IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.04.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH H.C.P.No.157 of 2008 Sasikala W/o Sureshkumar .. Petitioner -Vs- 1. The State of Tamil Nadu rep.by its Secretary to Government Department of (SC) Public Fort St.George Chennai 600 009 2. The Secretary to High Commissioner of Srilankan Embassy No.196, T.T.K.Road Behind Chozha Hotel Alwarpet, Chennai 600 018 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Habeas Corpus, to call for the records in G.O.No.SR.III/3505-2/2007 dated 27.12.2007 on the file of Public (SC) Department, the first respondent herein and quash the same as illegal and direct the first respondent to produce the detenu Suresh Kumar, son of Natesu now confined at Special Camp at Chengleput before this Hon'ble Court and set him at liberty. For Petitioner :: Mr.R.Sankarasubbu For Respondents:: Mr.M.Babu Muthu Meeran Addl. Public Prosecutor for R1 ORDER (Order of the Court was delivered by D.MURUGESAN, J.) The petitioner is the wife of one Sureshkumar, S/o Natesu, the detenu, who has been detained under Section 3(2)(e) of Foreigners Act, 1946 (Central Act 31 of 1946) to regulate his detention by detaining him in the Special Camp at Chenglepet by https://hcservices.ecourts.gov.in/hcservices/ the first respondent in G.O.No.SR.III/3505-2/2007, Public (SC) Department dated 27.12.2007. According to the petitioner, she is an Indian citizen and she had married the said Sureshkumar during the year 1999 and the marriage was also duly registered in the year 2003. Her husband, the detenu, is in possession of valid passport and visa upto the period 30.3.2008. In order to support the petitioner to take medical treatment at Edapal Infertility Centre from time to time, he used to come to Chennai. While so, on 1.2.2007, when he stayed in his relatives house at Door No.76, First Street, Sankarapuram, Chitlapakkam, Pallikaranai police limits, he was taken into custody under the Passport Act in Cr.No.1849 of 2007 on the file of the Inspector of Police, Pallikaranai Police Station and was remanded to judicial custody by the learned Judicial Magistrate, Alandur. He was released on bail on 5.2.2008 but, even in front of the Central Prison, Puzhal, he was served with the impugned order and the same was executed. Thereafter, he was taken to Special Camp, Chenglepet. Therefore the impugned order is unjust, illegal and violative of Article 21 of the Constitution of India and though a representation dated 7.2.2008 was made, the same is of no avail. Hence the present petition. 2. Mr.R.Sankarasubbu, learned counsel for the petitioner submitted that there is no dispute that the detenu has a valid passport and he entered into India with a visa valid upto 30.3.2008 and though a case in Cr.No.1849 of 2007 on the file of Pallikaranai Police Station was registered against him for the offence punishable under Section 12(1)(A) of the Passport Act and Sections 472, 473, 475 read with 120-B and 109 of the Indian Penal Code, the said First Information Report was quashed by this Court in Crl.O.P.No.6512 of 2008 by order dated 24.3.2008. Hence the learned counsel would submit that when the very basis of the impugned order detaining the detenu in the Special Camp does not survive, the impugned detention order is liable to be quashed. 3. Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor for the first respondent, on the other hand, would submit that though the detenu has a valid passport and entered India with a visa, he was found in the company of some of the other accused in Cr.No.1849 of 2007 preparing forged passport and visas apart from possessing foreign currencies. Hence in order to regulate his presence in India, he has been detained in the Special Camp by the impugned order. He would also submit that the Government is entitled to regulate the presence of a foreigner and the only requirement is that there must be some material for such order. Merely because the case registered against the detenu is quashed, that cannot be a ground for the detenu to now plead that the detention order is liable to be set aside and he should be set free. The learned Additional Public Prosecutor has also submitted that questioning the order passed in Crl.O.P.No.6512 of 2008, a Special Leave Petition is also filed before the Supreme Court and the same is pending. Hence it will not be justifiable to interfere with the order of detention. https://hcservices.ecourts.gov.in/hcservices/ 4. We have carefully considered the submissions of the respective counsel. The power of the Government to issue the detention order under Section 3(2)(e) of the Foreigners Act is by now well recognised by the Courts. The orders passed under the said provision of the Foreigners Act are only to regulate the presence and movement of the foreigners and such orders cannot be equated to an order passed under the preventive laws by keeping the detenu in custody. While considering the proceedings in the habeas corpus petitions filed in challenging the orders to regulate the presence and movement of foreigners, the approach of the Court must be objective taking into account of all the relevant circumstances and considerations in order to strike a balance between the need to protect the community on the one hand and the need to preserve the liberty of a citizen on the other hand. In the judgment in Kalavathy v. State of Tamil Nadu etc., (1995) 2 L.W.