1. Petition challenging continued detention of illegal immigrants in prisons after completion of sentence under Foreigners Act, 1946, and the validity of deportation procedures. (Para 5 )
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2025 Supreme(SC) 1513
SUPREME COURT OF INDIA
J.B. PARDIWALA AND R. MAHADEVAN, JJ.
MS Maja Daruwala And Another
Versus
State Of West Bengal And Another
Transferred Case (Criminal) No.1 of 2013
Decided on : 16-05-2025
Illegal immigrants who have served their sentence cannot be indefinitely imprisoned. Pending a larger bench's decision and the construction of detention centers in West Bengal, those detained over three years post-sentence are eligible for release on bail subject to specific conditions, including sureties and biometric monitoring.
Headnote:(A) Foreigners Act, 1946 - Continued detention of illegal immigrants - Challenge to the validity of procedures for deportation and detention - The Supreme Court emphasized that once an individual has served their sentence, they cannot be detained further in prison awaiting deportation; they must be transferred to a correctional home or detention centre, which is currently lacking in the State of West Bengal. (Paras 11, 12, 13, 20, 23)
(B) Judicial propriety - When similar issues are pending before a larger bench, lower courts should refrain from making determinations that could influence ongoing cases. (Paras 7, 9)
Legal Category Hierarchy
Table of Contents
2. Petitioner seeks release of sentenced foreigners and challenges deportation memos; Union of India argues for a holistic view by a larger bench due to security ramifications. (Para 5 )
3. Persons who completed their sentence cannot remain in prison but must be held in detention centres; West Bengal's lack of such facilities justifies interim bail. (Para 12 , 13 , 14 )
4. A person cannot be detained in prison after serving a sentence, but illegal immigrants must be held in correctional homes pending deportation. (Para 12 )
5. Matter tagged with Writ Petition (Civil) No. 859/2013; illegal immigrants in West Bengal prisons detained over three years post-sentence granted bail under specific conditions. (Para 8 , 17 , 23 )
6. Can an illegal immigrant be detained in prison after completing their sentence under the Foreigners Act?
No, once a person is tried, sentenced, and has undergone the sentence, they cannot be kept in prison. However, as an illegal immigrant, they must be kept in a correctional home or detention centre in its true sense. (Para 12 )
7. Under what conditions can declared foreigners who have served long detention periods be released on bail?
Release is subject to executing a bond with two Indian citizen sureties, providing a verifiable address, capturing biometric data, reporting weekly to the specified police station, and submitting quarterly reports to the Foreigners Tribunal. (Para 5 , 17 )
8. What is the judicial propriety when a matter is pending before a larger bench on the same legal issue?
Judicial propriety demands that when the same issue is being considered by a larger bench, the smaller bench should not decide the matter and instead tag it with the larger bench's proceedings. (Para 6 , 7 , 8 )
ORDER :
1. This matter was heard finally some time back and the judgment was reserved.
2. Later in point of time, the learned Solicitor General of India and the learned Additional Solicitor General of India made a fervent request that the issue in question being very delicate one relating to illegal immigrants from Bangladesh and bilateral ties between two countries, i.e., India and Bangladesh, they be permitted to place some additional materials on record.
3. In such circumstances, we ordered that the matter be renotified to enable the Union of India to place the necessary materials on record.
4. Our order dated 30-1-2025 makes the picture abundantly clear.
We need not reproduce the same.
5. Today, we take notice of two affidavits filed by the Union of India dated 6-5-2025 and 15-5-2025 respectively duly affirmed by one Shri Pawan Kumar, the Under Secretary, Ministry of External Affairs. The two affidavits read thus:-
Affidavit dated 6-5-2025:-
"I. Pawan Kumar, S/o Late Shri Ram Kumar Prasad, aged about 48 years, presently working as Under Secretary, in my official capacity am well conversant with the facts and circumstances of the present matter and am competent to swear this Affidavit on behalf of the Respondent No. 2/ Union of India. I hereby solemnly affirm and state as under:-
1. That in my capacity as Under Secretary (Citizenship) I am conversant with the facts of the case from the official records maintained, which I believe to be true and correct. On the basis of the same, I am acquainted with the facts and circumstances of the case and accordingly competent to swear the present Affidavit.
2. That I have perused the contents of the present petition and I deny each and every averment made, and contentions raised therein except those which are expressly admitted herein.
3. It submitted that the present lis arises from the continued detention of illegal immigrants who have been convicted under the FOREIGNERS ACT , 1946, and thereafter have finished their period of detention. It is submitted that this Hon'ble Court is already seized of the present and ancillary issues raised a number of cases. It is submitted that in particular similar issues have been raised in Supreme Court Legal Services Committee v. Union of India and Another , 2019 SCC Online SC 1797, and subsequently in In Re: Contagion of Covid-19 Virus In Prisons , (2020) 20 SCC 735, wherein this Hon'ble Court has been pleased to issue a number of directions.
4. It is submitted that in the former case, i.e. Supreme Court Legal Services (supra) this Hon'ble Court had occasion to consider the larger issue of deportation of foreigners. In regard to the release of declared foreigners who have been detained pending deportation, this Hon'ble Court was pleased to prescribe specific conditions for the same. It is submitted that the release of such illegal immigrants was made subject to (i) the execution of two sureties, (ii) providing a verifiable address of stay, (iii) biometric data (iv) notification of change of address to the specified Police Station (2) quarterly reports on the appearance of the illegal immigrant to the concerned Police Station. This Hon'ble Court held as follows:
Insofar as the release of detenues who have served long period of detention in the detention centres awaiting their deportation is concerned, we are of the view that detenues who have completed more than three years may be released, subject to the following conditions:-
(a) Execution of bond with two sureties of Rs. 1,00,000/- (Rupees one lakh only) each of Indian citizens;
(b) He or she specifies verifiable address of stay after release;
(c) Biometric of his/her iris (if possible) and all ten fingerprints and photos shall be captured and stored in a secured database before release from the detention centres. He or she shall report once every week to the Police Station specified by the Foreigners Tribunal;
(d) He or she shall notify any change of his or her address to the specified Police Station on the sa
