the

custody of the corpus is with SOG, Juhapura Police Station. It

is under the false allegation and pretext that his son is

Bangladeshi National that he is kept at detention centre.

2.3. The petitioner visited the detention centre as also the

police station and substantiated her version with Election

Card and Aadhar Card of her and those of her husband so also

the Ration Card of theirs where, in the Ration Card, names of

her family members have been mentioned. Petitioner

therefore approached this Court, inter alia, stating that

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number of visits have been made to the concerned authority,

however, her son is not released from the detention.

Therefore, she is before this Court with the following prayers:

"(a) Your Lordship may be pleased to admit this petition;

(b) The Hon'ble Court may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction, directing the respondent no.2 herein to produce petitioner's son Amirbhai, respondent no.3 herein before this Hon'ble Court;

(c) Your Lordship may be pleased to grant interim relief and by way of interim order be pleased to direct the respondent authority- SOG to produce corpus of Amirbhai, respondent no.3 before this Hon'ble Court, pending admission and final disposal of this petition;

(d) The Hon'ble Court may be pleased to issue a writ of Habeas Corpus or any other appropriate writ, order or direction, directing the respondent no.2 herein to release the petitioner's son, Amirbhai from illegal detention forthwith.

(e) Your Lordship may be pleased to pass such orders as through fit in the interest of justice."

3. This Court issued notice on 14.07.2020 and directed the

corpus to be produced before it on 16.07.2020 through video

conference from the nearest Court where Assistant

Commissioner of Police, SOG was asked to remain personally

present. Dr.Harshad Patel, Deputy Commissioner of Police,

SOG also was present as directed by this Court and the

following order came to be passed on 16.07.2020.

"1. Today, the Corpus is present before this Court through Video Conference. He is kept at SOG Office,

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Juhapura, Ahmedabad.

2. Dr. Harshad Patel, DCP, SOG, is also present before us through video conference. According to him, the corpus is suspected of being Bangladeshi national and though inquired, no documents have been produced by him for verification of certificate of birth or any other document, which may confirm his nationality, and therefore, restriction order came to be passed against him on 30.06.2020. He also has further submitted that his mother has furnished the documents, indicating his Aadhar Card and other documents for verification on 08.07.2020 and the same have been sent to the concerned authority for verification yesterday, i.e. on 15.07.2020. According to him, along with four other Bangladeshis, who travelled to this Country two to four years back, the Corpus has been placed under restriction order. According to the corpus, he has no been kept with all facilities and no cause of concern is given.

2. The corpus does not complain of anything although, he has been asked, by asking Mr. Annirudhsinh Parmar, PI, to remain out of the chamber, from where, the corpus remained present for video conference.

3. Learned PP, Mr. Amin, appearing with learned APP, Mr. Manan Mehta, has urged that the legality of stay of the corpus on the Indian soil requires to be examined. He, therefore, has sought one day's time for verifying from the authority which has issued Aadhar Card, since, the base documents for issuance of Aadhar Card are birth certificate or proof of birth and residential proof, required by the authority concerned.

4. Considering the fact that there is no criminal antecedent, as confirmed by Dr. Harshad Patel, DCP, SOG, on a specific query from the Court ,it has been urged that the man possibly travelled to this Country from Bangladesh, as a child aged 3 to 4 years.

5. Let the details be furnished to this Court on the part of the State or by the Office of the SOG, in particular. Dr. Harshad Patel, DCP, SOG is directed to ensure that the corpus shall be looked after properly. The corpus shall be presented before this Court tomorrow through

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video conference, which shall be arranged at City Civil Court, Ahmedabad, in the presence of a Presiding Officer of the City Civil Court.

6. S.O. to 17TH JULY, 2020. To be listed at the top."

3.1. As the corpus was not produced from the nearest Court

but from the SOG Office, Juhapura, we deemed it appropriate

to fix the matter the next day i.e. on 17.07.2020 and directed

the corpus to be present through video conference held at

City Civil and Sessions Court, Ahmedabad. Accordingly, on

17.07.2020, he was kept present in presence of presiding

officer.

4. The School Leaving Certificate and other materials also

had been directed to be produced before this Court as the

corpus studied upto 3rd standard in Municipal School No. 6,

Urdu Medium, situated near Haveli, Khamasa, Raikhad and

accordingly, the Principal, Municipal School No. 6, Urdu

Medium, situated near Haveli, Khamasa, Raikhad was

directed to produce Birth Certificate, School Leaving

Certificate and the General Register of the School reflecting

birth date or any other material which the school has in

connection with the date of birth and admission of the corpus

in the school.

4.1. It was also noticed that in the Election Card issued by

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the Election Commission of India in the name of the corpus,

there was a requirement of certain directions as three to four

years back, the request had been made for such correction

however, no response has been given by the authority

concerned. The corpus was permitted to approach the

concerned authority and it was directed to provide necessary

assistance, if the corpus approached the authority concerned.

The School Leaving Certificate obtained by the applicant was

permitted to be verified through advocate.

5. Pursuant to the order passed by this Court on

24.07.2020, learned advocate Mr. Anand Yagnik appeared for

the applicant and he made a request to permit him to meet

the corpus. Learned Public Prosecutor had no objection to the

lawyer meeting the client, however, according to him, it was

to be permitted in presence of the officer of the SOG as he

was apprehending undesired and unsustainable allegations,

on the ground of right of privacy. It was objected to by

learned advocate Mr. Yagnik as according to him, that would

frustrate the very purpose of meeting and he urged that the

police officer can remain at an inaudible distance. He also had

objected to the very act of detention at SOG Centre.

5.1. This Court, after hearing both the sides at length,

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permitted the meeting at the City Civil and Sessions Court,

Ahmedabad where the corpus was directed to be produced

and the meeting was to be conducted at the Mediation Centre

which was to take place in presence of the judicial officer as

may be deputed by learned Principal Judge, City Civil and

Sessions Court. The Police Officer who was to take the corpus

to the City Court was also directed to remain outside the

mediation centre.

6. On 31.07.2020, when the matter was fixed for hearing,

learned advocate Mr. Yagnik had expressed his satisfaction

for the arrangement made for meeting the corpus and over

the physical and mental condition of the corpus.

7. As per the request of learned advocate, the matter was

thereafter fixed for the petitioner to file its further affidavit

which was filed by the petitioner on 05.08.2020.

