IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.9.2008 CORAM THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN AND THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH Habeas Corpus Petition No.1203 of 2008 Sasikala .. Petitioner Vs. 1. State of Tamil Nadu rep. by its Secretary to Government Department of (S.C) Public Fort St.George, Chennai 600 009. 2. The Inspector of Police Pallikaranai Police Station Chennai. .. Respondents ----- Petition filed under Article 226 of the Constitution of India praying for a Writ of Habeas Corpus to call for the records in G.O.No.SR.III/416-9/2008 dated 4.7.2008 on the file of the 1st Respondent herein and quash the same as illegal and direct the respondents to produce the detenu Suresh Kumar, Son of Natesu before this Hon'ble Court, now confined at Central Prison, Puzhal and set him at liberty. ----- For Petitioner : Mr.R.Sankara Subbu For Respondents : Mr.P.Kumaresan Additional Public Prosecutor ----- O R D E R (Made by PRABHA SRIDEVAN,J.) The petitioner is the wife of Suresh Kumar, who has been allegedly detained under Section 3(2)(a) of the Foreigners Act. https://hcservices.ecourts.gov.in/hcservices/ 2. This is the second habeas corpus petition filed by this petitioner in respect of her husband Suresh Kumar. The petitioner was married to the alleged detenu in 1999. According to the petitioner, her husband has a valid passport and visa. The visa period is valid upto 30.3.2008. Her husband holds a Sri Lankan Passport vide Passport No.M2079087. He was taken into custody under the Passport Act in Crime No.1849 of 2007 and remanded to judicial custody. He was set free on bail from the Central Prison, Chennai. On 5.2.2008, an order was passed under Section 3 (2)(e) of the Foreigners Act and the petitioner's husband is now kept in Special Camp, Chengalpet. 3. According to the petitioner, the order of detention under Section 3(2)(e) of the Foreigners Act is unjust, illegal and contrary to the safe guard under Article 21 of the Constitution of India. The petitioner gave a representation on 7.2.2008 to the first respondent, without any success. The petitioner's husband moved Crl.O.P.No.6512 of 2008 for quashing the criminal proceedings in Crime No.1849 of 2007. This was allowed. On 30.4.2008, earlier habeas corpus petition was ordered by this Court (referred to hereafter as "earlier HCP"). Some paragraphs of the said order are relevant, which read thus: "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 https://hcservices.ecourts.gov.in/hcservices/ 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, ... (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, https://hcservices.ecourts.gov.in/hcservices/ 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 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, https://hcservices.ecourts.gov.in/hcservices/ 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. 4. Thereupon, the petitioner herself gave a representation on 8.5.2008. To this, the response was given by the first respondent on 4.7.2008 as follows: "The representation received from you has been considered and it is informed that your request could not be complied with." This is the cause of action for the present HCP. 5. The learned counsel for the petitioner would submit that any observation made in the earlier order cannot, in any way, affect the petitioner's right to challenge her husband's illegal detention in view of the fact that a subsequent cause of action had arisen. 6. The learned counsel for the petitioner referred to various provisions of the Foreigners Act. It would be apt to refer Section 3 of the Foreigners Act, which reads thus: "Section 3 Power to make orders:- (1) The Central Government may, by order, make provision, either generally or with respect to all https://hcservices.ecourts.gov.in/hcservices/ foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner,- (a) shall not enter India or shall enter India only at such times and by such route and at such port or place and subject to the observance of such conditions on arrival as may be prescribed; (b) shall not depart from India, or shall depart only at such times and by such route and from such port or place and subject to the observance of such conditions on departure as may be prescribed; (c) shall not remain in India or in any prescribed area therein; (cc) shall, if he has been required by order under this section not to remain in India, meet from any resources at his disposal the cost of his removal from India and of his maintenance therein pending such removal; (d) shall remove himself to, and remain in, such area in India as may be prescribed; (e) shall comply with such conditions as may be prescribed or specified:- (i) requiring him to reside in a particular place, (ii) imposing any restrictions on his movements, (iii) requiring him to furnish such proof of his identity and to report such particulars to such authority in such manner and at such time and place as may be prescribed or specified, (iv) requiring him to allow his photograph and finger-impressions to be taken and to furnish specimens of his hand writing and signature to authority and at such time and place as may be prescribed or specified, https://hcservices.ecourts.gov.in/hcservices/ (v) requiring to