(Crl.) 690(2), it has been observed as follows:- "This is a power which every Government must possess over foreigners, whose presence may be, or may in the course of time, become dangerous to the security of the administration or undesirable for other reasons. Since such reasons may be many and may arise on account of political or other considerations, too numerous to define, the Legislature could not have visualized all the eventualities." The proper consideration for imposing the impugned order to regulate the presence of the detenu must be judged with reference to the materials which were placed before the detaining authority and as to whether the detaining authority was justified in passing the impugned order. In paragraph-6 of the counter affidavit, the detaining authority has given the reasons, which read as follows:- "6. With regard to the averments made in paragraph 5 of the affidavit, it is respectfully submitted as follows:- (i) On information, a raid was conducted by the police on 01.12.07 at about 2200 hrs., at No.76, Sankarapuram 1st Street, Chithalapakkam, Chennai-73 and found seven Sri Lankan Tamils, viz., 1) N.Sureshkumar (30), S/o Natesu, Puloly, Point Petro, Sri Lanka, 2) N.Manoramanan (30), S/o V.Natarasa, No.26, Edman Done Road, Girulapone, Colombo, Sri Lanka, 3) P.Gajendran (30) S/o Parameswaran, Sirupiddy West, Neerveli, Jaffna, Sri Lanka, 4) S.Sivakumar (28), S/o Sinnaiyan, Kodikamam, Jaffna, Sri Lanka, 5) T.Rajenthiran (22) S/o V.Thambu, Meesali North Kodikammam, Jaffna, Sri Lanka, 6) S.Maheswaran (31) S/o Sinnarasu, Masiyapaddi, Sempalibai, https://hcservices.ecourts.gov.in/hcservices/ Jaffna, Sri Lanka, 7) Senthilnathan (30), S/o Selvaratnam, No.13, Kulavadi Lane, Anaiguddai, Jaffna, Sri Lanka staying in the above said address. On searching the above residence, the following things were found therein (i) Open Astra Car bearing Regn.No.TN 01 4039, (ii) Emergency Travel Document, (Norway 26 Nos.) (iii) Letter pads of 1) Harstadorway (Export & Import Company), 2) Embassy Republic of the Fuji Islands, 3) Embassy of Denmark, 4) The Deputy High Commissioner for the Democratic Socialist Republic of Sri Lanka in Southern India, 5) Royal Norvegian Embassy and 6) Emergency travel document, (iv) Acknowledgments from Police Inspector, Immigration, International Airport, Bangalore, (v) Visiting Card Album 1 No. (vi) Sim card 4 nos. And memory card, (vii) Royal Norvegian Embassy postal cover, (viii) Sri Lankan ID-1 1) Natanasa, Attchuvelli Street, Attchuvelli, 2) Natesa Suresh Kumar, Boololo South, Boololi, Point Petro, 3) Sellaiya Subhakaran, Bookkaira, Nalaiaya Veethi, Colombo- 6, 4) Chinnarasa Maheswaran, Kompanipulam, Mahiyapitti (ix) Diary-2002-1 no. (x) Dry seal machine-3 nos. (Harstad-2) Danish Embassy-1 (xi) Stamp Pad small size-2 nos., (xii) UV Lamp-2 nos., (xiii) Passports viz. 1) Passport No.N1895713 Chandrakumar, (overstay), 2) Passport No.N 1608602 Jayalatheeswaran (overstay), 3) Passport No.N 1431382 Senthil Nathan (damaged), 4) Passport No.M 2192917, Maheswaran (overstay), 5) Passport No.M 2079089, Suresh Kumar (Visa expiry on 31.3.2008), 6) Passport No.M 2020259, Lal Kumara (without visa with fresh seal in page No.23), 7) Passport No.N 1234397 Rajendiran (overstay) and 8) Passport No.M 1191980 Sinniaiyan (overstay) 9) Indian Passport No.F 0911838 Sunderraj Thangachiammal (xiv) visas viz., 1) New Zealand Resident Permit-3 nos. and 2) Norway resident permit-1 no. (xv) Seals viz.,1) FRRO, BOI, Chennai stay extension, 2) Danish Embassy, 3) Endorsement (Sri Lankan Passport Office), 4) Democratic Socialist Republic Srilanka Oslo Norway, 5) Temporary entry visa, Immigratic Bosaso, 5) Embassy of the Republic of Fiji islands, 7) passknonjtroller Osoufthan - Norge, (xvi) Empty money purses-4 nos., (xvii) US dollars 100 x 10 nos.and (xviii) cash Rs.3,24,000/-. They were seized under cover of mahazar and a case in S-10 Madipakkam PS Cr.No.1849/2007 under sections 12(1)(3)1(A) of the Passports Act, 1967 (Central Act 15 of 1967) and Sections 472, 473, 475 read with 120(B), 109 IPC was registered on 1/2.12.2007. https://hcservices.ecourts.gov.in/hcservices/ (ii) On enquiry, it is revealed that the above mentioned persons were indulged in preparing fake and forged documents and visas by using fake seals of various Embassies and also