Telangana High Court

Parveen Akhtar vs The State Of Telanganaand 4 Others on 15 September, 2022

Bench: Shameem Akther, E.V. Venugopal

THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

W.P.Nos.6407, 10465, 10474, 31190 & 31199 OF 2022

COMMON ORDER: (Per Hon'ble Dr. Justice Shameem Akther)

Since the issue involved and the point that arise for

determination in these five writ petitions are one and the same, all

these Writ Petitions are taken up together and are being disposed of

by this common order.

2. W.P.Nos.6407, 10465, 10474, 31190 and 31199 of 2022 are

filed by the petitioners, challenging the Government Orders vide (i)

G.O.Rt.No.541, dated 04.10.2021; (ii) G.O.Rt.No.538, dated

04.10.2021; (iii) G.O.Rt.No.593, dated 29.10.2021; (iv)

G.O.Rt.No.540, dated 04.10.2021; and (v) G.O.Rt.No.540 dated

04.10.2021 respectively, issued against (i) Raheemullah, S/o. Abdul

Kalam, (ii) Jaffar Alam @ Abdulla @ Mohd. Sajid, S/o. Mohd. Younus

@ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu Sidhiq, (iv) Noor Qasim @

Mohd Noor, S/o. Ahmed Siddiq @ Mohammed Siddiq, and (v) Nazar-

Ul-Islam @ Hafiz-Ul-Haq, S/o. Ahmed Siddiq @ Sale Ahmed

(hereinafter referred as the 'alleged detenus') respectively, whereby,

permission was accorded to the Director General of Police,

Hyderabad, to detain the alleged detenus at Central Prison,
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Cherlapally, Hyderabad, under proper security, till their deportation

process is completed.

3. We have heard the submissions of Ms. Bibi Aysha Mohammed,

learned counsel for the petitioner in W.P.No.6407 of 2022, Sri

M.A.Shakeel, learned counsel for the petitioner in W.P.Nos.10465,

10474, 31190 and 31199 of 2022, Sri T.Suryakaran Reddy, learned

Additional Solicitor General of India appearing for respondent

No.4/Union of India in W.P.Nos.10465, 10474, 31190 and 31199 of

2022 and Sri S.Mujib Kumar, learned Special Government Pleader

appearing for respondent Nos.1 to 3 and 5 in W.P.Nos.10465, 10474,

31190 and 31199 of 2022 and the respondents in W.P.No.6407 of

2022. We have perused the record.

4. The petitioners herein are the wife/cousin brother of the

alleged detenus, as the case may be. It is an undisputed fact that

the alleged detenus are Myanmar nationals and foreigners. Alleging

that the detenus obtained AADHAR Card, Voter ID Card, etc., on the

basis of fake certificates, Crime No.4/2020 for the offences under

Sections 420, 468, 471 of IPC and Section 14(c) of the Foreigners

Act; Crime No.23/2020 for the offences under Section 420, 468, 417

r/w 34 of IPC and Section 14(c) of the Foreigners Act; Crime

No.127/2019 for the offences under Sections 420, 468, 471 of IPC

and Section 14(c) of the Foreigners Act; Crime No.2/2018 for the
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offences under Sections 420, 465, 468, 471 of IPC and Section 12

(1)(b) of the Passport Act; and Crime No.2/2018 for the offences

under Sections 420, 465, 468, 471 of IPC and Section 12 (1)(b) of

the Passport Act, were registered against the alleged detenus in

subject W.P.Nos.6407, 10465, 10474, 31190 & 31199 of 2022

respectively, and they were arrested and remanded to judicial custody.

