The Central Government cannot pass an order of deportation in respect of a suspected foreigner without holding an enquiry and giving reasonable opportunity to the person concerned in such enquiry to prove that he is not a foreigner but an Indian.

1. Common question of law and fact being involved in all the present writ petitions, the same have been heard analogously and will be governed by the same judgment.

2. All the writ petitioners claiming themselves to be permanent resident of different parts of West Bengal and Bihar and citizen of India and claiming to have been residing at Mumbai in the State of Maharashtra for pursuing their different avocation of life, have challenged the action of the Deputy Commissioner of Police, Mumbai in seeking to deport the petitioners to Bangladesh on the allegation that the petitioners are Foreigners and Bangladeshis as also the action of the West Bengal Police to keep the petitioners in custody for the purpose of executing the orders of deportation and sending the petitioners to Bangladesh on the ground that such action has been resorted to arbitrarily without holding any proper enquiry and in violation of the right to life and liberty of the petitioners as guaranteed under Article 21 of the Constitution of India.

3. In course of hearing the following very grave and important question of law have come up for determination for the Court: –

(i) Foreigners Act admittedly being applicable to the foreigners only and the expression Foreigners having been defined negatively in Section 2(a) of the said Act by providing that foreigner means a person who is not a citizen of India, whether it is necessary for the Central Government before passing an order of deportation of a person as a foreigner under Section 3 of the said Act to determine whether the concerned person is not a citizen of India and therefore a foreigner?

(ii) If yes, what would be the procedure for such determination. Is the appropriate authority required to form, an opinion in respect thereof on the basis of some materials or whether appropriate authority can merely proceed on a suspicion?

(iii) Section 9 of the Foreigners Act having placed the onus upon a person who is treated as a foreigner by the Central Government to prove that he is not a foreigner, how the person who has been served with the order of deportation will have the opportunity to discharge such onus and to prove that he is not a foreigner and before which forum?

(iv) Is the person who is sought to be deported as a foreigner is entitled to a reasonable opportunity to establish before the appropriate authority either before passing of the order of deportation or thereafter that he is not a foreigner and if yes then what should be the procedure for giving such opportunity to the person concerned.

4. All these questions have come up for consideration before this Court inter alia, in view of the fact that all the petitioners have alleged, without holding any proper enquiry they were first all taken into custody by the police by arresting them in the night from their places of residence and thereafter were forcibly boarded into a train and were taken to West Bengal and were handed over to the West Bengal Police for the purpose of deporting them to Bangladesh notwithstanding the fact that they are permanent resident of West Bengal and Bihar but went to Mumbai for pursuing their different avocation of life.

5. In W.P. No. 13898 (W) of 1998, Mansur Molla along with 5 other writ petitioners jointly moved the writ petition claiming themselves to be citizens of India challenging such order of deportation. All of them claim themselves as permanent residents of Howrah in West Bengal and complain of such alleged arbitrary action on the part of the Deputy Commissioner of Police, Special Branch (I), CID, Mumbai contending inter alia, that deportation is sought to be made without holding any proper enquiry into the question whether they are citizens of India or not.

6. In W.P. No. 22905 (W) of 1998, Tojibur Rahaman and two other writ petitioners who claimed themselves to be permanent residents in the District of Maida and Uttar Dinajpur respectively in West Bengal complain inter alia, that all of them were residing in Mumba