7.1. According to her, at the time of filing the affidavit, her

son was almost for 45 days in the custody of SOG. He is

illegally detained in absence of any FIR or any formal

complaint and without any sincere efforts to identify the

genuineness of his citizenship. This conduct has become a

trend and the only victims of this atrocious conduct are the

poor citizens of India staying in slums and who are

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marginalized and voiceless.

7.2. According to the petitioner, the detention and the witch

hunt of the detenue by the SOG with an attempt to partake

the application of the Foreigners Tribunal established

pursuant to Foreigners (Tribunals) Order, 1964 envisaged

under the Foreigners Act, 1946 and to determine issues of

citizenship, is completely de hors its powers, jurisdiction and

authority and hence, is illegal and unconstitutional. What is

fundamentally flawed in the whole attempt to detain and

question the citizenship of the detenue is the fact that when

his parents' citizenship is not questioned and they are deemed

to be citizens of India then, how could their child's citizenship

be put to scrutiny and that too, in the complete violation of

due process.

7.3. It is further urged that the respondents are bent upon

scrutinising the birth certificate of the detenue, which is

unfortunately because of circumstances out of the control of

the petitioner and the detenue not available and the

respondents have completely failed to investigate the lineage

of the detenue, which has put all doubts of the respondents to

rest. According to the petitioner, there were several people

living in slum around the Chandola Lake including the family

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of the detenue because of their West Bengal origin and the

suspicion loomed large for them. The detenue had been

similarly detained earlier and on the very ground, however, he

was released by the end of the day.

7.4. According to the petitioner, the detenue is born out of

the wedlock of Sidikbhai Daudbhai Shaikh and the petitioner

herself. Not only the detenue is not Bangladeshi but, her

parents do not have any relatives and acquaintances in

Bangladesh. They have nothing to do with Bangladesh.

Several years ago, they have migrated from Bangladesh to

Gujarat and have been residing in the slum areas around

Chandola Lake, Ahmedabad. The petitioner and her family

belong to the lowest strata of the society. They live in

extremely poor condition and are illiterate. They are engaged

in manual work to earn their livelihood like those of

Masoners, Carpenters, and Rag Pickers and other casual

labour. According to him, the detenue has four children and a

wife to look after. His family and children are sleeping hungry

as he is the only bread earner.

7.5. According to the petitioner, the father of the detenue is

around 61 to 64 years of age who was born in Simulia Village

of Chhapra Taluka of Nadia District in the State of West

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Bengal. Because of his search of work, he came to Gujarat

State. Likewise, the corpus was born in Deganga which is a

community developed block that forms an administrative

division in North 24 Parganas District in the State of West

Bengal. The parents of petitioner resided at Ahmedabad for a

long time and in fact the petitioner and her husband got

married at Ahmedabad.

7.6. The grandfather and great grandfather of the detenue

were residing in Simulia Village of Chhapra Taluka of Nadia

District in the State of West Bengal. The name of the

grandfather is Hajra Shaikh and the name of the great

grandfather was Dhiru Shaikh. He was called and referred to

in the village as Dal-lada and the story of how he had daal he

cooked for feeding the villagers which had led the people to

give him this name.

7.7. It is further the say of the petitioner that these are the

evidences which require consideration while examining the

person's citizenship. It is further her say that her parents and

maternal grandparents of the detenue also lived in

Ahmedabad. It is further his say that she has seven children;

four girls and three boys. The eldest son is Munir who is 40

years of age, second child is detenue Amir who is 36 years of

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age and the third one is Munira who is 34 years of age and

other four being younger to her.

7.8. The corpus - detenue being 36 years of age was born in

the year 1984, which is also reflected in the Identification

Card available with him and since Section 3 of the Citizenship

Act, 1955 provides that all those who are born on or after 26 th

Day of January, 1950 but before the 1 st Day of July, 1987, shall

be citizens by birth, the corpus having been born prior to

1987, is citizen by birth. His parents also are citizens of this

country.

7.9. It is further the say of the petitioner that in the year

2009, in complete violation of due process of law and without

availing any opportunity of hearing, the dwelling place of the

petitioner and her family had been demolished. Therefore,

Public Interest Litigation was made essentially for

rehabilitation. Thereafter, the petitioner lived in Ganeshnagar

along with her children whereas detenue Amir lived near

Chandola Lake with his wife and children.

7.10.It is the say of the petitioner that she and her husband

both are possessed Election Card, Aadhar Card, Document

issued by Ahmedabad Municipal Corporation (AMC),

Allotment letter issued by AMC. The petitioner - mother also

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had Pan Card. The elder brother of the detenue and the eldest

son of the petitioner also possess Election Card, Election

Receipt, School Leaving Certificate and Aadhar Card. The

detenue himself possess Election Card, Ration Card, his

daughter's birth certificate, Slum Survey Receipt,

Aadhar Card and Aadhar Card of his family members.

It is reiteratively urged that the petitioner has got Election

Card which is sufficient to decide all the doubts regarding the

citizenship of the detenue.

7.11.It is further urged, on the basis of the various laws, that

the detention of the detenue is illegal and his confinement by

the respondents and SOG is violative of his fundamental

rights. It is mentioned that in School Leaving Certificate of the

corpus the place of birth is mentioned as Bengal - Devadanga.

There is no document to show that Bangladesh is the birth

place of the petitioner. The corpus has been born in the city of

Ahmedabad and he has been living there with his parents.

Even otherwise, their origin also is West Bengal and they are

citizen of India. The petitioner has her origin at Deganga, it

sounds like Devaganga or to some it may sound like

Devadanga which is a community developed block. Someone

as illiterate as the deponent on being asked her native during

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the admission of the ward in the school must have stated

Deganga and hence, without any application of mind, in the

place of birth, the school authorities have mentioned the same

instead of mentioning the actual birth place of the ward which

is Ahmedabad. However, the personnel of the SOG with a

fixed mindset are certainly not equipped to understand the

concept of Anglicisation and the play of accent that may lead

to some discrepancies here and there and hence is bent upon

proving that the detenue is a Bangladeshi with malafide

intention and indicated in their affidavit in reply that the

detenue is an original resident of Village Diyadanga, Post

Kaile, Thana Kaliya, District Nodail (Bangladesh).