Subsequently, all the alleged detenus were granted conditional bail

by the Courts concerned. However, since the detenus are Myanmar

nationals, the Director General of Police, Telangana, vide separate

letters, requested the Government of Telangana to issue orders for

detaining the alleged detenus in Central Prison, Cherlapally,

Hyderabad, subject to the outcome of the criminal cases registered

against them and further stated that if at all the detenus get

acquittal in the crimes registered against them, they have to be

detained till the deportation process is completed. The Government

of Telangana, by exercising powers conferred by clause (e) of sub-

section (2) of Section 3 of the Foreigners Act, 1946 ('Foreigners Act',

for brevity) read with Government of India Notification No.4/3/56 (1)

F.I. dated 19.04.1958, vide S.O.590, issued separate Government

Orders permitting the Director General of Police, Telangana State,

Hyderabad, to detain the detenus at Central Prison, Cherlapally,

Rangareddy District, under proper security, till their deportation

process is completed with a further direction to the Director General
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of Police to take necessary action accordingly and intimate as and

when the deportation process of the alleged detenus is completed.

Accordingly, the Assistant Commissioner of Police, Special

Investigation Team, Hyderabad, addressed separate letters to the

Superintendent, Central Prison, Cherlapally, requesting to detain the

alleged detenus in the said prison till their deportation process is

completed. The alleged detenus are accordingly detained in Central

Prison, Cherlapally, Rangareddy District. That led to the filing of

these writ petitions by the petitioners, seeking a Writ of Habeas

Corpus, directing the respondents to set the alleged detenus at

liberty forthwith, by declaring the subject Government orders and the

consequential orders, as illegal.

5. Learned counsel appearing for the petitioners in all these writ

petitions would contend that the alleged detenus in all these writ

petitions are Rohingya refugees, who are peacefully residing in India

on the status of 'refugee' and are not to be treated on par with

foreigners. The alleged detenus cannot be detained in a prison,

merely basing on a Government order, as they are protected by the

Constitution of India, and cannot be treated as foreigners who visit

India for the purpose of tourism or economic prospects. Further, the

principle of non-refoulment prohibits expulsion of a refugee, who

apprehends threat in his native country on account of his race,
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religion and political opinion. Article 21 of Constitution of India

equally applies to the citizens of India and the foreigners as well.

Further, the detenus in all these writ petitions were granted bail by

the Courts concerned in the crimes registered against them and they

never violated the conditions incorporated in the bail orders.

However, the detenus are ordered to be detained until their

deportation process is completed, since they are Myanmar nationals

and residing in India illegally. The state of affairs of Rohingyas in

Myanmar is not conducive for safe repatriation and in case the

Government takes a decision to expel the Rohingyas from India, the

same would amount to serious violation of human rights. Taking this

Court through various international treaties and conventions, the

learned counsel for the petitioners submitted that the Rohingyas in

India are refugees and not economical or illegal immigrants, and

based on their refugee status, the Government of India recognizes

them as a candidate to hold Long Term Visa (LTV)/resident permit,

as per the internal guidelines on Refugee issued by Ministry of Home

Affairs, Government of India, dated 29.12.2011 relating to refugees.

India recognizes the Advisory Opinion on the Extraterritorial

Application of Non-Refoulment Obligations under 1951 Convention

relating to the status of Refugees and its 1967 Protocol. Though

India is not a signatory to Geneva Refugee Convention, 1951, and

the New York Protocol, 1967, but however, it is a party to the
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Universal Declaration of Human Rights, 1948 and to the International

Covenant on Civil and Political Rights, 1966. Further, there is no

word like 'detention' in clause (e) of sub-section (2) of Section 3 of

the Foreigners Act. The said word 'detention' finds place in clause

(g) of sub-section (2) of Section 3 of the Foreigners Act. The Central

Government did not delegate the power under clause (g) of sub-

section (2) of Section 3 of the Foreigners Act to the State

Government. Hence, the State Government cannot assume power

and permit detention of the alleged detenus under clause (e) of sub-

section (2) of Section 3 of the Foreigners Act. The detention of the

alleged detenus is ex-facie illegal and ultimately prayed to allow the

writ petitions by setting aside the subject Government Orders and

the consequential orders, and direct the release of the alleged

detenus forthwith.

