Karnataka High Court
Mr Uzowum Chickdwum Levonus @ Livousa vs State Of Karnataka on 29 April, 2025
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WPHC No.34/2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE T.M.NADAF
WPHC NO. 34/2025
BETWEEN:
MR. UZOWUM CHICKDWUM LEVONUS @ LIVOUSA,
S/O CHICKDWUM,
AGED ABOUT 32 YEARS,
R/AT SITE NO. 3/2,
THIRTHESH REDDY BUILDING,
LAKSHMISAGARA VILLAGE,
NERALURU POST, ATHIBELE HOBLI,
ANEKAL TALUK,
BENGALURU DISTRICT - 562107.
NIGERIAN NATIONAL
(NOW IN ILLEGAL CUSTODY OF R3)
...PETITIONER
(BY SRI. HASHMATH PASHA, SENIOR COUNSEL FOR
SRI. KARIAPPA N A, ADVOCATE)
AND
1. STATE OF KARNATAKA,
PRINCIPAL SECRETARY,
DEPARTMENT OF HOME,
KARNATAKA GOVT. SECRETARIAT,
VIDHANA SOUDHA,
BANGALORE - 560001.
2. THE COMMISSIONER OF POLICE,
BANGALORE CITY,
OFFICE AT INFANTRY ROAD,
BANGALORE - 560020.
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WPHC No.34/2025
3. STATE OF KARNATAKA
BY CCB POLICE,
ANW SUB DIVISION,
BANGALORE CITY - 560027.
4. THE CHIEF SUPERINTENDENT,
CENTRAL PRISON,
PARAPPANA AGRAHARA,
BANGALORE - 560100.
5. COMPETENT AUTHORITY AND
REGISTRATION OFFICER,
FOREIGNERS REGIONAL REGISTRATION
OFFICE (FRRO),
OFFICE AT 5TH FLOOR, 'A' BLOCK,
TTMC BMTC BUS STAND BUILDING,
KENGAL HANUMANTHAIAH ROAD,
NGO COLONY, SHANTI NAGAR,
BENGALURU - 560027.
...RESPONDENTS
(BY SRI. B A BELLIAPPA, SPP A/W SRI. THEJESH P, HCGP FOR R1 TO R4, SRI. H SHANTHI BHUSHAN, DSGI FOR R5) THIS WP(HC) IS FILED UNDER ARTICLE 226 OF CONSTITUTION OF INDIA, BY THE PETITIONER, WHEREIN PRAYS THAT THE HON'BLE COURT MAY BE PLEASED TO ISSUE A WRIT OF HABEAS CORPUS OR A WRIT OR ORDER OR DIRECTION OF APPROPRIATE IN NATURE WITH A DIRECTION TO THE RESPONDENTS TO PRODUCE HIM BEFORE THIS HONBLE COURT AND CONSEQUENTLY TO RELEASE HIM FROM ILLEGAL DETENTION FORTHWITH IN THE INTEREST OF JUSTICE, ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.04.2025, COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, V KAMESWAR RAO J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND HON'BLE MR JUSTICE T.M.NADAF -3- WPHC No.34/2025 CAV ORDER (PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO) This petition filed by the petitioner has been amended to seek the following prayers:
"PRAYER Wherefore, the Petitioner most humbly prays that this Hon'ble Court be pleased
1. to issue a Writ of Habeas Corpus or a Writ or Order or direction of appropriate in nature with a direction to the Respondents to produce him before this Hon'ble Court and consequently to release him from illegal detention forthwith in the interest of Justice.
2. to grant such other relief or relief as this Hon'ble Court deems fit to grant in the facts and circumstance of the case, in the ends of Justice.
ADDITIONAL PRAYER Wherefore the petitioner most humbly prays that this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ or Order of Appropriate in nature to Quash the letter dated 28-3-2025 issued by ACP of Respondent. No.3 as per ANNEXURE-'A' and also to quash the Order of detention in deportation centre passed by Respondent No.5 dated 28-3-2025 as per ANNEXURE-'B' as an abuse of process of law and consequently to release the Petitioner from deportation centre unconditionally, in the ends of Justice."-4- WPHC No.34/2025
2. The case of the petitioner in the amended petition is primarily to quash the letter and order both dated 28.03.2025 issued/passed by the respondents No.3 and 5 respectively.