7.12. The grievance is also made that the petitioner when was

permitted to produce the School Leaving Certificate of the

corpus, the request is made to the Principal however, her

approach had completely changed on 23.07.2020 as on

22.07.2020, some of the officers visited the school premises. It

was further urged that the original school extract or

concerned record be called for which would indicate true and

relevant details.

7.13. It is further the say of the petitioner that there is a

tribunal in fact to examine the issue of citizenship, moreover,

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the condition precedent is that the detenue being a foreigner

or an illegal immigrant, the exercise of power for detaining

him does not exist. It is further her say that 15 to 18 other

detenue in the SOG premises are there and one detenue

named Zahid is lodged there for about more than 8 years. One

Mr. Pannu is there for more than 4 years. A lady is also there

for a long time who is separately kept in presence of women

police. There is one detenue namely Saiful who was brought a

day prior to the corpus and others and they are languishing

there without any proper inquiry or trial in SOG Centre. There

the corpus is provided food and permitted to meet the family

members. He has no complaint of custodial violence or ill

treatment by the SOG.

8. The affidavit-in-reply has been filed by Dr. Harshad

Patel, Deputy Commissioner of Police, SOG, Ahmedabad City

on dated 16.07.2020 where he has denied all the allegations.

It was insisted that her son Amir Sidikbhai Shaikh is the

citizen of Bangladesh and is originally resident of Village:

Diyadanga Post Kaile, Thana: Kaliya, District: Nodail

(Bangladesh). He, when was detained in the office of this

respondent, he never produced or supplied any documentary

evidence to justify that he is a citizen of Republic of India. His

office undertook the exercise of finding out the non-nationals

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of India and during the drive, near Chandola Lake,

Ahmedabad, on 20.06.2020, the corpus Aamir Sidikbhai

Shaikh along with four other similar such persons was

arrested by the officers of SOG, Ahmedabad City Police. None

of the five persons has supplied any document indicating

citizenship of Republic of India. Photocopy of Aadhar Card

was also not supplied at the relevant point of time but now, it

has been produced in this petition. Their COVID-19 virus test

had been carried out and the report came negative.

8.1. Thereafter, on taking cognizance of the report submitted

by the office of this respondent, on 02.07.2020, the office of

the Additional Commissioner of Police, Special Branch,

Ahmedabad by exercising powers under Section 3 (2)(g) of the

Foreigners Act, 1946 and under Section 5 of the Foreigners

Order, 1948 so also as per the notification of State

Government dated 02.12.1960, had passed an order to keep

the corpus and others under restriction till their deportation.

8.2. The joint interrogation was carried out on 09.07.2020 by

six agencies namely; (i) The Intelligence Bureau, Central

Government, (ii) The Intelligence Bureau, State of Gujarat,

(iii) Special Branch, Ahmedabad City Police, (iv) The Border

Security Force, Frontier Headquarter, Gandhinagar, (v) The

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Air Force Agency (Warrant Officer 9 - AFLU) and; (vi) Special

Operation Group (SOG), Ahmedabad.

8.3. It was revealed that they are Bangladeshi and their entry

was without any document and permission. He is residing in

India illegally and therefore, as per the provisions of

Foreigners Act, 1946 and Foreigners Order, 1948, the process

needs to be completed. According to this respondent, except

the copy of the Aadhar Card, no other document had been

produced and as per the provision of The Aadhar (Targeted

Delivery of Financial and other Subsidies, Benefits and

Services) Act, 2016, more particularly as per Section 9 of the

Aadhar (Targeted Delivery of Financial and other Subsidies,

Benefits and Services) Act, 2016, the Aadhar Card is not the

document of citizenship. Section 9 of the Act reproduced as

under: -

""9. Aadhar number not evidence of citizenship or domicile, etc.

The Aadhar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhar number holder."

8.4. The Unique Identification Authority of India (UIDAI) has

said that Aadhar is not the document of citizenship. The press

release dated 18.02.2020 by the UIDAI has also been annexed

to that effect. It is further stated in the reply that the office of

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the deponent had made attempts to verify the genuineness of

the Aadhar Card and also asked for documents, on the basis of

which, Aadhar Card was issued in the name of the corpus

Aamir, by sending e-mail to the office of Assistant Director

General, UIDAI, Mumbai dated 14.07.2020 and a reminder

also had been sent on 16.07.2020. The report is awaited.

8.5. According to this respondent, the corpus is kept at SOG,

Ahmedabad and on completion of requisite procedure, he

would be deported to Bangladesh. Following the Foreigners

Act, 1946 and Foreigners Order, 1948 and the notification of

the State Government dated 02.12.1960 the corpus is kept in

restrictions as he is the citizen of Bangladesh.

9. The further affidavit is also filed by Mr. Mukeshkumar

Naranbhai Patel, Deputy Commissioner of Police, SOG,

Ahmedabad City on 10.08.2020 where he has pointed out the

inconsistency emerging from the material and documents

submitted by the petitioner, more particularly, his date of

birth and place of residence.

9.1. So far as the date of birth of the petitioner is concerned,

as per the Election Card, the petitioner was 38 years of age as

on 01.01.2002. It means her year of birth is 1964 and the

identity card is issued on 05.07.2003. As per the Election Card

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submitted by the petitioner, her date of birth is XX.XX.1961.

This has been issued in January, 2011. As per her Pan Card,

the date of birth is 01.03.1961 and as per the Aadhar Card,

her birth date is 01.01.1961.

9.2. The date of birth of the husband of the petitioner as per

the Identity Card issued by Election Commission is

XX.XX.1956. Aadhar Card mentions the date of birth of her

husband as 01.01.1951. The passbook of Canara Bank of her

husband mentions the date of birth on 15.04.1961.

9.3. So far as the date of birth of the corpus - Aamir

Sidikbhai Shaikh is concerned, the Aadhar Card placed along

with the record shows his date of birth as 01.06.1984. The

Election Card placed along with the additional affidavit shows

his age as on 01.01.2002 as 22 years. As per the inquiry, the

Election Card has become invalid. As per the communication

received from the Government of India, Ministry of

Electronics and Information Technology, Unique Identification

Authority of India (UIDAI), Regional Office, Mumbai on dated

20.07.2020 addressed to Dr. Harshad Patel, DCP, Ahmedabad

and the concerned authority has proceeded for deactivation of

Aadhar Card. As per the School Leaving Certificate of

respondent no.3, the date of birth is 01.06.1984 and as per

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the petitioner's affidavit, his birth is not registered.