6. Per Contra, the learned Assistant Solicitor General of India

appearing for Union of India would submit that the writ petitions are

not maintainable, either in law or on facts. The Passport (Entry into

India) Act, 1920, prescribes specific authorization of foreign nationals

on their valid travel documents/passports for allowing entry into

India. Under the said Act and the Rules made thereunder, the

foreigners coming to India are required to get VISA from Indian

Missions/Posts on their valid passports. India, as a matter of policy,
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does not support any kind of illegal migration or overstay, either in

its own territory or illegal migration of its citizens to foreign

territories. To facilitate orderly migration and timely exit, India has

robust VISA and immigration regime. Further, India is not a

signatory to Geneva Convention of 1951 relating to the status of

Refugees and the Protocol of 1967 thereof. India does not recognize

refugee status granted by United Nations High Commissioner for

Refugees. Since India is not a party to the said Convention or the

said Protocol, the obligations contained therein are not applicable to

India. Therefore, conferment of 'Refugee Status' by UNHCR to a

foreign national, who is not having valid travel documents, would not

alter their 'illegal immigrant' status and do not provide them

immunity against action taken under the relevant Acts. The Central

Government has been vested with powers under Section 3(2)(e) and

3(2)(c) of the Foreigners Act, to detain and deport foreign nationals

staying illegally in the country. Further, Under Article 239(1) of the

Constitution of India, the administrators of all the Union Territories

have also been directed to discharge the functions of the Central

Government relating to the aforesaid powers. Accordingly, all State

Governments/UT Administrators and Bureau of Immigration have full

powers to detain and deport any foreign national, who is illegally

staying in India, under the powers delegated to them. The Ministry

of Home Affairs, vide letter No.25022/28/2020-F.I, dated
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30.03.2021, has also issued consolidated instructions to all State

Governments/UT Administrators regarding the issue of overstay of

illegal migration of foreign nationals, which include guidelines dated

24.04.2014 and 01.07.2019, regarding procedure to be followed for

deportation of a foreign national and also guidelines dated

09.01.2019, regarding Model Detention Centre/Holding Centre/Camp

Manual. As per the existing procedure, where a foreigner is arrested

and action is taken under the relevant Acts, the foreigner can be

deported only after completion of the sentence/Court proceedings.

In case the foreigner does not have a valid travel document/

passport, it is necessary to obtain the requisite travel document from

the Embassy/High commission of the Country concerned, before

he/she can be deported. In the instant case, since the alleged

detenus have illegally migrated from a foreign country (Myanmar),

they were rightly ordered to be detained until they are deported to

their own country. There is no illegality in passing the impugned

government orders and ultimately prayed to dismiss the writ petition.

In support of his contentions, the learned Assistant Solicitor General

of India has relied on the following citations.

1. Selvakulendran @ Selvam @ Babu Vs. State of Tamilnadu1
2. Premavathy @ Rajathi, W/o. Kamalanathan Vs. State of Tamilnadu2
3. Mr.Innocent Amaeme Maduabuchukwi Vs. State of Goa3
4. Sree latha Vs. Sakthikumar Vs. The Secretary to Government, Government
of Tamilnadu4

1
2006 Law Suit (Mad) 672
2
2004 (2) CTC 10
3
Order, dated 10.07.2020, passed in LD-VC-CRI-7-2020 by High Court of Bombay at Goa.
4
Order, dated 21.09.2007, passed in H.C.P No.1138 of 2006 by the Madras High Court
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5. Rajalakshmi Vs. The Inspector of Police5
6. Momin @ Momimwar Hussain Vs. State of Tamilnadu6