Submissions:
3. The case of the petitioner as submitted by Sri. Hashmath Pasha, learned Senior Counsel for the petitioner is that, the petitioner was arrested on 23.10.2024 in Crime No.59/2024 of CCB Police, Bengaluru City for offences under Sections 8(c) and 22
(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) with the allegation of possessing MDMA narcotic drug. At the time of arrest, he was not informed the reasons and grounds of arrest, which is required under Article 22(1) of the Constitution of India and accordingly, he filed a criminal petition under Section 528 of BNSS before this Court being Criminal Petition No.4000/2025 alleging on the non-communication of grounds of arrest, his arrest is illegal. According to him, this Court, vide order dated 27.03.2025, had allowed the criminal petition and -5- WPHC No.34/2025 directed the Prison Authorities to release him from prison forthwith. He do state that there was an observation made by this Court in the order that since the petitioner is a foreign Nigerian national, the competent authority under Rule 3 of Foreigners Rules to take steps for monitoring his movement. He submitted that, on the receipt of the order on 28.03.2025, respondent No.4- Prison Authorities had released the petitioner officially, respondent No.3-Policemen had gone inside the prison and apprehended the petitioner and taken him to an unknown place and detained somewhere. This according to him, is an illegal detention. He also stated, even if the petitioner is detained in a Deportation Centre, the same is also illegal when he has been released from judicial custody from the case, the respondent No.3-Police cannot frustrate the order of this Court which has been referred to above. That apart it is his submission that, the order passed by this Court is not a bail order, but an order of release because of the non-compliance of provisions under Article 22(1) of the Constitution. In support of his submission, he has relied upon the -6- WPHC No.34/2025 judgment of the Supreme Court in the case of Vihaan Kumar -Vs.- State of Haryana and Another [2025 SCC OnLine SC 269]. That apart it is his submission that, on receipt of letter dated 28.03.2025 from respondent No.3, respondent No.5 has mechanically passed an order of detention to detain the petitioner in Deportation Centre on 28.03.2025. Respondent No.5 is expected to conduct an enquiry. That apart, no opportunity of hearing was given to the petitioner to detain him in the Deportation Centre. In fact in the order dated 27.03.2025, this Court has specifically stated that, the respondent No.3 has to inform the Registration Officer about the release of the petitioner. They are not permitted to re-arrest and produce the petitioner before respondent No.5. In fact, he has also stated that, if the petitioner has been detained under preventive detention, he has right to know the reasons and grounds of arrest. It is also his submission that, even if the petitioner has been put in the Deportation Centre, the same is nothing but a prison. Sri. Pasha denied the allegation of the respondent No.5 that the petitioner has overstayed in the -7- WPHC No.34/2025 country illegally. He do concede that the petitioner's passport had expired on 26.05.2020; he could not get renewed, because his passport was surrendered to the custody of the City Civil and Sessions Court, Greater Bombay on 05.05.2018. He has stayed in India because of pending of criminal case. Though he has stayed in India since 04.09.2015, but he had not overstayed. The submission of Sri. Pasha is, he has come to Bengaluru because of his friend by name Chuku Noso invited him to visit Bengaluru. While so residing in Bengaluru at Lakshmisagar Village near Attibele, Anekal Taluk, on 18.10.2023, the CCB Police took his friend and him. They detained him illegally from 18.10.2024 to 23.10.2024 in CCB Unit. On 23.10.2024, the CCB Police have falsely implicated him in the NDPS case, which is numbered as Crime No.59/2024. In substance, it is his plea that, respondent No.5 cannot justify the act of passing mechanical order by showing certain provisions under Foreigners Act, 1946 ('the Act' for short). The procedure contemplated under Section 3(2)(e) ought to have been complied before passing the order. His -8- WPHC No.34/2025 submission is also that, there are many modes of restrictions and those kinds of restrictions are from Section 3(2)(e)(i) to (ix), (f) and (k); arrest and detention is the last resort. He has also relied upon the following judgments:
(a) Judgments of the Supreme Court in the cases of:
i. State of Punjab -Vs.- Davinder Pal Singh Bhullar and Others [(2011) 14 SCC 770]; ii. Ana Parveen and Another -Vs.- Union of India and Others [Writ Petition (Criminal) No.43/2022, decided on 29.04.2022]; iii. Frank Vitus -Vs. Narcotics Control Bureau and Others [(2025) 3 SCC 1];
(b) Judgments of the Delhi High Court in the cases of:
i. Charles Kingsley Okokaso -Vs.- State (NCT of Delhi) [Cr.A.288/2023, decided on 19.07.2023];
ii. Emechere Maduabuchkwu -Vs.- State NCT of Delhi and Anr. [WP (Crl.) 550/2022 and WP (Crl.) 827/2022, decided on 26.05.2023];
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(c) Judgment of the Madras High Court in the case of Yogeswari -Vs.- The State of Tamil Nadu and Another [2003 SCC OnLine Mad 1212].