9.4. So far as the place of birth is concerned, petitioner has

stated that the place of birth of all children is Ahmedabad. As

per the School Leaving Certificate of respondent no.3, the

corpus's place of birth is Devadanga. The said certificate is

dated 23.07.2020.

9.5. The school leaving certificate of respondent no.3's

brother Munir mentions the place of birth as mentioned for

respondent no.3 where his date of birth is 01.06.1982. The

Election Card of his shows the date of birth as XX.XX.1981.

The School Leaving Certificate issued on 03.04.2010 reflects

reason for leaving the school as continuous absence.

9.6. The School Leaving Certificate of his sister also shows

the reason for leaving as going out of town. As per the

interrogation report dated 09.07.2020, the place of birth of

the respondent - corpus is Village-Diadanga, Post-Kaile,

Thana-Kalia, Jilla-Nodail, Bangladesh.

9.7. It is urged that he has been detained on the basis of

suspicion and confinement also followed. This respondent

denied that the respondent no.3 is rightful citizen of India.

There is no material prior to 24.07.2020 and subsequent to

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24.07.2020 to show that he is a citizen of India. It is further

the say of this respondent that the Deputy Director, UIDAI

had communicated that the documents related to Aadhar Card

are not available and the process for deactivating the same in

initiated as mentioned in the written communication dated

20.07.2020.

9.8. Aadhar Number is issued only if there is no duplication /

matching biometric found in UIDAI system for which Aadhar

is already issued. Aadhar as a means of identity is different

than other documents due to use of biometrics to ensure

uniqueness and there is no possibility of obtaining duplicate

Aadhar due to biometric de-duplication. Further vide letter

from Dr. Patel dated 17.07.020 request was made to provide

documents of Aadhar Number belonging to the corpus and as

per the records of UIDAI, the Aadhar Number was active and

documents were not available in UIDAI system and therefore,

as per Chapter VI of the Aadhar (Enrolment and Update)

Regulation, 2016 (as amended), in absence of any valid

supporting documents, the Aadhar Number needed to be

deactivated till its updated by the Aadhar Holder after

furnishing its valid and supportive documents and

accordingly, the office proceeded for deactivation of Aadhar in

compliance of Chapter VI. This will be referred to in

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appropriate time further.

10. All in all, it is urged that petitioner has inconsistently

attempted to gain the sympathy by placing certain details at

paragraph 22 in her affidavit which is unacceptable and

moreover, in Special Criminal Application (Habeas Corpus)

No. 315 of 2017 vide order dated 25.01.2017 the Division

Bench had not entertained the writ petition and had also

observed that the question of nationality cannot be decided in

habeas corpus petition. Therefore, this Court should not

entertain this any further.

11. This Court has heard learned advocate Mr. Anand

Yagnik appearing with learned advocate Mr. Chintan Acharya

and Mr. Vanraj Gohel appearing for the petitioner. He has

extensively argued and taken this Court through various

provisions of the Foreigners Act, 1946, the Foreigners Order,

1948, the Foreigners (Tribunal) Order, 1964, the Foreigners

(Tribunals) Amendment Order, 2019, the Citizenship Act,

1955, the Citizenship (Amendment) Act, 2019, the Citizenship

Rules, 2019, the Registration of Electros Rules, 1960, the

Aadhar Act, 2016 and the Aadhar (Enrolment and Update)

Regulations, 2016.

11.1. His principal submission is that there is a serious error

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committed by not allowing the applicant to discharge his

onus, moreover, he cannot be deprived of his life and liberty

under Article 21 without following the due process. According

to him, without issuance of notice and without giving

opportunity of hearing, he has been detained. There is an

abject violation of principle of natural justice and therefore,

the action is illegal and unsustainable. He needs to be

enlarged forthwith. There is no trial contemplated and what

all he is required is to be given is an opportunity before the

Civil Authority and unless there is a modification or

cancellation by the Central Government, he cannot be

deprived of his right.

12. We had called upon learned Additional Solicitor General

and Senior Advocate Mr. Devang Vyas to address the Court on

the procedure of deportation of illegal nationals. On seeking

instructions, he has urged that there are two kinds of persons

who can be called illegal; those who have already travelled on

a travel document and such document has expired and they

continued to stay illegally, thus, their entry is legal however,

by sheer afflux of time, their stay become illegal and second

category of people are those who have entered illegally. The

procedure of both would vary. According to him, once the

person travels to India with valid travel document, the FRRO

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would permit the person to enter the country and continue

being in the country. Once the travel document expires, he is

required to be deported after getting a travel document

prepared for such persons. So far as other category of persons

is concerned, the first step would be for deportation process

of verification of nationality. The State Authority would

contact the ministry of external affairs and would request the

nationality verification as prescribed by the nationality

verification form, more particularly, in respect of Bangladesh

nationals, the ministry would send to the High Commission of

Bangladesh in New Delhi or in four other places where

Deputy High Commission functions i.e. at Kolkata, Mumbai,

Agartala and Guwahati requesting them to verity the

nationality of an individual and thereafter, to issue a travel

permit and upon verification of nationality, such travel permit

is issued and deportation of detainee happens. However, there

is no standard time frame observed with regard to the time

taken by Bangladeshi Authorities to verify the nationality for

particular individual.

12.1. He further added that Bangladeshi Nationals who are

intercepted at border while crossing into India unauthorizedly

would be immediately sent back by the Border Security Force

(BSF) however, in case of those who have inadvertently

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crossed the border, they would be interrogated and after once

they are found innocent, they are handed over to the border

guards after holding a flag amity and the details are being

furnished to the Ministry of Home Affairs, Foreign Division

every month.

