IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.03.2011 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.22683 OF 2010 Velu Nadesan Gobinath ... Petitioner rep. by its power agent Thamayanthi Deepakumar Vs. 1.The Secretary, Ministry of External Affairs, New Delhi. 2.The Immigration Officer, (MHA), Govt. of India Chennai Airport, Chennai-27. 3.The Immigration Officer, (TRY) Govt. of India, Tiruchy Airport, Tiruchy. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus, to direct the respondents to dispose of the petitioner's representation dated 25.9.2010 within such time fixed by this Hon'ble Court. For Petitioner : Mr.P.Vajra Velu For Respondents : Mr.A.S.Vijayaraghavan, SCGSC O R D E R The petitioner has filed the present writ petition seeking a direction to the respondents to dispose of his representation dated 25.9.2010 within the time limit framed by this Court. 2.When the matter came up on 18.1.2011, this Court directed the respondents to file counter affidavit. Accordingly, the Assistant Director of Bureau of Immigration, (MHA), Govt. of India, Chennai has filed counter affidavit dated 21.2.2011. https://hcservices.ecourts.gov.in/hcservices/ 3.In the representation filed by the petitioner, it was stated that the petitioner is the power agent of her brother by name Velu Nadesan Gopinath who is a Srilankan citizen. In the representation sent on his behalf, the petitioner has requested the Government of India to give appropriate directions to the authorities concerned to issue visa in favour of the petitioner and it was stated therein that he has already made representation to the Indian High Commissioner at Colombo. 4.In response to the prayer of the petitioner, the first respondent filed counter affidavit and in para 4 of the counter affidavit, it is averred as follows: 4.The petitioner/Velu Nadesan Gopinath was apprehended by the Chennai Airport Customs authorities at Chennai International Airport on 11.11.2009 for clandestinely smuggling into India gold worth Rs.4,14,050/-. A case was registered against him under Sections 111(d), (l) and (m) of the Customs Act 1962 and he was convicted and fined Rs.25,000/- upon his pleading guilty. As the petitioner/Velu Nadesan Gopinath violated the law of the land by indulging in smuggling activities it was necessitated to prevent his further entry into the Country. Accordingly, an order preventing his further entry into India was issued by the Competent Authority on 24.2.2010 as per the powers vested in it under Section 3(20(e) of the Foreigners Act, 1946 read with Section 3(2) of the Foreigners Rules, 1948. 5.The short question that arises for consideration herein is as to whether the representation submitted by the petitioner seeking visa, can be directed to be considered. 6.The right of the foreigners in terms of the Foreigners Act came to be considered by the Supreme Court in Sarbananda Sonowal v. Union of India and another case reported in (2005) 5 SCC 665, wherein, in para 78, the Supreme Court has held as follows: "78.In Louis De defendant Raedt v. Union of India, the two foreign nationals engaged in missionary work had come to India in 1937 and 1948 respectively with proper documents like passport and visa, etc and were continuously living here but by the order dated 8.7.1987 their prayer for further extension of the period of stay was rejected and they were asked to leave the country by 31.7.1987. They then challenged the order by filing a writ petition. This court held that the power of the Government of India to expel https://hcservices.ecourts.gov.in/hcservices/ foreigners is absolute and unlimited and there is no provision in the Constitution fettering its discretion and the executive government has unrestricted right to expel a foreigner. So far as right to be heard is concerned, there cannot be any hard-and-fast rule about the manner in which a person concerned has to be given an opportunity to place his case". 7.The issue raised herein also came to be considered by the Supreme court in the subsequent judgment in Sarbananda Sonowal (II) v. Union of India case reported in (2007) 1 SCC 174, wherein, in para 49, it is observed as follows: "49.It may be true that different procedure has to be applied in regard to a person who is still in the foreign soil and those who are in the Indian territory as has been held in shaughnessy, District Director of Immigration and Naturalization v. United States ex rel Mezei and Zadvydas v. Davis whereupon Mr.Venugopal placed strong reliance, but the said question does not arise in the instant case". 8.Since the petitioner is not belonging to soil of India, the Supreme court has categorically held that in such circumstances, the right of the petitioner will not arise for consideration. It is the absolute right of Government of India to prevent the offender to enter India. Hence, no direction much less to consider the representation for issuing visa to enter India to the petitioner can be granted and no case has been made out by the petitioner. 9.In the result, the writ petition stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rkrk To 1.The Secretary, Ministry of External Affairs, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 2.The Immigration Officer, (MHA), Govt. of India Chennai Airport, Chennai-27. 3.The Immigration Officer, (TRY) Govt. of India, Tiruchy Airport, Tiruchy. 1 cc To Mr.P.Vajravelu, Advocate, SR.19642 1 cc To Mr.A.S.Vijayaraghavan,, Advocate, SR.19405 W.P.NO.22683 OF 2010 ts(co) pmk.30.3.2011 https://hcservices.ecourts.gov.in/hcservices/