4. On the other hand, Sri. B.A.Belliappa, learned SPP for respondents No.1 to 4 would submit that, the submissions made by Sri. Pasha are totally misconceived. He stated that, on release of the petitioner from Central Prison, the petitioner was secured by respondent No.3 and produced before the Competent Authority (FRRO) with a request to initiate appropriate proceedings in terms of the order dated 27.03.2025 in Criminal Petition No.4000/2025. He denied the averments made by the petitioner that the respondent No.3 has taken the petitioner into custody from the Central Prison. It is his submission, after the release of the petitioner the petitioner was secured and produced before the Competent Authority i.e., respondent No.5 on the bonafide belief that the petitioner was to be produced before the Competent Authority in terms of the order dated 27.03.2025. In support of his submissions, he has relied upon the judgment of the Supreme Court in the
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WPHC No.34/2025case of Frank Vitus (supra) and the judgment of the High Court of Bombay at Goa in the case of Mr. Innocent Amaeme Maduabuchukwi -Vs.- State of Goa and Others [LD-VC-CRI-7-2020, decided on 10.07.2020], more specifically paragraph No.42, wherein the Court had referred to the judgment of the Madras High Court, wherein it is held that, "... ... any direction requiring a foreigner who has no valid travel documents or any subsisting right to remain in India to reside in special camp or detention centre, does not amount to arrest or detention of such person. Rather, such orders are relatable to exercise of powers under Section 3(2)(e) of the said Act and Paragraph 11 of the Foreigners Order, 1948. ... ... "
5. Sri. H.Shanthi Bhushan, learned DSGI for respondent No.5 would state that, certain facts which have not been highlighted by Sri. Pasha are required to be highlighted. According to him, the petitioner is a Nigerian national holding a passport No.A06688745 (valid till 26.05.2020), arrived India on 04.09.2015 on a Entry Visa (Conference) No.VJ3724277, which expired on 08.09.2015. He overstayed in the country from
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09.09.2015 to 26.08.2020 and he is currently staying illegally in India since 27.05.2020 on the expiry of his passport. He had never approached FRRO for registration of his presence in India. He is a habitual offender and is found engaged in drug peddling on multiple occasions.
He is charge-sheeted under various sections pertaining to narcotics/drug peddling activities twice first by Anti-
narcotic Cell, Worli Unit, Mumbai in Crime No.14/2018 and second by Narcotics Drug Squad, CCB Police Station, Bengaluru in Crime No.59/2024. He has violated bail condition prescribed by XLII Addl. Sessions Judge, City Civil and Sessions Judge, Greater Bombay. During the bail, he was found engaged in similar activity by Bengaluru Police. The petitioner is a foreigner with suspicious background. His further involvement in the same act cannot be ruled out unless a close watch is maintained on him. Sri. Bhushan also stated that, on 28.03.2025, the petitioner was produced by the Police Inspector, CCB (ANW) Police Station, Bengaluru upon his release from the Central Prison for issuance of restriction order under Section 3(2)(e) of the Act. The petitioner is
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housed in Foreigner Restriction Centre for Male, Sondekoppa, Nelamangala Taluk, Bengaluru vide order dated 28.03.2025. A communication about his movement restriction in FRC was sent to Ministry of External Affairs by respondent No.5 vide letter dated 01.04.2025 to inform the concerned Embassy about restriction of the petitioner. He justifies the petitioner's movement restriction in terms of the powers vested in FRRO Bengaluru in pursuance of Central Government Notification dated 11.09.2019 and also under clause (e) of sub-section (2) of Section 3 of the Act and under para 11(2) of the Foreigners Order, 1948.