12.2. All State Governments or Union Territory

Administrations need to set-up Special Task Force in each

district of the State for detecting, identifying and intercepting

illegal immigrants from Bangladesh settled in the State. For

those immigrants who are apprehended in the country, the

action is taken under Section 14(A)(b) of the Foreigners Act,

1946 and those cases which are referred to Bangladesh High

Commission for nationality verification, till the nationality of

such Bangladeshi nationals is confirmed, they are kept at

detention centres set-up by the State and the Union

Territories concerned. It is further his say that in respect of

Bangladeshi nationals found to be staying unauthorizedly in

any particular State or Union Territory, proper inquiry is

required to be conducted by the State Government or the

Union Territory Administration and if the person concerned

claims Indian citizenship and residence of a place in any other

Indian State, the concerned State Government or Union

Territory would send to the Home Secretary of that State and

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District Collector, from where the suspected person claims to

hail and also for the details of near relatives etc. and proper

report needs to be sent by the concerned State Government or

District Magistrate to the deporting State Government after

proper verification within a period of 30 days. If no report is

received within the period of 30 days, the competent authority

is empowered to take necessary action to deport suspected

national. There are bound to be sufficient number of detention

centres in each State where the illegal immigrants would be

retained, pending their deportation.

12.3. He has also further stated that after completion of the

inquiry, the illegal immigrants from the neighbouring country

detected in the State or Union Territory other than the border

States with the Bangladesh would be properly escorted in

group as far as possible and handed over to the BSF in West

Bengal. Those who are being escorted, should also carry with

them, the order issued by the competent authority of the State

Government or Union Territory Administration under Section

3(2)(c) of the Foreigners Act, 1946.

12.4. The BSF also is required to inform all the State

Governments and Union Territories, the name, designation,

telephone, e-mail ID of designated officer of BSF to whom the

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illegal immigrants are to be handed over. The State Police

which will be escorting the illegal immigrants also needs to

carry the appropriate order issued by the competent authority

of the State Government under Section 3(2)(c) of the

Foreigners Act. The State Government would initially incur

expenditure of transportation up to the designated point

before being handed over to the BSF and subsequently such

amount is to be reimbursed along with the amount incurred

for performing the functions by the agencies on behalf of the

Central Government under the Foreigners Act, 1946.

12.5. He has also urged the Court that there is no time limit

for completing the procedure since a lot would depend on the

response being given by the Bangladesh High Commission as

a lot would depend on the authority of Bangladesh as the

response may not come well in time. According to learned

ASG, thus, when it is in relation to those persons whose

documents or the visas have expired and the travel

documents' invalidity is the issue for being illegally in the

country, generally the same is being responded promptly and

within one month ordinarily, such person is being transported.

Whereas, in case of those who have illegally entered the

country, it may take a little longer time as Bangladesh

authority usually takes a longer time to conduct the inquiry at

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their end, since accepting the illegal immigrants is the

responsibility of the neighbouring State. He also has urged

that there are certain circulars of Ministry of External Affair

which are confidential in nature and therefore, he can always

share the same with the Court, the gist of which he has

already argued before the Court.

13. Having thus heard both the sides and also on careful

examination of entire material, it can be safely noted that it is

a matter of record that on 20.06.2020 the Police Sub-

Inspector Mr.M.N.Solanki and Mr. Siyadia and others, when

were patrolling in the area of Isanpur Chandola Lake near

Aisha Mosque and other Mosque, the five Bangladeshi

persons were caught, by keeping the panch witnesses with the

team of the Police Officers, namely Ubeidullmulla s/o

Ibaduttmulla, Saaiful s/o Mandar Dulal, Umar Aaifbhai Shaikh,

Aamirbhai Sidikbhai Shaikh, Mustakin s/o Kurbab Paudud.

They were inquired of their passport and visa however, none

of them had either the passport or the visa and they also

admitted of being Bangladeshi Nationals. They had no other

proof of Election Card, Driving Licence, Pan Card or any other

proof. No objectionable material against India was found from

them and there was no other objectionable item found.

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13.1. The statement had been recorded by the Police Sub-

Inspector Mr. N.M.Solanki and as they continued to be in

India without any passport or visa, they had been detained at

7:45 pm on the very day i.e. on 20.06.2020. The report has

been prepared by the Deputy Commissioner of Police, SOG,

Crime Branch which specifies that as they have entered India

without any valid document of passport or visa and as there is

an absence of any document indicating that they have Indian

Nationality like Election Card, Ration Card, Driving Licence

passport or visa, they are infiltrated and illegal immigrants

and therefore, the report is submitted to the Additional Police

Commissioner, Special Branch, Ahmedabad City with the

enclosure of the report of the PSO, Panchnama, Statemen of

these five persons, Interrogation Form, Application Form of

Foreign Prisoner of his/her personal data and the

photographs.

13.2. According to the respondent - State, they have been

given the opportunity on the very day and after inquiring from

them when they failed to adduce any necessary material

establishing their nationality, they have been put under the

restriction and this is an interim measure permissible under

the law.

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13.3. The challenge is made by way of the writ of habeas

corpus where the challenge is essentially made to the order

passed on 02.07.2020 by the Civil Authority i.e. the Additional

Police Commissioner, Special Branch, Ahmedabad City, which

on the strength of this report tendered to him, exercised the

powers under Section 5 of the Foreigners Order, 1948,

Section 3(2)(g) of the Foreigners Act, 1946 and a Notification

of the State Government numbering as R.G.F/1160(II) dated

02.12.1960 and till they were deported from India, they are

kept under the restriction at SOG, Crime Branch, Juhapura,

Ahmedabad.

13.4. It is given to understand that this is an interim measure

meant for prohibiting, regulating or restricting the entry of

foreigners into India or their departure therefrom or their

presence or continuous presence. It is also further the say of

the State that there is no violation of principle of natural

justice and this is simply placing the persons under restriction

and nothing beyond the same. Once such order is passed by

the Additional Commissioner of Police, it is for the Ministry of

External Affairs and Ministry of Home Affairs to decide. The

time factor of which cannot be ascertained as it would depend

on the response of the country from which the illegal

immigrants have come.

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14. It is a matter of record that there are three affidavits

filed by the petitioner who is the mother of the detenue who

when was produced before this Court and when was

permitted to meet the lawyer, has not complained of any ill

treatment. Supply of food and meeting the family members at

SOG Centre also is permitted. The serious grievance raised is

of undefined and unregulated confinement and that too,

without fulfilling principle of natural justice. By way of

circular issued by the Government of India, Ministry of Home

Affairs and as also submitted before this Court by the learned

ASG that those Bangladeshi nationals who enter India illegally

after 25.03.1971 are treated as illegal immigrants. Those

infiltrated and those who overstayed unauthorizedly after

expiry of visa are to be deported back to Bangladesh. The

procedure has been also prescribed as per the instructions

issued by the Ministry of Home Affairs.