7. The learned Special Government Pleader appearing for

respondents/State Government would contend that the alleged

detenus are refugees. They are Myanmar nationals. The alleged

detenus were arrested in connection with criminal cases registered

against them. Thereafter, on instructions of the Additional

Commissioner of Police, Crimes & SIT, Hyderabad City, the cases

registered against the alleged detenus were transferred to CCS/DD,

Hyderabad and were re-registered. During the course of

investigation, it has come to light that the alleged detenus,

fraudulently and by suppressing their original identity, obtained

AADHAR Card, Voter Card etc. On completion of investigation in the

crimes registered against the alleged detenus, charge-sheets were

filed before the Court concerned. At present, the criminal cases

registered against the alleged detenus are at the stage of framing

charges. The alleged detenus have no permanent address in the

country. They are foreign nationals belonging to Myanmar country

and entered into India illegally. In order to restrict their movements

and prevent them from committing further offences, as per the

orders of the Government vide the subject Government Orders, the

alleged detenus are detained in Central Prison, Cherlapally,

5
Order, dated 26.07.2019, passed in H.C.P.No.1608 of 2020 by Madras High Court
6
Order, dated 28.03.2019, passed in W.P.No.1141 of 2019 by Madras High Court
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Hyderabad by duly following the provisions of Section 3(2)(e) of the

Foreigners Act, for deporting them from India. There is no illegality

in passing the impugned Government Orders and ultimately prayed

to dismiss the writ petitions.

8. In view of the above rival submissions, the point that arises for

determination in these writ petitions is as follows:

"Whether the impugned Government Orders vide (i)
G.O.Rt.No.541, dated 04.10.2021, (ii) G.O.Rt.No.538,
dated 04.10.2021, (iii) G.O.Rt.No.593, dated
29.10.2021, (iv) G.O.Rt.No.540, dated 04.10.2021, and
(v) G.O.Rt.No.540 dated 04.10.2021 issued against the
alleged detenus viz., (i) Raheemullah, S/o. Abdul
Kalam, (ii) Jafar Alam @ Abdulla @ Mohd. Sajid, S/o.
Mohd. Younus @ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu
Sidhiq, (iv) Noor Qasim @ Mohd Noor, S/o. Ahmed
Siddiq @ Mohammed Siddiq, and (v) Nazar-Ul-Islam,
S/o. Ahmed Siddiq @ Mohammed Siddique, respectively,
who are detenus in W.P.Nos.6407, 10465, 10474, 31190
and 31199 of 2022, respectively, are liable to be set
aside?"

POINT:-

9. Admittedly, the alleged detenus in these writ petitions are

Myanmar nationals and foreigners. As regards their deportation to

their native country and the applicability of the various international

treaties and conventions referred by the learned counsel for both

sides, the matter is sub judice before the Hon'ble Apex Court in
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W.P.(C) No.793/2017 titled "Mohammad Salimullah and another Vs.

Union of Inida". Further, in an interlocutory application, i.e.,

I.A.No.38048 of 2021 filed in the said Writ Petition with a prayer to

release the Rohingya migrant detained therein and not to deport

such Rohingyas detained in the sub-jail in Jammu, the Hon'ble Apex

Court, vide order, dated 08.04.2021, declined to grant the said relief

and observed that deportation of such illegal migrants can be done,

provided the due procedure prescribed for such deportation is

followed. Hence, when the Hon'ble Apex Court is seized of the

matter on this aspect, the same cannot be adverted to by this Court.

Hence, this Court declines to address the said aspect in these writ

petitions.

10. The core question that needs answer in these writ petitions is

whether the respondents/State Government has the power to pass

the impugned Government Orders. There are five similar

Government Orders which are impugned in these writ petitions. One

of such Government Orders which is impugned in W.P.No.10465 of

2022 reads as follows:

GOVERNMENT OF TELANGANA
ABSTRACT
Home (Courts.B) Department - Permission to the Director General of Police,
Telangana State, Hyderabad, for detaining the accused A1 Jaffar Alam @
Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National
in Central Prison, Cherlapally till his deportation to Myanmar - Sanctioned -
Orders - issued.