5.1. Sri. Bhushan, by drawing our attention to second paragraph of the order dated 28.03.2025, justifies the same as there is every likelihood that the petitioner may disappear and indulge in undesirable activities, if not kept under close watch. He stated that, the violations of provisions of the Act is a continuing offence and if on being released from the judicial custody after being tried for contraventions of national laws
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committed in past, while facing those charges, the same person can be placed in executive restriction by the Civil Authority. He highlighted the fact which has been noticed during the criminal trial that the foreign nationals often violate not only terms of visa, but also the conditions of bail and become untraceable and later found to be involved in the similar illegal activities for which they were facing trial. He also highlighted the fact that, there are instances where foreign nationals deliberately get themselves involved in one or other criminal activity just to avail this service, so that they could continue their stay in India by using this technicality for their ulterior motives. They also pose a serious threat to the national security as well. According to Sri. Bhushan, in the instant case, the foreigner's name is changed. His original name as per passport is Uzowuru Livinus Chukwudum, while he is known as Uzowum Chickdwum Levonus @ Livousa or Uzoum Chikkudum Leeones as per FIR filed by Bengaluru Police and Mumbai Police. He stated that, the Foreigners Restriction Centre is established under the authority of
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the Central Government for the purpose of detaining illegal immigrants, especially those awaiting deportation or pending repatriation orders and who are not facing any active judicial proceedings. In contrast, a restriction centre is a facility where a foreign national, though released on bail or not under formal judicial custody, is kept under controlled movement. The aim is not punitive, but to ensure his continued availability for legal proceedings, including court hearings or criminal trials.
This practice has been recognized by the Courts in various jurisdictions and is exercised under executive authority of the FRRO. Hence, he prays that this Court may uphold the order dated 28.03.2025 passed by the FRRO under Section 3(2)(e) of the Act. In support of his submissions, he has referred to the following judgments:
(a) Judgments of the Madras High Court in the cases of:
i. Kalavathy and Others -Vs.- State of Tamil Nadu [1992 SCC OnLine Mad 587];
ii. Premavathy @ Rajathi -Vs.- State of Tamil Nadu [2003 SCC OnLine Mad 764];
iii. Sree Latha -Vs.- The Secretary to Government, Public (SC) Department,
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Government of Tamil Nadu and Others [Habeas Corpus Petition No.1138/2006, decided on 21.09.2007];
iv. State, rep. by the Secretary to Government of Tamil Nadu -Vs.- G. Karunairaj [2013 SCC OnLine Mad 3541];
v. Yogeswari (supra);
(b) Judgments of the Delhi High Court in the cases of:
i. Kinadhan Chakma -Vs.- Union of India and Others [2024 SCC OnLine Del 139]; ii. Stephen -Vs.- NCB and Another [2024 SCC OnLine Del 3234];
(c) Judgment of this Court in the case of Babul Khan and Another -Vs.- State of Karnataka [2020 SCC OnLine Kar 3438].
Analysis:
6. Having heard the learned counsel for the parties and perused the record, the short issue that arises for consideration is, whether the letter/order both dated 28.03.2025 issued by respondents No.3 and 5 are just, valid and legal?
