IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
SHAMEEM AKTHER, E.V.VENUGOPAL, JJ.
Smt. Anwara Begum – Appellant
Versus
The State of Telangana – Respondent
W.P.Nos.6407, 10465, 10474, 31190 & 31199 of 2022
Decided on : 15-09-2022
Indian Penal Code, 1860 - Sections 420, 468, 471, 34 - Foreigners Act, 1946 - Section 14(c), 3(2)(g) - Passport Act, 1967 - Section 12 (1)(b) - Constitution of India, 1950 - Article 21, 239(1) – Offence of cheating - Forgery for purpose of cheating - W.P challenging Government Orders whereby, permission was accorded to Director General of Police, Hyderabad, to detain alleged detenus at Central Prison, Hyderabad, under proper security, till their deportation process is completed – Held, State Government, by assuming power which was not delegated by Central Government under clause (g) of sub-section (2) of Section 3 of Foreigners Act, passed orders permitting police to detain detenus - Citations relied by learned Assistant Solicitor General of India, do not refer to subject intricacy and determination - Facts of cited decisions are clearly distinguishable from facts of case on hand - Detention of detenus is wholly unjustified, ex facie illegal, without specific delegation of power under Section 3(2)(g) of Foreigners Act, which State Government is not entitled to do so - Impugned Government Orders passed by respondents/State and consequential confirmation orders are hereby set aside - Writ Petitions are allowed.
ORDER:
Shameem Akther, J.
Since the issue involved and the point that arise for determination in these five writ petitions are one and the same, all these Writ Petitions are taken up together and are being disposed of by this common order.
2. W.P.Nos.6407, 10465, 10474, 31190 and 31199 of 2022 are filed by the petitioners, challenging the Government Orders vide (i) G.O.Rt.No.541, dated 04.10.2021; (ii) G.O.Rt.No.538, dated 04.10.2021; (iii) G.O.Rt.No.593, dated 29.10.2021; (iv) G.O.Rt.No.540, dated 04.10.2021; and (v) G.O.Rt.No.540 dated 04.10.2021 respectively, issued against (i) Raheemullah, S/o. Abdul Kalam, (ii) Jaffar Alam @ Abdulla @ Mohd. Sajid, S/o. Mohd. Younus @ Mohd Farhan, (iii) Abdul Aziz, S/o. Abu Sidhiq, (iv) Noor Qasim @ Mohd Noor, S/o. Ahmed Siddiq @ Mohammed Siddiq, and (v) Nazar-Ul-Islam @ Hafiz-Ul-Haq, S/o. Ahmed Siddiq @ Sale Ahmed (hereinafter referred as the ‘alleged detenus’) respectively, whereby, permission was accorded to the Director General of Police, Hyderabad, to detain the alleged detenus at Central Prison, Cherlapally, Hyderabad, under proper security, till their deportation process is completed.
3. We have heard the submissions of Ms. Bibi Aysha Mohammed, learned counsel for the petitioner in W.P.No.6407 of 2022, Sri M.A.Shakeel, learned counsel for the petitioner in W.P.Nos.10465, 10474, 31190 and 31199 of 2022, Sri T.Suryakaran Reddy, learned Additional Solicitor General of India appearing for respondent No.4/Union of India in W.P.Nos.10465, 10474, 31190 and 31199 of 2022 and Sri S.Mujib Kumar, learned Special Government Pleader appearing for respondent Nos.1 to 3 and 5 in W.P.Nos.10465, 10474, 31190 and 31199 of 2022 and the respondents in W.P.No.6407 of 2022. We have perused the record.
4. The petitioners herein are the wife/cousin brother of the alleged detenus, as the case may be. It is an undisputed fact that the alleged detenus are Myanmar nationals and foreigners. Alleging that the detenus obtained AADHAR Card, Voter ID Card, etc., on the basis of fake certificates, Crime No.4/2020 for the offences under Sections 420, 468, 471 of IPC and Section 14(c) of the Foreigners Act; Crime No.23/2020 for the offences under Section 420, 468, 417 r/w 34 of IPC and Section 14(c) of the Foreigners Act; Crime No.127/2019 for the offences under Sections 420, 468, 471 of IPC and Section 14(c) of the Foreigners Act; Crime No.2/2018 for the offences under Sections 420, 465, 468, 471 of IPC and Section 12 (1)(b) of the Passport Act; and Crime No.2/2018 for the offences under Sections 420, 465, 468, 471 of IPC and Section 12 (1)(b) of the Passport Act, were registered against the alleged detenus in subject W.P.Nos.6407, 10465, 10474, 31190 & 31199 of 2022 respectively, and they were arrested and remanded to judicial custody. Subsequently, all the alleged detenus were granted conditional bail by the Courts concerned. However, since the detenus are Myanmar nationals, the Director General of Police, Telangana, vide separate letters, requested the Government of Telangana to issue orders for detaining the alleged detenus in Central Prison, Cherlapally, Hyderabad, subject to the outcome of the criminal cases registered against them and further stated that if at all the detenus get acquittal in the crimes registered against them, they have to be detained till the deportation process is completed. The Government of Telangana, by exercising powers conferred by clause (e) of subsection (2) of Section 3 of the Foreigners Act, 1946 (‘Foreigners Act’, for brevity) read with Government of India Notification No.4/3/56 (1) F.I. dated 19.04.1958, vide S.O.590, issued separate Government Orders permitting the Director General of Police, Telangana State, Hyderabad, to detain the detenus at Central Prison, Cherlapally, Rangareddy District, under proper security, till their deportation process is completed with a further direc
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