LAW (LA, LA&J-HOME-COURTS.B) DEPARTMENT
G.O.Rt.No.538 Dated:04.10.2021
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From the Director General of Police, Telangana State, Hyderabad,
Rc.No.1572/C1/TS/2021, dated: 09-03-2021.
$$$
ORDER:

Whereas, the Director General of Police, Telangana State, Hyderabad, in the reference cited above has informed that A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National was arrested by Kanchanbagh PS, Hyderabad in Crime No.23/2020, U/Sec. 420, 468, 471, r/w 34 of IPC, and Sec.14(c) of Foreigner Act, 1946, and accused was produced before the Hon'ble VII Additional Chief Metropolitan Magistrate Court, Hyderabad, and sent for judicial custody. Later case was transferred and re-registered in Cr.No.36/2020, U/Sec. U/Sec. 420, 468, 471, r/w 34 of IPC, and Sec.14(c) of Foreigner Act, 1946 at CCS/SIT Hyderabad.

2. And whereas, the Director General of Police, Telangana State, Hyderabad, has requested the Government to issue necessary orders for detaining the accused A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National in Central Prison, Cherlapally, Hyderabad, subject to the outcome of the judgment of the Hon'ble XII Additional Chief Metropolitan Magistrate Court, Hyderabad, and further stated that if he is acquitted in the said case, he has to be detained till the deportation process is completed.

3. Now therefore, in exercise of the powers conferred by clause (e) of sub-section (2) of Section 3 of the Foreigners Act, 1946 (Act No.31 of 1946) read with the Government of India notification No.4/3/56 (1) F.I. dated: 19- 04-1958, Government, after careful examination of the matter hereby permit the Director General of Police, Telangana State, Hyderabad, to detain A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National in Central Prison, Cherlapally, R.R.District, under proper security till his deportation process is completed.

4. The Director General of Police, Telangana State, Hyderabad shall take necessary action accordingly and intimate as and when the deportation process of the accused A1 Jaffar Alam @ Abdulla @ Mohd Sajid S/o Mohd Younus @ Mohd Farhan of Myanmar National is completed, to the Government (BY ORDER AND IN THE NAME OF THE GOVERNER OF TELANGANA) A.SANTOSH REDDY SECRETARY TO GOVERNMENT LEGAL AFFAIRS, LEGISLATIVE AFFAIRS & JUSTICE To The Director General of Police, Telangana State, Hyderabad. Copy to:

The P.S. to Prl. Secretary to Government. (Home) The Law Department.

Sf/Sc // FORWARDED :: BY ORDER // Section Officer

11. The basis for passing the aforementioned Government Order is

the Government of India Gazette Notification No.4/3/56(1) F.I.,

dated 19.04.1958, whereunder, power was delegated to State

Governments under S.O.590, which reads as follows:

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New Delhi, the 19th April, 1958 S.O.590 - In exercise of the powers conferred by clause (1) of Article 258 of the constitution and of all other powers enabling him in this behalf and in suppression of all previous notifications on the subject in so far as they relate to the Acts, Rules and orders thereunder mentioned, the President, with the consent of the State Government concerned, hereby entrusts to the Government of each of the States of Andhra Pradesh, Assam, Bihar, Bombay, Jammu and Kashmir, Kerala, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal, the functions of the Central Government (i) Under Section 5 of the Indian Passport Act, 1920 (34 of 1920); (ii) under rules 2 and 4 of the Indian Passport Rules, 1950; (iii) under rule 3 of the Registration of Foreigners Rules, 1939; (iv) in making orders of the nature specified in clauses (c), (cc), (d), (e) and (f) of sub-section 2 of Section 3 of the Foreigners Act, 1946 (31 of 1946); and (v) under the Foreigners Order, 1948, subject to the following conditions, namely --

(a) that in exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may from time to time issue; and

(b) that notwithstanding this entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case."

12. Thus, the aforementioned S.O.590 makes it clear that the

Central Government has authorized the State Governments to pass

orders in relation to matters falling under clause (e) of sub-section

(2) of Section 3 of the Foreigners Act. Clause (e) of sub-section (2)

of Section 3 of the Foreigners Act, reads as follows:

3. Power to make orders:

(1) The Central Government may by order, 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) (a) xxxx

(b) xxxx

(c) xxxx

(d) xxxx

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

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

(ii) imposing any restrictions on his movements;

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(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 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;

(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;

(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;

(f) xxxx

(g) xxxx

13. In the instant case, there is no dispute that the alleged detenus

are Myanmar nationals and foreigners. A perusal of the impugned

Government Orders reveals that the Director General of Police,

Telangana State, Hyderabad, has requested the Government to issue

necessary orders for detaining the alleged detenus in Central Prison,

Cherlapally, Hyderabad, and acting upon the said request, the

impugned Government Orders were passed. In paragraph No.3 of

the impugned Government Orders, there is a specific mention of the

word 'detain'. The question now arises for determination is that

whether the Government has power to 'detain' the alleged detenus.

