1. Petitioner declared foreign national and illegal migrant; conviction for illegal entry into Assam. (Para 2 , 3 , 4 )
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2026 Supreme(Gau) 1912
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Kalyan Rai Surana, Susmita Phukan Khaund, JJ.
Uttam Das, S/O Netai Ch Das – Petitioner
Versus
The Union Of India Represented By The Secretary To The Government Of India, Ministry Of Home Affairs, New Delhi, And Ors – Respondents
WP(C) 3385 of 2026
Decided On : 03-08-2026
Advocates Appeared:
For the Petitioner: Mr. T K Dey, Mr Sauradeep Dey,Mr. D K Agarwala
For the Respondent: Mr. S.K. Deka, CGC, Ms. A. Verma, FT & Border, Mr. A.I. Ali, ECI, Mr. P. Sarmah, ASGA
For the Petitioner: Mr. T K Dey, Mr Sauradeep Dey,Mr. D K Agarwala
For the Respondent: Mr. S.K. Deka, CGC, Ms. A. Verma, FT & Border, Mr. A.I. Ali, ECI, Mr. P. Sarmah, ASGA
The government has absolute and unfettered power to expel foreign nationals. Declared foreigners who illegally re-enter India are subject to expulsion and are not entitled to bail or citizenship if they failed to register within the prescribed statutory time limits.
Headnote:(A) Foreigners Act - Expulsion - Power of Government - The Union Government possesses absolute and unfettered discretion to expel foreign nationals from Indian territory, and such power is not restricted by the Constitution. (Para 12, 13)
(B) Illegal Migration - Re-entry - Expulsion of previously expelled persons - In accordance with the Assam Accord, persons who were previously expelled but have since re-entered India illegally shall be expelled. (Para 17, 19)
(C) Citizenship - Citizenship (Amendment) Act, 2019 - Registration - Immigrants detected as foreigners who fail to register themselves with the registering authority within the prescribed time limit are ineligible for the benefit of citizenship. (Para 23, 25)
(D) Detention - Bail - Declared Foreign Nationals - Prolonged detention in designated holding areas pending expulsion does not entitle a declared foreign national to bail, particularly where illegal re-entry into the country is established. (Para 19)
Issues: Whether a declared foreign national who illegally re-entered India is entitled to bail, citizenship under the Citizenship (Amendment) Act, 2019, or exemption from expulsion.
Result: Writ petition dismissed.
Legal Category Hierarchy
- crime and sentencing
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constitutional law
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fundamental rights
- right to life and personal liberty (Para 6)
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fundamental rights
- administrative law
- citizenship and nationality
Table of Contents
2. Petitioner claims prolonged detention and entitlement to bail and exemption from expulsion. (Para 5 , 6 , 7 )
3. Declared foreigner re-entered illegally after prior expulsion; State has power to detain pending expulsion. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 27 )
4. A declared foreign national who re-enters illegally after expulsion is liable to detention and expulsion. (Para 19 , 17 , 26 )
5. Writ petition dismissed; petitioner not entitled to bail or exemption from expulsion. (Para 28 )
6. Is a declared foreign national entitled to bail due to prolonged detention?
No; the State has power under the Foreigners Act and Immigration and Foreigner's Order to detain pending expulsion. (Para 19 )
7. Does a declared foreign national who re-enters after expulsion have a right to citizenship under the Citizenship (Amendment) Act?
No; persons detected as foreigners who did not register within the prescribed time are not eligible for citizenship benefits. (Para 23 , 24 , 25 )
8. Can a Refugee Registration Certificate issued under the Immigrants (Expulsion from Assam) Act be considered at this stage?
No; the court cannot rely on a document not considered in prior proceedings as it was not part of the record. (Para 21 , 22 )
JUDGMENT :
K.R. Surana, J.
Heard Mr. D.K. Agarwala, learned counsel for the petitioner. Also heard Mr. S.K. Deka, learned CGC; Mr. A.I. Ali, learned standing counsel for the ECI; Ms. A. Verma, learned standing counsel for the FT and Border matters; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate.
2. The petitioner is declared foreign national vide ex-parte impugned opinion dated 01.09.2009 passed by the learned Member, Foreigners’ Tribunal No.1, Goalpara in FT case No.1039/G/06 arising out of Reference District /ERO’s Case No.397/2003 thereby declaring him to be an illegal migrant entering into Assam after the cut-off date of 25.03.1971.
3. The petitioner had unsuccessfully assailed the said ex parte opinion by filing a writ petition under Article 226 of the Constitution of India, which was registered as W.P.(C) 4903/2009 and this Court by an order dated 08.01.2010 had dismissed the said writ petition. Therefore, the said ex parte opinion dated 01.09.2009 as well as the order dated 08.01.2010, passed in WP(C) 4903/2009 have attained finality.
4. The petitioner projects that the Court of learned Judicial Magistrate, Goalpara, took cognizance of the offence committed by the petitioner on receipt of a complaint petition, which was registered as CR-PPE 1/16 under section 6 (a) of the Passport (Entry into India) Rules, 1950 read with Section 14 (c) of the Foreigners’ Act, 1946. Later on, the proceeding was transferred to the Court of the learned Judicial Magistrate First Class, Goalpara for trial and in the said proceeding, the petitioner was convicted by order dated 25.09.2017, passed by the learned Judicial Magistrate First Class, Goalpara, thereby convicting the petitioner of the offence and sentencing him to undergo rigorous imprisonment for two years for the offence under Section 6 (a) of the Passport (Entry into India) Rules, 1950 and rigorous imprisonment for two years and fine of Rs.2000/-, in default to undergo simple imprisonment for one month for the offence under Section 14 (c) of the Foreigners Act, 1946, directing that both the sentences were to run concurrently and set off from the period already undergone.
5. The learned counsel for the petitioner submits that the petitioner had suffered prolonged detention since he was taken into custody on 02.11.2016. Accordingly, by relying on the order dated 10.05.2019, passed by the Supreme Court of India in W.P. (Civil) No.1045/ 2018, the petitioner is entitled to bail. It is further submitted that the petitioner is entitled to exemption from being sent back to the specified territory under the provisions of the Immigration and Foreigners (Exemption) Order, 2025. Moreover, it is submitted that the petitioner is entitled to benefit under the Citizenship Amendment Act, and that the said provisions are required to be read together with the Foreigners (Amendment) Order, 2015 and Passport (Entry into India) Amendment Rules, 2015. It is also submitted that the petitioner, being a Hindu belongs to the minority community in Bangladesh, would be entitled to exemption from being expelled from the Country.
6. It is further submitted that despite being incarcerated since 2016, the State has not taken any steps for the deportation of the petitioner to Bangladesh and therefore, he is entitled to bail. Moreover, it is submitted that the petitioner also has a fundamental right to be entitled to a family life and in this regard, it is submitted that the petitioner has a spouse and three sons and that the wife of the petitioner namely, Basana Das has applied for registration under Section 6 (A) of the Citizenship Act of 1955.
7. Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ, order or direction to the respondents to allow the petitioner to apply for citizenship under the Citizenship (Amendment) Act, 2019 and to order the release of the petitioner from the Holding Centre at Matia, Goalpara on bail on
