2019 Supreme(Mad) 1432

IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
Momin @ Momimwar Hussain @ Md. Monwar Hossain – Petitioner
Versus
State Rep. by the Principal Secretary to Public (Foreigners-II) Department – Respondent
W.P. No. 1141 of 2019
Decided On : 28-03-2019

Headnote:

Indian Penal Code,1860 - Sections 465, 466, 468, 471 and 420 - Foreigners Act 1946 - Sections 3(2) r/w 14, 3, 3(2)(e) and 3(2)(g) - Citizenship Act, 1955 - Section 5(1) - National Security Act - Section 3(2) - Indian Evidence Act, 1872 - Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 - Constitution of India,1950 - Articles 14,21,22 and 226 - Challenge - Quashing of Order - Cheating and dishonestly inducing delivery of property - Punishment for forgery -Petitioner is resident of address mentioned in writ petition - He is an Indian citizen and was born - He is working in reputed Companies in localities of Tiruppur - He has obtained Aadhar and Pan cards - Petitioner is not well acquainted with other languages viz Tamil and English - Communication problem had lead fourth respondent to file an F.I.R. against petitioner and others in Crime for alleged offences under Section 3(2)(c) read with Section 14 of Foreigners Act later altered to be under Section 3(2)(c) read with Section 14(A)(b) of Foreigners Act read with 465, 466, 468, 471, 474 and 420 I.P.C - Consequently petitioner along with other accused persons were arrested and sent to judicial custody - Case of prosecution is that petitioner along with others are natives of Bangladesh and are staying in India without any valid documents viz Visa Passport etc - It is further case of prosecution that petitioner along with other accused have fabricated documents and got employment in India and accommodation - Petitioner was in judicial custody for a period of days and got released on conditional bail - In meantime impugned order was passed by first respondent based on request made by Commissioner of Police Tiruppur City to lodge petitioner and other accused in Special Camp after period of conviction is over in event of Court convicts petitioner and other accused in Crime and also for deporting petitioner and other accused to their alleged home country viz Bangladesh - Consequently petitioner was lodged in Special Camp immediately after his release on conditional bail - Impugned order is punitive in nature and against settled principles of law - There is no necessity to detain a person even before trial - Intention of impugned is very clear to lodge petitioner only after his conviction period and not before that - Allegation made against petitioner does not fall within ambit of Section 3(2) of Foreigners Act as he is citizen of India by birth - Detention of petitioner through impugned order inspite of bail granted by this Court is clearly unconstitutional and deprived his personal liberty and other rights guaranteed under Articles 21 and 22 of Constitution of India - Assuming but not accepting as if petitioner is citizen of Bangladesh even in that case National Security Act alone can be applied and not Foreigners Act - Power to detain foreigners is available only with Central Government under Section 3(2) (g) of Foreigners Act and same has not been delegated to State Government - Hence impugned order cannot be sustained - Whether restrictions imposed on petitioner is justifiable or not whether order passed by State Government directing husband of petitioner to remain within Special Camp amounts to an order of detention or confinement as envisaged in Section 3(2)(g) of Act - Whether any person is or is not a foreigner of a particular class or description - Held, Section 3(1) of Foreigners Act is by very nature of things is a general power conferred on Central Government to make provisions by way of order - In other words it is an enabling provision empowering Central Government to make orders - Such orders can be made either generally or with respect to all foreigners or even with respect to any particular foreigner or any prescribed class or description of foreigner - Such orders can contain provisions prohibiting regulating or restricting entry of foreigners into India or their departure therefrom or their presence or continued presence therein - Section 3(2) is without prejudice to generality of power contained under Section 3(1) - Clause envisages inter alia that by such order conditions may be prescribed or specified requiring foreigner to reside in a particular place or imposing any restrictions on his movements - A careful reading of Section 3 makes it clear that it gives power to Central Government to frame subordinate legislation in shape of statutory orders which could be general or particular in nature and may be in respect of foreigners or in respect of any individual foreigner - Clause envisages that order made under Section 3 may provide that foreigner shall be arrested and detained or confined - It is not in dispute that power under Section 3(2)(a) to (f) has been delegated whereas power under Section 3(2)(g) which was included by amendment later on has not been subsequently delegated - Main question is therefore whether order passed by State Government directing husband of petitioner to remain within Special Camp amounts to an order of detention or confinement as envisaged in Section 3(2)(g) of Act - In this context submission of counsel for petitioner to effect that provisions contained in Section 3(2) particularly Section 3(2)(e) can be said to be impliedly repealed by provisions contained in National Security Act is required to be considered at threshold - A perusal of aforesaid provision makes it clear that such order of detention can be passed with a view to regulating continued presence of a foreigner in India or with a view to making arrangements for his expulsion from India - Central Government or State Government as case may be is required to come to conclusion that is necessary to do so - Specific power envisaged under Section 3(2)(e) appears to cover many other facets rather than detention of a foreigner - Under sub-clause of Section 3(2)(e) a condition can be imposed requiring foreigner to reside in a particular place - Under restriction can be imposed on his movement - Other sub clauses in Section 3(2)(e) refer to various other aspects which are distinct from aspect of detention of such foreigner - Therefore it cannot be said that Section 3(2) of National Security Act which contemplates detention of a foreigner with a view to regulate his continued presence in India or with a view to making arrangements for his expulsion from India cannot be said to be in any way inconsistent with provisions contained in Section 3(2)(e) of Foreigners Act - If at all there is any inconsistency it can be said that provisions contained in Section 3(2)(g) relating to arrest and detention of a foreigner can be said to be covered by provisions contained in National Security Act - However contention in this case is not that Section 3(2)(g) should be to be impliedly repealed by National Security Act - Specific contention is to effect that provisions contained in Section 3(2)(e) of Foreigners Act shall be deemed to have been repealed by provisions contained in National Security Act - This later contention according to in Court opinion is not acceptable - Since there is no specific contention relating to Section 3(2)(g) it is not necessary to express any final opinion on this aspect - Petitioner is Bangladeshi national and documents recovered from his possession support case of prosecution - Moreover under Foreigners Act In this context submission of counsel for petitioner to effect that provisions contained in Section 3(2) particularly Section 3(2)(e) can be said to be impliedly repealed by provisions contained in National Security Act is required to be considered at threshold - Bonus of proving that such person is not a foreigner or is not a foreigner of such particular class or description as case may be - Writ Petition Dismissed