GAHC010283162025

2026:GAU-AS:483-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/7358/2025

AWAL ALI ALIAS MD. AWAL HUSSAIN

S/O- SHAH ALOM, PERMANENT ADDRESS- VILL AND P.O. MAGURMARI,

P.S. RUPAHIHUT, DIST. NAGAON, ASSAM, PRESENT ADDRESS- VILL.-

RONGPUR CHARIALI, P.O., P.S. AND DIST. SIVASAGAR, ASSAM

VERSUS

THE UNION OF INDIA AND 3 ORS

REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY

OF HOME AFFAIRS, SASTRI BHAWAN, NEW DELHI-110001.

2:THE STATE OF ASSAM

REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM

HOME AND POLITICAL DEPARTMENT

DISPUR

GUWAHATI-06.

3:THE DISTRICT COMMISSIONER

SIVASAGAR

ASSAM

PIN- 785640.

4:THE SUPERINTENDENT OF POLICE

SIVASAGAR

ASSAM

PIN- 785640

Advocate for the Petitioner : MR H R A CHOUDHURY, J M SULAIMAN

Advocate for the Respondent : DY.S.G.I., GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE ANJAN MONI KALITA

ORDER

08.01.2026 Date :

(K.R. Surana, J)

Heard Mr. J.M. Sulaiman, learned counsel for the petitioner.

Also heard Ms. S. Katakey, learned CGC; Mr. J. Payeng, learned standing counsel for the FT, Mr. G. Sharma, learned standing counsel for NRC, and Mr. H.K.

Hazarika, learned Junior Govt. Advocate.

2) The petitioner namely, Awal Ali @ Md. Awal Hussain was declared to be a foreigner, who had entered Assam illegally after 24.03.1971 and thus, liable to be sent back with further direction that he be taken into custody and kept as internee under Section 4 of the Foreigners Act, 1946 in an appropriate case till he is pushed back. The petitioner had unsuccessfully assailed the said opinion before this Court by filing WP(C) 2808/2017, which was dismissed by the Division Bench of this Court vide judgment and order dated 04.09.2017. The petitioner had thereafter, approached the Supreme Court of India and the Supreme Court of India vide order dated 05.03.2019, passed in Special Leave Petition (Civil) Diary No. 6609/2019, though condoned the delay, but expressing disinclination to interfere with the order, the said Leave Petition was dismissed.

3) From the statements made in the writ petition, it appears that the petitioner was taken into custody. However, in view of the COVID-19 pandemic, he was released on bail. It is projected that the petitioner has not misused the bail. However, on 24.05.2025, he was again taken into custody and is presently lodged at the Transit Camp, Matia, Goalpara.

4) The petitioner has filed an application before the Secretary to the Govt. of Assam, Home & Political Department for allowing the petitioner to go on bail. However, as no action has been taken on the said representation, the present writ petition has been filed under Article 226 of the Constitution of India.

5) While the learned counsel for the petitioner has pressed his prayer for releasing the petitioner on bail, the learned standing counsel for the FT and Border matters has opposed the prayer made in the present writ petition.

6) At the outset, it may be stated that once a person has been declared to be a foreigner, who has illegally entered into India without any documents by virtue of opinion rendered by the Foreigners Tribunal having jurisdiction, upon reference made by the competent authority, the Secretary to the Govt. of Assam, Home & Political Department is not vested with any authority in law to grant bail to such illegal migrant. Therefore, as the petitioner had submitted a representation dated 29.10.2025 to the Secretary to the Govt. of Assam, Home & Political Department purportedly on 03.11.2025, who does not have power or jurisdiction to grant bail to the petitioner, this writ petition would not be maintainable as no direction can be issued to direct the respondent authorities to release the petitioner on bail.

7) Therefore, the Court is inclined to examine as to whether the petitioner has been able to make out any case for this Court to exercise extraordinary jurisdiction under Article 226 of the Constitution of India to direct the respondent auth