submit himself to such medical examination by such authority and at such time and place as may be prescribed or specified, (vi) prohibiting him from association with persons of a prescribed or specified description, (vii) prohibiting him from engaging in activities of a prescribed or specified description, (viii) prohibiting him from using or possessing prescribed or specified articles, (ix) otherwise regulating his conduct in any such particular as may be prescribed or specified. (f) shall enter into a bond with or without sureties for the due observance of as in alternative to a enforcement of any or all prescribed or specified restrictions or conditions. (g) shall be arrested and detained or confined; and make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may in the opinion of the Central Government be expedient or necessary for giving effect to this Act. (3) Any authority prescribed in this behalf may with respect to any particular foreigner make order under Cl.(e) or Cl.(f) of sub-section (2). 7. The learned counsel for the petitioner also referred to an order passed by a Division Bench of this Court in HCP No.278 of 2007. It was somewhat under similar circumstances. In that case, the alleged detenu was lodged in the Special Camp for Srilankan refugees. A counter affidavit was filed and the Bench held that the order passed under the Foreigners Act had proceeded under the assumption that the detenue was a Sri Lankan National. The relevant portions of the order read thus: "7. A fair reading of the said order clearly indicates that the authority which passed the order of detention has proceeded under the assumption that the detenu is a Sri Lankan National. The fact that the detenu is a British Citizen being the holder of GBR Passport No.302019733, is apparently not considered by the authority. It is no doubt true https://hcservices.ecourts.gov.in/hcservices/ that the Special Camp, as already found, is not exclusively meant for Sri Lankan National, but also can be used as Special Camp for other foreigners and as such any other foreigner can also be directed to stay within such Camp provided the other conditions contemplated under Sections 3(2)(e) are satisfied. However, a perusal of the impugned order indicates that the appropriate authority, namely, the State Government, has not at all considered the question as to whether the person to be detained was a Sri Lankan Passport-holder or a Great Britain Passport-holder. 8. In our considered opinion, it is relevant circumstance and by not considering this aspect at all, it can be said that there has been non- application of mind on the part of the authority concerned." 8. The learned counsel also referred to a decision in Hans Muller v. Superintendent, Presidency Jail, Calcutta (AIR 1955 SC 367) which also arose out of an order passed under the Foreigners Act as well as Preventive Detention Act. The Supreme Court, in this case, drew the distinction between the Extradition Act and the Foreigners Act. In particular, he pointed out paragraphs 40 and 41 of this case and submitted that the petitioner's husband does not wish to enter this country at all and that from the Camp he is willing to board the plane straightaway and leave for his home land. 9. The learned counsel also referred to a decision in Icchu Devi Choraria v. Union of India (1981 SCC Crl. 25), which reads as under: "... 4. It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions https://hcservices.ecourts.gov.in/hcservices/ pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the Court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: vide Niranjan Singh v. State of Madhya Pradesh; Shaikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bangal and Dulal Roy v. District Magistrate, Burdwan. It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act. It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition : vide Nizamuddin v. State of West Bengal. Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law: vide Mohd. Alam v. State of West Bengal and Khudiram Das v. State of West Bengal. ... " 10. The above decision was relied upon, in particular, to show that the Court should call upon the other side to file the counter and it is only on the basis of the pleadings, a decision could be arrived at. The learned counsel also relied upon a judgment of Andhra Pradesh High Court in Vincent Ferrer v. District Revenue Officer (AIR 1974 AP 313), wherein, Chinnappa Reddy,J, as he then was, held that an order restricting the movements of the petitioner arbitrarily and without applying its mind to the facts and in bad faith, is liable to be quashed. 