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WPHC No.34/2025
7. Insofar as the letter dated 28.03.2025 issued by respondent No.3 is concerned, the plea of Sri. Pasha is, when the petitioner was released by the Prison Authorities, the Policemen from respondent No.3 had gone inside the prison and apprehended the petitioner and taken him away to produce him before respondent No.5 and in that manner, the order which has been passed by this Court on 27.03.2025 has been frustrated. His submission is, in terms of the order dated 27.03.2025, wherein according to him, the Court has only stated that, the respondents to move the Registration Officer appointed under Rule 3 of the Foreigners Rules and not in the manner that they can take the custody of the petitioner and produce him before respondent No.5. This stand is contested by Sri. Belliappa by drawing our attention to the objections filed by respondent No.3, wherein in paragraphs No.3 and 4, the following has been stated:
"3. The averments made in Paragraph-6 & 7 of the amended Writ Petition to say that the Respondent No.3 has taken the Petitioner in to custody from the Central Prison is not true. After the
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release of the Petitioner in terms of the order passed in Criminal Petition No.4000/2025, the Petitioner was secured and produced before the Competent Authority i.e. Respondent No.5 on the Bonafide belief that the Petitioner was to be produced before the Competent Authority in terms of the Order dated 27.03.2025 in Criminal Petition No.4000/2025.
4. Therefore, the act of the Respondent No.3 in securing the Petitioner and presenting him before the Competent Authority, is under the Bonafide belief that such liberty was given to the Respondent No.3 to present him before the Competent Authority, as the Foreigners Act / Passport Act mandate that let alone a police officer even a citizen of this Country inform the Competent Authority about an illegal immigrant and therefore it is under those circumstance the Petitioner was secured by the 3rd Respondent only to be presented before the Competent Authority to initiate appropriate action only to enable the authorities under the Act, Rules to take appropriate steps in accordance with law. A copy of the letter of request dated 28.03.2025 to the Respondent No.5 is herewith produced and marked as Annexure-R1."
Having noted the stand of the petitioner and respondent No.3 and also paragraph No.10 of the order wherein the Court had made it clear that if the Competent Authority feels that by means of imposing restrictions on the
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WPHC No.34/2025movements of the petitioner, the Competent Athority may pass such orders with intimation to the concerned Court, surely suggest the bonafide conduct of the Officers of respondent No.3 as expressed by Sri. Belliappa. The same cannot be doubted.
8. Insofar as the second plea urged by Sri. Pasha challenging the order dated 28.03.2025 issued by respondent No.5 is concerned, Sri. Pasha had primarily relied upon the judgment in the case of Yogeswari (supra) to contend that keeping the petitioner in Restriction Centre is a detention in a prison and such a detention is in violation of Articles 21 and 22 of the Constitution. We are not impressed by the said submission made by Sri. Pasha for the reason that, the judgment which has been referred to by Sri. Pasha has been clarified/not agreed to in the subsequent judgment in the case of Sree Latha (supra) by the Madras High Court, which is a reference is made to Three Hon'ble Judges Bench in view of conflicting decisions in the cases of Kalavathy (supra) and Yogeswari (supra) and also
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WPHC No.34/2025in view of the judgment of the Division Bench of the Madras High Court in the case of Premavathy @ Rajathi (supra) wherein the Full Bench has, in paragraphs No.18 and 19, held as under:
"18. In order to appreciate his contention, it is necessary to consider whether the order directing a foreigner to stay in a special camp with restriction in not allowing such person out of the camp and forcing him to stay in a cell during night can be considered as detention or confinement as envisaged under Section 3(2)(g) or would only amount to condition requiring him to reside in a particular place as envisaged under Section 3(2)(e)(i) and imposing any restriction on his movements as envisaged under Section 3(2)(e)(ii). In order to appreciate this contention, it is necessary to notice the contents of Section 4. Section 4(1) envisages that an internee shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline the punishment of offences and breaches of discipline as the Central Government may determine. Under Section 4(1), in respect of whom an order under Section 3(2)(g) is in force directing him to be detained or confined in such place is known as an internee. On the other hand, under Section 4(2), any foreigner in respect of whom an order under Section 3(2)(e) is made requiring him to reside at a place, is known as a person on
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parole. As per Section 4(2) such a place can be set apart for the residence of number of foreigners and it shall be under supervision. Section 4(2) also envisages that such foreigners while residing at a place set apart shall be subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may determine.