14.1. There are different ways in which this procedure of

deportation is carried out. Firstly, if they are intercepted at

the border while crossing unauthorizedly into Indian Border,

they shall be immediately sent back by the BSF. Secondly, in

case of inadvertent crossers, if they are found innocent, they

are being handed over at the flagmity. Thirdly, the Special

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Operational Group in the State and in the Union Territory, are

set-up for identifying and intercepting illegal immigrants.

Those who are illegal immigrants, if are apprehended in the

country against whom the action is taken under Section 14(A)

(b) of the Foreigners Act, they are referred to the Bangladesh

High Commission for nationality verification through the

Ministry of External Affairs and till the nationality of such

Bangladeshi nationals is confirmed, they are kept in detention

centre set-up in the State or Union Territory.

14.2. Proper inquiry is conducted by the State Government

and if the person concerned claims citizenship and residence

of a place in any other Indian State, that State or Union

Territory would be sent the details addressed to the Home

Secretary of the State including the name, parentage,

residential address, details of near relatives etc. and that

State will ensure the appropriate report is sent within 30

days. The competent authority will ensure with the detention

of such person to ensure the physical availability and if no

report is received within 30 days, the competent authority

may take necessary action to deport the suspected

Bangladeshi national.

14.3. After completion of the inquiry, the illegal immigrants

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are taken by the concerned State or Union Territory Police

with proper escort in a group or individually and handed over

to the BSF in West Bengal at the places designated and the

BSF would facilitate their exit from India to Bangladesh. The

appropriate order issued by the competent authority of the

State or Union Territory Administration under Section 3(2)(c)

of the Foreigners Act after proper inquiry, shall need to be

carried out. The State Police shall need to escort the illegal

immigrants from Bangladesh to carry out the appropriate

order issued by the competent authority of the State

Government under Section 3(2)(c) of the Foreigners Act.

There is a sufficient number of detention centres also in the

State for the said purpose.

15. These instructions very clearly require the State

Governments or the Union Territory Administrations to ensure

proper supervision on the inquiry process and to maintain a

complete record of the illegal immigrants who are being

handed over for the purpose of deportation. Consolidated

instructions regarding the procedure to be followed for

deportation or repatriation of the foreign nationals also

requires that as per Section 3 of the Foreigners Act, 1946,

"the Central Government may by order make provision, either

generally or with respect to all foreigners or with respect to

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any particular foreigner or any prescribed class or description

of a foreigner, for prohibiting, regulating or restricting the

entry of foreigners into India or, their departure therefrom or

their presence or continued presence therein." The powers for

deportation/repatriation of foreigners are vested in Central

Government in terms of Section 3 (2)(c) of the Foreigners Act,

1946 and according to which orders made under section 3

may provide that foreigners may not and shall not remain in

India or in any prescribed area therein. Further under Section

3(2)(e) of the Foreigners Act, 1946 read with para 11 (2) of

the Foreigners Order, the Central Government has powers to

issue orders requiring the foreigners to reside in a particular

place and of imposing restrictions on his movement. These

powers under Section 3(2)(c) and 3(2)(e) of the Foreigners Act

and Foreigners Order, 1948 have also been delegated to the

State Government and Union Territory Administration.

Separate Notifications have been issued from time to time

delegating these powers to the State Government and Union

Territory Administration.

15.1. Worthwhile it is to be reproduced at this stage Section 2

of the Foreigners Act, 1946 which defines "foreigner who is a

person who is not citizen of India." The power to make orders

is provided under Section 3 which is as follows: -

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"3. Power to make orders.--

(1) The Central Government may by order1 make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into 2[India] or, their departure therefrom or their presence or continued presence therein.

(2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner--

(a) shall not enter 2[India], or shall enter 2[India] only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed;

(b) shall not depart from 2[India], or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed;

(c) shall not remain in 2[India], or in any prescribed area therein; 3[(cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal;]

(d) shall remove himself to, and remain in, such area in 2[India] as may be prescribed; tc" (d) shall remove himself to, and remain in, such area in 1[India] as may be prescribed;"

(e) shall comply with such conditions as may be prescribed or specified-- tc" (e) shall comply with such conditions as may be prescribed or specified--"

(i) requiring him to reside in a particular place; tc" (i) requiring him to reside in a particular place;"

(ii) imposing any restrictions on his movements; tc" (ii) imposing any restrictions on his movements;"

(iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified; tc" (iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified;"

(iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his

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handwriting and signature to such authority and at such time and place as may be prescribed or specified; tc" (iv) requiring him to allow his photograph and finger impressions to be taken and to furnish specimens of his handwriting and signature to such authority and at such time and place as may be prescribed or specified;"

(v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified; tc" (v) requiring him to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified;"

(vi) prohibiting him from association with persons of a prescribed or specified description; tc" (vi) prohibiting him from association with persons of a prescribed or specified description;"

(vii) prohibiting him from engaging in activities of a prescribed or specified description; tc" (vii) prohibiting him from engaging in activities of a prescribed or specified description;"

(viii) prohibiting him from using or possessing prescribed or specified articles; tc" (viii) prohibiting him from using or possessing prescribed or specified articles;"

(ix) otherwise regulating his conduct in any such particular as may be prescribed or specified; tc" (ix) otherwise regulating his conduct in any such particular as may be prescribed or specified;"

(f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions; tc" (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of, any or all prescribed or specified restrictions or conditions;" 4[(g) shall be arrested and detained or confined;] and may make provision 5[for any matter which is to be or may be prescribed and] for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act. 5[(3) Any authority prescribed in this behalf may with respect to any particular foreigner make orders under clause (e) 6[or clause (f)] of sub-section (2).]"

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15.2. Section 3(2)(g) provides that the orders made under this

section may provide that the foreigner shall be arrested and

detained or confined.

15.3. Section 8 of the Foreigners Act, 1946 provides for

determination of nationality. Worthwhile it would be to

reproduce the same: -

"8. Determination of nationality. --

(1) When a foreigner is recognized as a national by the law of more than one foreign country or where for any reason it is uncertain what nationality if any is to be ascribed to a foreigner, that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected: Provided that where a foreigner acquired a nationality by birth, he shall, except where the Central Government so directs either generally or in a particular case, be deemed to retain that nationality unless he proves to the satisfaction of the said authority that he has subsequently acquired by naturalization or otherwise some other nationality and still recognized as entitled to protection by the Government of the country whose nationality he has so acquired.