11. The learned counsel for the petitioner also read out to us the representation that was made by him, which according to him was not at all considered by the authorities. The following paragraph from his representation is relevant to be referred: "... Thereafter, I moved a Writ of Habeas Corpus in H.C.P.No.157/2008 before the Hon'ble High Court, Chennai on two grounds namely Bail was granted on condition and the same was not considered and above all a genuine passport and visa holder of foreign origin cannot be treated as "Refugee" and the definition of "Refugee" is not applicable to my case as I was not persecuted by mother land Srilankan Government. Hence the refugee status and treatment of regulation is not applicable to my case. Above all I intend to leave the Indian soil as I already got a https://hcservices.ecourts.gov.in/hcservices/ return ticket even at the time of entry into India and I pray that I amy be deported to Srilanka on my own expense. However I moved the Hon'ble High Court, Chennai in Cri.O.P.No.6512/2008 based on the Chemical Analysis report which categorically held that my passport and visa are genuine. The Hon'ble High Court accepted my plea and quashed the charges in Crime No.1849/2007 on the file of the Inspector of Police, Pallikaranai on 17.4.2008. Hence I am no longer required in India and I renewed my plea before the Hon'ble Court in HCP No.157/2008 the Division bench of Chennai High Court had not taken cognizance of subsequent event after 27.12.2007. However the Hon'ble High Court, directed me to represent before your Honour to consider my case of permitting me to leave the country to reach Srilanka. The final order of High Court directed me to represent your Honour. I submit that I am innocent and genuine passport holder and visa. My case has been accepted and criminal case against me was quashed. In the circumstances to continue the order of detention under Section 3(2)(e) of Foreigners Act is no longer in existence on to-day and the same was quashed by the High Court. ... " 12. The learned Additional Public Prosecutor would submit that all these grounds were considered by the earlier Bench and the impugned order has also been passed and now, the petitioner cannot maintain a habeas corpus petition when the earlier Bench has held that the detention of the petitioner's husband in the Camp is not an illegal detention. 13. We have considered the rival submissions of both sides. 14. In the order passed in earlier HCP, the Division bench has held that an order passed under the Foreigners Act cannot be called as a preventive detention and that it is passed only in order to regulate the presence and movement of the detenu under the Foreigners Act. Therefore, the order by which the movement of the petitioner's husband was regulated and he was required to be kept in the Special Camp, as held by the earlier Bench, was held to be not a preventive detention order. If the petitioner is aggrieved by that decision, the petitioner should have appealed against it. The same issue cannot be raised before us without any fresh material. The representation given by the petitioner pursuant to the said order cannot be said to be a fresh material for deciding the legality of the order passed under the Foreigners https://hcservices.ecourts.gov.in/hcservices/ Act. The fact remains that the petitioner's husband is in the Sri Lankan camp, pursuant to the order passed under the Foreigners Act. There is a factual inaccuracy in the representation. It indicates that the order passed under the Foreigners Act has been quashed by the High Court. The High Court has not quashed it. What was quashed was the criminal proceedings in Crime No.1849 of 2007. 15. The question whether an order restricting the movement of the foreigners under Section 3(2)(e) of the Foreigners Act is preventive detention has been decided by this Court in Kalavathy v. State of Tamil Nadu (1995 (2) LW 692 Crl.), as observed in the earlier HCP filed by this petitioner. In Premavathy @ Rajathi v. State of Tamil Nadu (2004 (2) CTC 10), this issue came up and it has been dealt with in detail. In that case, the petitioners were Sri Lankan refugees and they were treated as foreigners under Section 3(2)(e) of the Foreigners Act. The counsel for the petitioners took a position that the placement of the petitioners in the Special Camp amounts to preventive detention. They also made allegations that their condition in the Special Camp is pathetic and they are forced to live in inhuman conditions and that they are not allowed to mix with the society, nor even allowed to attend important functions like marriages, illness of the relatives etc. It was contended that the international conventions to which India is a signatory has been violated. 16. All the important cases arising out of the Foreigners Act were cited and considered including Hans Muller case, which has been cited before us. The Division Bench came to the conclusion, after considering the dismissal of the SLP against Kalavathy case, that "this would, therefore, be a clear approval of Kalavathy's judgement and would have a binding effect under Article 141 of the Constitution", and that "undoubtedly, the said decision would be binding only if it is a law declared and, in our opinion, it is clearly a declared law, holding that even if a foreigner, who has a bail order in his favour, is put in the Special camp, it would not amount to a preventive detention". And while considering the scope of the National Security Act and the Foreigners Act held that "one is a mere regulation of the movement while, the other is a preventive detention". Therefore, the finding in the earlier HCP that the order passed under Foreigners Act is not one of preventive detention cannot be put in issue before us. 17. According to the petitioner, in the earlier HCP, the Court had not taken notice of the order passed on 17.4.2008 in Crl.O.P.No.6512 of 2008. This is not