19. According to Concise Oxford Dictionary, 10th Edition, the expression confine means, to keep or restrict someone or something within certain limits of space. In a general sense, directing a foreigner to remain within a Special Camp and not allowing him to move out of such Special Camp may amount to his confinement within such Special Camp as such person is to remain within certain limits of space. However, it can be also said to be compatible with Section 3(2)(e)(i) and (ii) inasmuch as the foreigner is asked to reside in a particular place, namely, the Special Camp, along with further imposition of restriction in his movement in the sense that his movement is restricted within the space available in the Camp during day time and he is further restricted to a particular cell during night time. Section 4(2) contemplates that any foreigner, a person on parole may be subjected to other conditions as to discipline.
Having regard to all these aspects, we are unable to accept the submission made by the petitioner and, in our considered opinion, the
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Division Bench decision of this Court in 1995-2- L.W.(Crl.)690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS) had been correctly decided.
We are also unable to accept as correct the ratio of the subsequent decision in 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER) as such an order directing a foreigner to stay within a Special Camp with certain inevitable restriction regarding on his movement would amount to an order of preventive detention as envisaged under the National Security Act, 1980 and an order of arrest and detention or confinement within the meaning of Section 3(2)(g) of the Foreigners Act. Though it would have been more appropriate for the subsequent Division Bench in the unreported decision in Premavathy's case to refer the matter to a larger Bench for resolving such conflict, the ultimate conclusion was correct. Since we have approved the ratio of the decision in Kalavathy's case, it is not necessary to consider in detail the submission of the learned Senior Counsel that the Supreme Court in SLP had merely rejected the petition without laying down any particular principle of law, though prima facie the observation made in Premavathy's case that the ratio of Kalavathy's case had received the approval of the Supreme Court appears to be justified.
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Matter shall be listed before the appropriate Division Bench for disposal."
The Division Bench clearly held that, what has been held by the Division Bench in Kalavathy (supra) is correctly decided. The Division Bench also held that, the judgment in the case of Yogeswari (supra), wherein the Court has held that an order directing a foreigner to stay within the restriction centre regulating restriction on his movement would amount to an order of a preventive detention as envisaged under the National Securities Act and an order of arrest or confinement within the meaning of Section 3(2)(g) of the Act.
8.1. In fact, we find that the judgment in Kalavathy (supra) has been approved by the Supreme Court. So it follows, the judgment in the case of Yogeswari (supra) referred by Sri. Pasha has been clarified/not agreed to and the said judgment on which Sri. Pasha has relied upon, has no applicability. Even the Bombay High Court, Goa Bench in the case of Mr. Innocent Amaeme Maduabuchukwi (supra) relied upon by Sri. Belliappa, has referred to the judgments of
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WPHC No.34/2025the Madras High Court to conclude, in paragraph No.42 that any direction requiring a foreigner who has no valid travel documents or any subsisting right to remain in India to reside in special camp or detention centre, does not amount to arrest or detention of such person. In this regard, we may reproduce paragraphs No.35 to 42 as under:
"35. The Full Bench of the Madras High Court in Latha ( supra ) came to be constituted in order to resolve the conflict between the Division Bench decisions in Kalavathy Vs State of Tamil Nadu and others [1995 2 L.W. 690], Yogeswari Vs The State of Tamil Nadu, represented by its Secretary to Govt., Public (SC) Department, Chennai and Anr. [2003 1 L.W. (Cri.) 352] and Premavathy @ Rajathi Vs State of Tamil Nadu [HCP No.1038 of 2003]. The Division Bench in Premavathy had held that Yogeswari was not correctly decided as it had not noticed the decision in Kalavathy. The main issue in all these matters was whether the orders made in purported exercise of powers under Section 3(2)(e) of the Foreigners Act, requiring the foreigners to reside within the special camp established for foreigners, in effect amounted to arrest, detention or confinement of such foreigners and therefore, could be made only by the Central Government under Section 3(2)(g) of the Foreigners Act and not by the State Authorities.
