The detention of a foreign national must be consistent with the mandate of Article 21 of the Constitution, and the court may direct release if no security threat or adverse impact on national security is established.

ORDER

1. The first petitioner Ana Parveen is the daughter, while the second petitioner Rohil Khan is the son of Mohd Qamar alias Mohd Kamil, who is detained at the Detention Centre at Lampur, Narela, Delhi.

2. Invoking the jurisdiction under Article 32 of the Constitution, the petitioners seek a writ in the nature of habeas corpus or any other appropriate writ for the production of their father, Mohd Qamar from the Detention Centre and for his release on furnishing a bond of Rs 5,000 with two sureties in the like amount so as to enable him to reside with his family in Meerut subject to reasonable restrictions.

3. Mohd Qamar was arrested in connection with FIR No 250 of 2011 under Section 14 of the Foreigners Act 1946 registered at PS Delhi Gate, Meerut. He was convicted and sentenced to three years and six months' simple imprisonment and to a fine of Rs 5,000 by the Chief Judicial Magistrate, Meerut on 2 September 2014. He completed his sentence on 6 February 2015. For the last seven years he has been lodged at the Detention Centre under the Foreigners Act, pending deportation on the ground that he is a Pakistani national. The detenue contested the assertion of his being a foreign national. But in writ proceedings before the Delhi High Court, he stated that he would be seeking Indian citizenship.

4. The case of the prosecution was that Mohd Qamar was a Pakistani national who came into India. He married an Indian citizen in 1989. The couple have five children - three sons who are labourers and two daughters who are home makers. The wife of Mohd Qamar is an Indian citizen. The children were born in India. Moh. Kumar is stated to be sixty two years old.

5. A representation was submitted on behalf of the Mohd Qamar by the first petitioner to the Ministry of Home Affairs. Responding to the representation, the Foreigners' Division of the Union Ministry of Home Affairs addressed a communication on 14 January 2019 to the Principal Secretary (Home Department), Government of Uttar Pradesh after adverting to the facts which have been referred to above, the Government of Uttar Pradesh was requested to examine whether Mohd Qamar may be released from the Detention Centre and be allowed to stay in the State of Uttar Pradesh on a long term visa or a visa "as per the existing provisions/norms".

6. The Senior Superintendent of Police, Meerut by a communication dated 26 November 2020 stated that the spouse of Mohd Qamar has stated that she was divorced from Mohd Qamar ten years ago in a panchayat before the community. However, no document of divorce is forthcoming. The spouse is living with her parents and children at PS Delhi Gate, Meerut. The SSP, Meerut indicated in his letter that since Mohd Qamar is divorced from his Indian wife, there is no justification for him to live in India and hence the representation to release him from the Detention Centre was not recommended.

7. On 26 November 2020, the Deputy Secretary to the UP Government in the Home Department addressed a communication to the Union Ministry of Home Affairs declining to recommend the release of Mohd Qamar from the Detention Centre on the ground that he has divorced his Indian wife.

8. The facts as they stand before the Court indicate that Mohd Qamar has served out his sentence. He has been lodged at the Detention Centre awaiting deportation since 7 February 2015. The communication of the Union Ministry of Home Affairs dated 14 January 2019 notes that he was provided consular access twice, namely, on 22 November 2011 and 22 January 2012 at Central Jail, Delhi, yet his nationality was still to be confirmed by the Pakistan government "which is essential for his repatriation/deportation to Pakistan". From the material which has been placed before this Court, it is undisputed that Mohd Qamar married an Indian citizen and they have five children, all of whom were born in India and stay in India. The Union government had sought the view of the Government of Uttar Pradesh on whether the case co