(2) A decision as to nationality given under sub-section (1) shall be final and shall not be called in question in any Court: Provided that the Central Government, either of its own motion or on an application by the foreigner concerned, may revise any such decision."

15.4. Section 9 of the Foreigners Act, 1946 provides for

burden of proof, profitable it would be to reproduce the said

provision: -

"9. Burden of proof.--If in any case not falling under

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section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person."

16. It is thus clear that for the purpose of prohibiting,

regulating or restricting the entry of foreigners into India or

their departure therefrom or their presence or continued

presence, the Central Government has the power to make

provision either generally or with respect to all foreigners or

with respect to any particular foreigner or any prescribed

class or description of foreigners. This also authorizes the

Central Government to make the order and provide that

foreigner shall be arrested or detained or confined and may

make a provision for such incidental or supplementary

matters, which in the opinion of the Central Government, is

expedient and necessary for giving effect to this act.

Therefore, to say that by way of interim measures, the powers

exercised are of only restriction, does not go with the scheme

of the provision which does not provide for the restriction but

speaks of the arrest, detention or confinement.

17. With regard to the examination of nationality, Section 8

provides that when a foreigner is recognised as a national by

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the law of more than one foreign country or where for any

reason, it is uncertain what nationality is to be ascribed to a

foreigner, he may be treated as the national of the country

with which he appears to the prescribed authority to be most

closely connected for the time being in interest or sympathy

or if he is of uncertain nationality, of the country with which

he was last so connected, decision as to the nationality given

under sub-section (1) shall be final and shall not be called in

question in any Court, provided of course that the Central

Government either on its own motion or an application by the

foreigner concerned, may revise any such decision. So far as

burden of proof is concerned, Section 9 provides that if in any

case not falling under Section 8, any question arises with

reference to this Act or any order made or direction given

thereunder whether any person is or is not a foreigner, the

onus will be upon such person not withstanding anything

contained in the India Evidence Act, 1872.

18. Worthwhile it would be to refer to the Foreigners Order,

1948 at this juncture. A notification has been issued by the

Ministry of Home Affairs on 10.02.1948 in exercise of the

powers conferred by Section 3 of the Foreigners Act, 1946

and in supersession of the Foreigners Orders, 1939 and all

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notifications amending the same, the Central Government has

made the said order of 1948. The definition clause of Order 2

provides for civil authority which means such authority as

may be appointed by the Central Government in this behalf

for such areas as it thinks fit. Order 5 provides for power to

grant permission to depart from India. It states that no

foreigner shall leave India without the leave of the civil

authority having jurisdiction at such port and leave shall be

refused by the civil authority if it is satisfied that the foreigner

has failed to comply with the formalities of departure, or when

his presence is required in India to answer a criminal charge,

or in the event when his departure may prejudice the relation

of the Central Government with the foreign power and the

departure of the foreigner has been prohibited under the

order issued by the competent authority. The civil authority

also may prohibit the departure of the foreigner where it is

satisfied that such departure would not be conducive to the

public interest. Whenever the civil authority issues an order

under Clause-A, it would report the matter forthwith to the

Central Government which may cancel or modify the order.

Order 5(A) provides for power to examine the persons. It

would be profitable to reproduce the same: -

"5. (A) Power to examine persons: The civil authority may examine any person who seeks leave to enter India

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or to depart there from or during his stay in India for the Purposes of the Foreigners Act, 1946, or of any order made thereunder; and it shall be the duty of every such person to furnish to the civil authority such information in such manner and at such times, as that authority may require."

18.1. It is clear from this order that the civil authority has

power to examine any person who seeks leave to enter India

or to depart therefrom or during his stay in India for the

purposes of Foreigner Act, 1946 or any other made

thereunder and it is the duty of every such person to furnish

to the civil authority such information in such a manner and at

such times as the authority may require.

19. The Court is conscious of the Foreigners (Tribunal)

Order, 1964. The order passed by the Ministry of Home

Affairs on 23.09.1964 authorizes the Central Government to

refer the question as to whether a person is or is not a

foreigner within the meaning of Foreigners Act, 1946, to the

tribunal, to be constituted for the said purpose, for its opinion.

The tribunal can dispose of such questions by following the

procedure prescribed. The powers of the tribunal are the

powers of the civil Court while trying a suit under the Code of

Civil procedure in respect of summoning or enforcing the

attendance of the person or examining him on oath, requiring

the discovery of production of document and issuing the

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commission for examination of the witnesses.

20. This Court is conscious of the two decisions which are

sought to be relied upon by the respondent - State, where the

Division Bench of this Court has chosen, in a matter of writ of

habeas corpus, not to enter into the aspect of nationality on

the ground that it would be open for the detenue or the

relatives to apply to the competent authority under Section 8

of the Foreigners Act, 1946.

20.1 In Special Criminal Application (Habeas Corpus) No.

8527 of 2016, the husband of the petitioner was a citizen of

Bangladesh and several criminal cases were registered

against him. He resided in India without proper documents.

The petitioner was granted bail in connection with the

criminal cases. The order came to be passed under Section

11(1) and 11(2) of the Foreigners Act ordering to keep the

husband of the petitioner in confinement/restrictions. The

petitioner also produced certain documents that he was an

Indian national. As the question of nationality surfaced, the

Court directed him to approach the concerned authority under

Section 8 and disposed of the habeas corpus petition.

20.2 Likewise, in Special Criminal Application No. 315 of

2017, it was contended by the respondent - State that prima

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facie material emerged that the petitioner's wife was a

Bangladesh national and she was staying in India without

permission. She was, therefore, kept in confinement by the

Special Operational Group. The concern was voiced about the

wellbeing of hers and the authorities had been directed to

produce her before the Court. On inquiry, there was no ill

treatment found. As there was a question of nationality of the

lady, the Court held that the same cannot be decided in the

habeas corpus petition. There were several original

documents such as Voter's Card, Aadhar Card etc. concerning

the lady which had been supplied to the SOG to show that she

was a citizen of India. The Court directed that it would be

open for the petitioner to bring these to the notice of the

authorities and produce the copies of such documents for

consideration and despite that exercise, if the question of

nationality remain undecided, it would be always open to the

petitioner to take up the issue with the concerned ministry or

the Central Government in terms of the Foreigners Act.