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36. In Kalavathy, the Division Bench of Madras High Court had inter alia held as follows :-
"15. We are unable to accept this contention, "Place" has not been defined under the Foreigners Act. However place has been defined under Section 2(p) of the Code of Criminal Procedure, to include a house, building, tent, vehicle and vessel. Section 100, Cr.P.C. refers to inhabitants of the locality. Law Lexicon states the "Place"
certainly does not mean "geometrical point of space or the earth". It must mean "area" having length and breadth. "An area"
defined by specified boundaries and described otherwise to delimit its ambits is known as "a place". There is nothing to indicate, that the word "place" is either as big or as small as a town, village, market place or otherwise. The word "place" has been used to denote certainty rather than "size". "Locality" according to Law Lexicon, is a definite region in any part of space. "Locality" is a place with an area which is reasonably small and compact so that, it has come to exist and be treated as one unit, a reference to which sufficiently identifies the area and the persons therein:
Ordinarily, the unit which has acquired a name by which it is referred and understood. Locality has been interpreted, not to mean the same quarter, but inclusion of places even 3 or 4 miles, of the place of search. Locality need not mean, that person should be living, within a stone's throw of the house, to be searched. It is therefore, abundantly, clear, that the word "place"
contemplated under Section 3(2)(e), is different from the word "locality", the latter
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WPHC No.34/2025being broader in concept. The learned Public Prosecutor submitted that the Special Camp, Saidapet has an area of 10,000 square feet. The special camp, Saidapet, can therefore, certainly be a particular place, contemplated under Section 3(2)(e)(i) of the Act. Mr.B. Kumar was able to realise the possible difference between a place and locality and hence, conceded, that the special refugee camp can be termed as a "Particular place". If that be so, under Section 3(2)(e) of the Act, the State Government does have the power, to require foreign nationals, not only to reside in a particular place, as a special refugee camp, but also have power to impose restrictions, on their movements. Power, to pass orders under Section 3(2)(e) of the Act, indisputably has been delegated by the Central Government to the State Government. We are unable to agree, that the foreigners involved in these writ petitions, have been arrested and detained or confined. Only certain limited restrictions have been made in their movements and place of residence. A special refugee camp cannot be termed as an internment camp. If that be so, the argument that the impugned orders must be deemed to have been made under Section 3(2)(g) of the Act cannot survive. Similarly, the protection sought under Article 22(4) of the Constitution also, cannot exist, since the said Article deals with protection against arrest and detention in certain cases."
37. The Full Bench decision records that the decision in Kalavathy was challenged before the Hon'ble Supreme Court by instituting a Special Leave
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WPHC No.34/2025Petition, which was however not entertained. Following the decision in Kalavathy, another petition raising a similar contention was rejected on 29th March, 1995. This order was challenged before the Hon'ble Supreme Court in Special Leave Petition (Cri.) No.369 of 1996 in Chinnapillai Vs State of Tamil Nadu and Anr. Even this Special Leave Petition was rejected by the Hon'ble Supreme Court by order dated 14th March, 1996, which reads as follows :-
"The petitioner is a Sri Lankan citizen. Although, he has been ordered to be released on bail by the Court, he has been lodged in a Special Refugee Camp. He has been lodged in the Camp since he does not have the necessary travelling documents. In support of his contention that the judgment in a Refugee Camp does not amount to detention, the learned counsel for the State of Tamil Nadu cited Kalavathy etc. vs. State of Tamil Nadu etc. 1995(2) L.W. (Crl.) 690. He further states that the special leave petition against the judgment of the Madras High Court has already been dismissed by this Court. In this view of the matter, we see no ground to interfere. The special leave petition is dismissed."
38. The Full Bench decision records that the similar contention was raised once again in Yogeswari before another Division Bench of Madras High Court. This time however, the Division Bench, distinguished Kalavathy and held that the impugned order amounted to preventive detention and therefore, in view of provisions of National Security Act, 1980, the authorities were not justified in
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WPHC No.34/2025invoking the provisions of Section 3(2)(e) of the Foreigners Act, 1946.
39. The Full Bench decision records that subsequently the similar matter came up in Premavathy, which was disposed of by the Division Bench on 14th November, 2003. The Division Bench in this case observed that the ratio of Kalavathy's case that an order relating to residence of foreigners within a special camp did not amount to detention had been specifically approved by the Supreme Court in Chinnapillai's case and therefore the ratio of such decision must be considered as law declared by the Supreme Court and therefore should be followed. On this ground, the Bench which decided Premavathy without making any reference to a larger Bench, held that the decision in Yogeswari does not represent the correct position in law. In order to resolve the situation arising out of such conflicting view the Full Bench came to be constituted.