Here, it is apt to extract clause (g) of sub-section (2) of Section 3 of

the Foreigners Act, which reads as follows:

"(g) Shall be arrested and detained or confined"

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14. While clause (e)(ii) of sub-section (2) of Section 3 of the

Foreigners Act employs the words "imposing any restrictions on his

movements", clause (g) employs the words "arrested and detained

or confined". There is a lot of difference between 'restricting the

movements' of a person and his 'detention'. While the former is

somewhat liberal, the later is stricter in its applicability. The word

'detention' is nothing but total confinement of a person. In the

former, though the liberty of movement of the person concerned is

restricted, he is not detained. While the restriction of movements of

a person permits a person to move within particular area or place as

may be specified in the order, on the other hand, his/her 'detention'

directly and substantially affects his liberty of movement in its fullest

extent, which is against the scope and intent of Article 21 of

Constitution of India. Article 21 guarantees protection of personal

liberty to a citizen of India and a foreigner alike. Hence, restricting

the movements of a person cannot be, in any event, equated with his

detention. Further, though the power vested with the Central

Government under clause (e) of sub-section (2) of Section 3 of the

Foreigners Act was delegated to the State Governments by virtue of

the above referred S.O.590, the power under clause (g) of sub-

section (2) of Section 3 of the Foreigners Act, which was

subsequently included by way of amendment (inserted by Act 42 of

1962), was not delegated to the State Governments. The said power Dr.SA,J & EVV,J WP Nos.6407/2022 & batch

vests with the Central Government only. Further, the circumstances

narrated in clause (e) and clause (g) of sub-section (2) of Section 3

of the Foreigners Act are quite different. Both the clauses are

independent in action and exclude each other. In the instant case,

the action taken by the Government, i.e., detaining the alleged

detenus in Central Prison, Cherlapally, falls under clause (g) of sub-

section (2) of Section 3 of the Foreigners Act, but not under clause

(e) thereof. The situation would have been altogether different, if

the Central Prison, Cherlapally, was designated as a 'Refugee Camp'

and there was an order imposing any restrictions on the movements

of the detenus. Nothing is placed before us to substantiate that the

Central Prision, Cherlapally, is designated as a 'refugee camp' with

regard to its applicability to the Foreigners Act, so also there is no

order as indicated above. Further, when no power to arrest and

detain or confine a foreigner under the Foreigners Act has been

delegated to the State Government by the Central Government till

date, the State Government cannot issue any order, much less

Government order, granting permission to the police to detain a

foreigner. Viewed so, the impugned Government Orders and the

consequential orders are ex-facie illegal.

15. We have gone through the decisions relied by the learned

Additional Solicitor General of India. In Selvakulendran's case (1 Dr.SA,J & EVV,J WP Nos.6407/2022 & batch

supra), the Hon'ble High Court of Madras, while adverting to the facts

of the case and referring to various decisions, held as follows:

"Even otherwise, inasmuch as the petitioner is a foreigner/Sri Lankan citizen, taking note of his involvement in various offences, the State Government is empowered to pass orders including one requiring the petitioner to reside in a particular camp. We have already held that directing the petitioner to stay in a particular place, namely, Special Camp for Sri Lankan immigrants/refugees, as identified and located by the Collector of Kancheepuram District cannot be said to be an absolute restriction on his movement. Further, taking note of the security of the State, which is a prime concern, the Government has the discretion to restrict movement of foreigners requiring them to reside in a particular camp."

