Delhi High Court: While hearing a writ petition filed by petitioner under Article 226 of the Constitution read with Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’) to issue an appropriate direction and orders to Respondent 2, Foreign Regional Registration Office (FRRO) for illegal detention and custody of the nephew of petitioner, the Division Bench of Suresh Kumar Kait* and Manoj Jain*, JJ., dismissed the appeal and held that the power of Government of India to expel foreigners was absolute and unlimited and the fundamental right of foreigners was limited to the one given under Article 21 of the Constitution and such acts of the authorities were in accordance with the law.
Background
Petitioner who was the maternal uncle of Azal Chakma, claimed that Azal was born and brought up in India and his mother solemnized marriage with Uttam Kumar, who came from Bangladesh to India. It was further added that Azal acquired his education in India and held Indian Passport, AADHAR Card, PAN Card, driving licence issued by Indian Authorities and had business in Kolkata.
Petitioner further contended that his nephew was in illegal custody of Respondent 2 from 13-10-2022 and was arrested from IGI Airport, New Delhi (‘the Airport’) while he was boarding the flight to Dhaka. It was claimed that he was in continuous illegal detention and was never produced before any Court or authority and his detention was absolutely illegal and against the provisions of the Citizenship Act, 1955.
Per Contra, Respondent 2 contended that Azal was apprehended at the Airport during immigration clearance when he was attempting to depart for Dhaka, Bangladesh based on fraudulently obtained Indian Passport. It was further contended that after enquiry it was found that he was visiting India till 2016 on multiple Indian visas on passport issued by Bangladesh and lastly, he had departed from India on Bangladeshi Passport on 17-06-2016 from Kolkata and there was nothing to show as to how he subsequently sneaked into India. It was possible that after his last visit he illegally entered into India and obtained fake documents.
Respondent 2 further submitted that his passport was revoked by the Indian Authorities on 21-06-2023. It had been proved by several instances that Azal was a Bangladeshi national and a citizen of Bangladesh by birth. His movements had been restricted under Section 3(2)(e) of the Foreigners Act, 1946 (‘the FA’) read with Section 11(2) of the Foreigners Order, 1948 (‘the FO’). It was also claimed that High Commission of Bangladesh had already issued travel permit documents for his returning, and he would be deported as soon as Bangladesh’s Embassy sent a confirmed air-ticket to Respondent 2.
Court’s Assessment
The Court opined that Azal was found to be travelling on Indian Passport which was fraudulently procured. Documents presented by Respondent 2 indicated that he was holding a Bangladeshi Passport and visited India on multiple occasion on that passport and lso, while applying for visa, he claimed himself to be a Bangladeshi national by birth. The Court stated that petitioner had not given any response in reference to the aforesaid documents and had failed to tell as to how and when he entered India after going to Dhaka.
It was further opined that an application was made under Section 97 of the CrPC before the Magisterial Court claiming for illegal detention which was disposed of by the Additional Chief Metropolitan Magistrate-II, Patiala House Courts, New Delhi on 17-07-2023 observing that the alleged confinement did not amount to any offence.
The Court relied on the observation of Supreme Court in Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta, 1955 SCC OnLine SC 35 that power of the Government of India to expel foreigners was absolute and unlimited and no foreign national could claim that he had a right to reside and settle in India in terms of Article 19(1)(e) of the Constitution as fundamental Rights of any such foreigner was limited to Article 21 of the Constitution.
The Court held that Azal himself had to be blamed for his miseries as he failed to explain as to how he came back to India when he left India on a Bangladeshi Passport and his movements had been restricted so that he could be deported back to Bangladesh. On petitioner’s contention that Azal could not be deported until his Indian Citizenship was terminated, the Court held that there was no question of termination of citizenship as he never seemed to have acquired it.
Thus, the writ petition was found without substance and the same was dismissed.
[Kinadhan Chakma v. Union of India, 2024 SCC OnLine Del 139, decided on 09-01-2024]
*Judgment authored by: Justice Suresh Kumar Kait and Justice Manoj Jain
Advocates who appeared in this case:
For the Petitioner: S. Narayan, Arvind Kumar Ojha, Manish Bhardwaj, Satish Chandra, Hari Kumar, Advocates
For the Respondents: Anurag Ahulwalia, Advocate (CGSC); Avshreya Pratap Singh Rudy, Advocate; Satish Kumar, Inspector, FRRO