distributing them to others and all the above mentioned were seized and all A-1 to A-7 Sri Lankan Tamils were arrested. One Govindaraj, aged 49, S/o Velayutham, residing at No.3/421 Pandian Salai, Neelankarai, Chennai-41, the house owner who rented the said house to the said Sri Lankan Tamils and P.Ramamoorthy, aged 25, S/o Balakrishnan, Machine Road, Manjakuppam, Cuddalore, driver of Opal Astra car bearing Regn.No.TN 01 V 4038 were also arrested in this case. In this connection, all the accused A1 to A9 were arrested on 02.12.2007 at 0600 hrs., and they were produced before the Honourable Judicial Magistrate Court, Alandur, Chennai and they were lodged at Central Prison, Puzhal, Chennai for judicial custody. The absconding accused Sri Lankan Tamil Selvam @ Sriranjan, S/o Sriskandaraja was arrested at Chithalapakkam, Chennai on 24.12.2007 and remanded to judicial custody." 5. From the above, it is seen that the detenu with the authentication of a valid passport had entered into India and having been implicated in an offence of serious nature which required in the opinion of the detaining authority to regulate his continued presence in India. On facts, at the time when the impugned order was passed viz., on 27.12.2007, a case in Cr.No.1849 of 2007 was registered against the detenu and on which basis the impugned order came to be passed. 6. In order to judge the satisfaction of the authority to pass the impugned order under Section 3(2)(e) of the Foreigners Act, the relevant consideration would be the materials which were available on the date of the order and not the subsequent development. Of course, much was argued by the learned counsel for the petitioner that in view of the subsequent order of this Court in quashing the First Information Report, the very substratum or cause for the impugned order does not survive. But that principle may not be applicable in a case of an order passed under the Foreigners Act in order to regulate the presence and movement of a foreigner and taking the interest of the nation as a whole. That apart, the said order is now under challenge before the Supreme Court. As the impugned order cannot be called as preventive detention and it has been held that it is passed only in order to regulate the presence and movement of the detenus under the Foreigners Act and the same can be made without there being any specific case pending against him, but in the opinion of https://hcservices.ecourts.gov.in/hcservices/ the Government based on the information received through intelligence sources the presence of a foreigner and the movement of a foreigner should be regulated, an order under the Foreigners Act could be sustained. Hence the contention of the learned counsel for the petitioner that in view of the subsequent order of this Court in quashing the First Information Report, the detenu is entitled to the benefit of the said order and can seek for quashing the impugned order cannot be sustained. Moreover, the visa with which the detenu entered into India had already expired on 30.3.2008 shows that as on today, there is no valid visa. However, Mr.R.Sankarasubbu, learned counsel for the petitioner has submitted that even at the time when the detenu had entered into India with the valid passport and visa he had obtained the return ticket, which shows that he intends to go back to his native country even before the visa expired. As we are concerned with an order passed under the Foreigners Act in regulating the presence and movement of a foreigner, a mere fact that the detenu had obtained a return ticket will not in any way infringe the mind of the detaining authority to pass the impugned order to regulate the presence and movement of the detenu. 7. For all the above reasons, the habeas corpus petition fails and it is dismissed. Mr.R.Sankarasubbu, learned counsel for the petitioner has submitted that as the visa period is already over, the detenu is entitled to leave India and therefore he may be given liberty to approach the Government by way of representation. It is needless to mention that if the detenu intends to make such a representation and if such a representation is received, it will be considered by the Government on its own merits and appropriate orders will be passed in accordance with law within a period of two months from the date of receipt of such representation from the detenu. ss Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Secretary to Government of Tamil Nadu Public (SC) Department Fort St.George Chennai 600 009 https://hcservices.ecourts.gov.in/hcservices/ 2. The Secretary to High Commissioner of Srilankan Embassy No.196, T.T.K.Road Behind Chozha Hotel Alwarpet, Chennai 600 018 3. The Public Prosecutor High Court, Madras 1 cc to M/s.R.Sankarasubbu, Advocate, sr.25977 KSK (CO) dv/6.5. H.C.P.No.157 of 2008 https://hcservices.ecourts.gov.in/hcservices/