16. In Prevavathy's case (2 supra), the Hon'ble High Court of

Madras held that Foreigners have no right of free movement under

Article 19(1)(d) of the Constitution of India; Depravation of privacy is

no defence, unless it is tainted with mala fide; order restricting

movement as per Section 3(2)(e) of the Foreigners Act is not

preventive detention nor did it violate rights guaranteed under

Articles 14 & 21 of foreigners.

17. In Innocent Amaeme Maduabuchukwi's case (3 supra), the

Hon'ble High Court of Bombay at Goa observed that Section 3(2)(e)

of the Foreigners Act admittedly empowers the Central Government

and now that the powers have been delegated, even the State

authorities, to require a foreigner to reside in a particular place and

further impose restrictions upon their movements. This is different

and distinct from placing a foreigner under arrest and detaining and

confining him in terms of Section 3(2)(g) of the said Act.

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18. In Sree latha's case (4 supra), a reference was made to a

Larger Bench of Hon'ble Madras High Court to resolve the conflict

between the Division Bench decisions of that Court. Answering the

reference, a Full Bench of Hon'ble Madras High Court held as follows:

"A distinction is made between the internees held under Section 3(2)(g) of the Foreigners Act, 1946 and the internees held under Sub-section 2(e) of the Act. Insofar as the latter category of foreigners are concerned, they are to reside at a place set apart for residence. In this case, the facts that the detenu was ordered to remain in the Special Camp which was previously a sub-jail and that he was kept there inside a cell and was allowed limited movement outside the cell during day time is a clear case of confinement, for which there is no order under Section 3(2)(g) of the Act. There was no order under the National Security Act, 1980 either. Hence, there is a restriction amounting to detention. Therefore, the argument that the court should lean against the implying repeal does not arise for consideration in the facts of this case."

19. In Rajalakshmi's case (5 supra), the Hon'ble Madras High

Court observed as follows:

5 From a perusal of Sections 3 and 4 of the Foreigners Act, it is limpid that there are two classes of foreigners whose movements can be restricted and they are classified as parolees and internees. A foreigner is said to be a 'parolee' if an order under Section 3(2)(e) of the Foreigners Act, has been passed against him and a foreigner is said to be an 'internee' if an order has been passed against him under Section 3(2)(g), ibid. The Central Government has delegated the powers to pass orders under Section 3(2)(a) to (f), ibid., to the State Government under the notification of the Government of India, Ministry of Home Affairs, No.4/3/56 (1) F-1 dated 19.04.1958, by virtue of which, the State Government has been invested with the power to pass orders under Section 3(2)(e), ibid. As regards the internee, the Central Government has not delegated the power under Section 3(2)(g), ibid. to the State of Tamil Nadu.

20. In Momin's case (6 supra), the Hon'ble Madras High Court

observed as follows:

"A careful reading of Section 3 makes it clear that it gives power to the Central Government to frame subordinate legislation in the shape of statutory orders which could be general or particular in nature and may be in respect of foreigners or in respect of any individual foreigner. Clause (g) envisages that the order made under Section 3 may provide that the foreigner shall be arrested and detained or Dr.SA,J & EVV,J WP Nos.6407/2022 & batch

confined. It is not in dispute that power under Section 3(2)(a) to (f) has been delegated whereas power under Section 3(2)(g) which was included by amendment later on has not been subsequently delegated."

There cannot be any dispute with regard to the preposition of law laid

down in the cited decisions. However, in the instant case, the

State Government, by assuming the power which was not delegated

by the Central Government under clause (g) of sub-section (2) of

Section 3 of the Foreigners Act, passed orders permitting the police to

detain the detenus herein. The aforementioned citations relied by the

learned Assistant Solicitor General of India, do not refer to the subject

intricacy and determination. Hence, the facts of the cited decisions

are clearly distinguishable from the facts of the case on hand.

21. For the foregoing reasons, the detention of the detenus is

wholly unjustified, ex facie illegal, without specific delegation of

power under Section 3(2)(g) of the Foreigners Act, which the State