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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Md. Enamul Hasan and Others – Petitioners
Versus
The Union of India and Others – Respondents
Criminal Writ Jurisdiction Case Nos. 367, 369 of 2020
Decided On : 22-12-2020
Foreigners Act, 1946 – Section 14 and 14(C) – Registration of Foreigner Rules 1992 – Rule 14 – Corona Pandemic – Role of Nijamuddin Markaz in spread of Covid-19 virus – Right from beginning Union Home Ministry has issued guidelines to keep a close watch on activities of foreigners entering India on tourist Visa to ensure that foreigners do not indulge in religious /tabligh work – During Lockdown 1.0 there was complete prohibition on movement of people and all those who had arrived into India after 15.02.2020 had to remain under strict ho/institutional quarantine – At first instance 'BOI' has to identify foreign nationals who participated in tabligh activities on tourist visa and 'BOI' has to take penal actions for Visa violation – 'BOI' has not come out with any identification as regards these petitioners – No such facts have been placed before this Court – Act of identification of foreign nationals would involve collection of some material against them to show their involvement in tabligh activities – No material in form of Audio/Video cassettes, leaflets or pamphlets have been found in possession of these foreign nationals – There is absolutely no material in case diary to even prima-facie suggest that these foreign nationals had indulged in preaching of their religious ideologies or that they had addressed any congregation on 'Markaz' and 'Mosque' platform – It is an unfounded allegation – In case premises of 'Markaz' or 'Mosque' specially meant for stay of foreign nationals visiting India on tourist visa are found to be involved in being used as a 'boarding house' or a 'rest house' for travellers coming from foreign country then by virtue of their use keepers of such premises shall be responsible to comply with requirements of reporting as envisaged under Foreigners Order, 1948 as amended up-to-date – Foreign nationals were staying in 'Markaz' and 'Mosque' respectively in these cases from a date prior to imposition of lock-down 1.0 but same was not reported to competent authority by management of Markaz and Mosque respectively – Entire criminal prosecution against them quashed – Respondents directed to take steps forthwith to deport foreign nationals to their respective countries. (Paras 12, 49, 55, 57, 59, 60, 75, 85, 86 and 87)
AIR 2019 SC 210; 1992 Suppl. (1) SCC 335 – Referred.
(2007) 4 SCC 685 ; (2007) 4 SCC 502; (2007) 5 SCC 281; AIR 1978 SC 548 : 1978 SCR (3) 207 – Relied.
JUDGMENT :
RAJEEV RANJAN PRASAD, J.
1. These two writ applications have been preferred for identical reliefs, hence as prayed by learned counsel for the parties, both the applications have been heard together and are being disposed of by this common judgment.
Brief facts in Cr. W.J.C. No. 367/2020 (Md. Enamul Hasan and Others vs. Union of India and Others)
2. There are altogether 11 petitioners in this case. Petitioner No. 1 to 9 are foreign nationals, they came to India on tourist visa and at present these petitioners are residing in a Hotel situated in Ward No. 24, Araria in the State of Bihar. Petitioner No. 10 and 11 are the permanent residents of the same Districts. It is stated that petitioner no. 1 to 9 entered India by road through West Bengal, they visited the ‘Nijamuddin Markaz’ Delhi prior to Tablighi Conglomeration, thereafter they reached Araria in the State of Bihar on 11.03.2020 and they were residing in ‘Rawahi Markaz’ since 15.03.2020. It is their further statement that from media reports they came to know on March 21st, 2020 that the Ministry of Home Affairs (MHA), Govt. of India had asked the States to “screen, quarantine and deport” the foreign nationals who attended the religious gathering organized by the ‘Nijamuddin Markaz’ on 12-14th March, 2020. On 22nd March 2020 Janta Curfew was declared and from 24th of March the nation-wide lockdown for 21 days was declared with an aim and object to check the spread of Covid-19 virus which had taken a form of pandemic.
3. It is their further case that the petitioners were stranded in ‘Rewahi Markaz’ they were screened by the administration and then the local administration put them in quarantine and they remained quarantined at Rewahi Markaz for the mandatory period as per government’s Standard Operating Procedures (SOPs). According to the petitioners, pursuant to the directions as contained in letter no. 91 dated 09.04.2020 issued by the Ministry of Home Affair, Government of India the Bihar Police visited Rewahi Markaz on 12.04.2020 and registered the present F.I.R.
4. As per the First Information Report, on receiving information regarding the stay of foreign nationals in Rewahi Markaz when the police went to the Markaz to find out the genuineness and inquired from the Maulana Tohid regarding the stay of foreign nationals, Maulana Tohid (petitioner no. 10) disclosed that petitioner no. 1 to 9 had come on tourist visa and was staying there since 15.03.02020. According to the F.I.R. lodged by the Sub-Inspector of Police Narpatganj Police Station, Maulana Tohid and Maulana Munif (petitioner no. 10 and 11) had told the informant that the nine Bangaladesies nationals were staying in the Markaz since 15.03.2020, they were called in the Markaz by the Maulana and they are involved in spread of religious ideologies.
5. It is alleged that when the informant asked the Maulanas as to why no information about the stay of Bangaladesies nationals in the ‘Rewahi Markaz’ was made available to Narpatganj Police Station, the Maulanas were unable to satisfactorily answer the query of the informant.
6. The informant alleges that (i) none furnishing of information about their visit within the police station and (ii) getting involved in the spread of religious ideologies by a foreign national who is visiting India on a tourist visa, are offences under Section 14 and 14(C) of the Foreigners Act, 1946 (hereinafter referred to as the ‘Foreigners Act’ or ‘the Act of 1946’).
7. Initially by filing this writ application petitioners prayed for following reliefs:-
(b) For issuance of an order, writ or direction commanding respondents to deport petitioner Nos. 1 to 9 to their respective country since
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