21. Being conscious of these decisions and also conscious of

the fact that in the event of deciding the question of

nationality, the issue shall have to be raised before the

appropriate authority by the petitioner, this Court is

restricting its inquiry into the validity and propriety of the

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order passed by the civil authority by examining the principles

of administrative law. It shall have to be questioned as to

whether the order passed was legal, rational and the

procedural propriety also shall need to be inquired into. The

principle of natural justice would demand the hearing as also

considering the material which has been placed before the

authority concerned.

22. Without entering into the aspect of the nationality, if one

looks at the report prepared by the Deputy Commissioner of

Police in his capacity as a senior officer reporting to the

Additional Commissioner of Police who has been made a civil

authority, it is quite apparent that the inquiry has been

limited to the visa and the passport. The person concerned

since could not produce the same on the very day of patrolling

i.e. on 20.06.2020, the respondent no.3 along with other four

persons has been detained at the detention centre of SOG and

since then, the corpus continues to be at the SOG Centre.

23. It is to be noted at this stage that there are various

documents which have been produced before this Court,

which in the report, are missing. There has been no inquiry at

all made of the parents of the present corpus as the mother is

the petitioner and her nationality is not questioned nor

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doubted even. There are six children of the petitioner and the

corpus is one of them. Several years before, the SOG had also

made an inquiry and detained the respondent no.3 and later

on, he was released on having not found anything adverse.

The corpus has been once again during the patrolling

questioned by the authority and since he could not show his

passport and visa, he has been detained on the ground that he

is a Bangladeshi national. It is admitted by the respondent

authority that he has no criminal background. He is a labourer

working for his livelihood. He has his wife who is an Indian

national and four children are born out of their wedlock. The

documents of his parents, his siblings, his wife and his

children have not been regarded by the authority concerned

as there was no opportunity given for him to establish his

nationality. The Central Government has delegated the

powers to the civil authority which is from the State

Government and the powers also are given to them to inquire

into the nationality of a person, therefore, the powers are to

be exercised in accordance with law. The least that is

expected of the person who has been given such wide and

vital powers of recommending the deportation of a person on

the basis that he is not an Indian national, is to avail an

opportunity of hearing to the person concerned. We had

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pertinently queried learned Public Prosecutor as to whether

there is any notice given and a separate opportunity has been

made available for those who have been suspected as foreign

nationals, to adduce the relevant material for proving the

nationality. So far as the corpus is concerned, his education

from 3rd standard is in the school at Juhapura. He also has

produced before this Court his Aadhar Card so also his

Election Card. Certain anomalies in the names from Aamir to

Amir is much emphasized. It is to be highlighted here

specifically that the report of the Deputy Police Commissioner

and of the Additional Police Commissioner, Special Group also

refers him as Amir and not Aamir and thus, this anomaly can

surely not been blown out of proportions.

24. Be that as it may, there is no doubt with regard to his

identity. His entire family is in India. The order mentions his

relatives and family being in Bangladesh, this being a common

order for all the five persons who had been detained on the

same day, the authority possibly being unmindful of the

individual case, has reported it. The form filled-in by the

authority also gives the details which are incorrect and based

on the same, the Additional Police Commissioner has on

02.07.2020 exercised the powers under Section 3(2)(g) of the

Foreigners Act, 1946, Section 5 of the Foreigners Orders and

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the authorization he received vide notification dated

02.12.1960 of the State Government and directed the order or

detention till the order of deportation is received.

25. Worthwhile it is to make a mention that when this Court

requested the learned ASG to address the Court on possible

time period for the deportation in case of the foreign nationals

and particularly Bangladeshi nationals, he fairly submitted

that depending on the response received from the Bangladesh

Authority, on due verification of the nationality of those

persons for whom the proposal is sent for deportation, the

implementation is made. There is no fix period, as a lot

depends on other outer agencies. Although, it is not confirmed

by the respondent, by way of an affidavit it is claimed that

there are persons who are not deported for more than four to

eight years. This Court is not choosing to enter into that as

this is not the scope of this petition, at the same time, so far

as the case on hand is concerned, when it has been noticed by

this Court incidentally while addressing the issue raised by

the petitioner, let this aspect be taken up with requisite

seriousness by the concerned authority dealing with issue of

deportation at the level of External Affairs Ministry and

learned ASG is expected to play a vital role in streamlining

this aspect and its due implementation, up-keeping the human

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dignity. It is quite obvious from the order passed on

02.07.2020 that the same is without availing any opportunity

to the corpus to adduce the necessary material.

26. Without evaluating the material which has been

produced before this Court by the corpus, we deem it

appropriate to direct the authority concerned to avail that

opportunity and for the corpus to produce, for consideration

of the authorities, the necessary testimonials.

27. Admittedly, as mentioned above, the report prepared by

the DCP was without even availing opportunity to the corpus

and the Additional Commissioner has acted upon the same.

We are conveyed that till date, nothing has moved and the

corpus continues to be at the detention centre. When serious

flaw is noticed in observing principles of natural justice,

without entering the issue of nationality, on a limited ground

of non-availment of opportunity, this Court deems it

appropriate to intervene and to that limited extent, indulgence

would be inevitable, noticing unbridled powers assigned to

the authority, of course, for catching illegal/unauthorized

nationals. Resultantly, the opportunity requires to be availed

noticing apparent breach of administrative law and very

peculiar facts concerning respondent no.3 and his family.

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28. Till that exercise is completed, the petitioner shall be

released on the reasonable terms and conditions, as deemed

appropriate by the concerned authority within one week of

receipt of copy of this order, so as to ensure his availability if

he cannot satisfy the authority on the strength of his

testimonials.

29. The corpus since has questioned his confinement at the

SOG, without entering into the issue of nationality and its

nuances, to be determined by the concerned authority as the

same is found to have been done in disregard to the basic

requirement of availing opportunity. This petition to that

limited extent is allowed and disposed of in above terms.

(SONIA GOKANI, J)

(NIRZAR S. DESAI,J) Bhoomi