40. The Full Bench, after reference to various statutory provisions in Foreigners Act, 1946 and the Foreigners Order, 1948 at paragraph 14 posed for its determination the following question :
"14. The main question is therefore whether the order passed by the State Government directing the husband of the petitioner to remain within the Special Camp amounts to an order of detention or confinement as envisaged in Section 3(2)(g) of the Act. In this context, the submission
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of the learned counsel for the petitioner to the effect that the provisions contained in Section 3(2), particularly Section 3(2)(e) can be said to be impliedly repealed by the provisions contained in the National Security Act, is required to be considered at the threshold."
41. The aforesaid question or issue was ultimately answered by the Full Bench in paragraphs 15 to 19, which read as follows :-
"15. The National Security Act is an Act to provide for preventive detention. Section 3 contains power to make orders detaining certain persons. As per Section 3(1)(b), the Central Government or the State Government may if satisfied with respect to any foreigner, with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do make an order directing that such person be detained.
16. A perusal of the aforesaid provision makes it clear that such order of detention can be passed with a view to regulating the continued presence of a foreigner in India or with a view to making arrangements for his expulsion from India. The Central Government or the State Government, as the case may be, is required to come to the conclusion that is necessary to do so. The specific power envisaged under Section 3(2)(e) appears to cover many other facets rather than detention of a foreigner. Under sub-clause
(i) of Section 3(2)(e), a condition can be imposed requiring the foreigner to reside in
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a particular place. Under (ii) restriction can be imposed on his movement. The other sub clauses in Section 3(2)(e) refer to various other aspects which are distinct from the aspect of detention of such foreigner. Therefore, it cannot be said that Section 3(2) of the National Security Act which contemplates detention of a foreigner with a view to regulate his continued presence in India or with a view to making arrangements for his expulsion from India cannot be said to be in any way inconsistent with the provisions contained in Section 3(2) (e) of the Foreigners Act. If at all there is any inconsistency, it can be said that the provisions contained in Section 3(2) (g) relating to arrest and detention of a foreigner can be said to be covered by the provisions contained in the National Security Act. However, the contention in this case is not that Section 3(2)(g) should be held to be implied repealed by the National Security Act. The specific contention is to the effect that the provisions contained in Section 3(2)(e) of the Foreigners Act shall be deemed to have been repealed by the provisions contained in the National Security Act. This latter contention, according to in our opinion, is not acceptable. Since there is no specific contention relating to Section 3(2)(g), it is not necessary to express any final opinion on this aspect.
17. The allied contention of the Senior Counsel is to the effect that an order directing a foreigner to stay in a special camp with condition that he has to remain in the cell from 6.00 P.M. to 6.00 A.M and cannot go beyond the camp, which is within
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WPHC No.34/2025a defined area guarded round the clock by armed police amounts to detention or confinement and, therefore, such power can be exercised only under Section 3(2)(g) and not under Section 3(2)(e) of the Foreigners Act.
18. In order to appreciate his contention, it is necessary to consider whether the order directing a foreigner to stay in a special camp with restriction in not allowing such person out of the camp and forcing him to stay in a cell during night can be considered as detention or confinement as envisaged under Section 3(2)(g) or would only amount to condition requiring him to reside in a particular place as envisaged under Section 3(2)(e)(i) and imposing any restriction on his movements as envisaged under Section 3(2)(e)(ii). In order to appreciate this contention, it is necessary to notice the contents of Section
4. Section 4(1) envisages that an internee shall be detained or confined in such place and manner and subject to such conditions as to maintenance, discipline the punishment of offences and breaches of discipline as the Central Government may determine. Under Section 4(1), in respect of whom an order under Section 3(2)(g) is in force directing him to be detained or confined in such place is known as an internee. On the other hand, under Section 4(2), any foreigner in respect of whom an order under Section 3(2)(e) is made requiring him to reside at a place, is known as a person on parole. As per Section 4(2) such a place can be set apart for the residence of number of foreigners and it shall be under supervision. Section 4(2)
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WPHC No.34/2025also envisages that such foreigners while residing at a place set apart shall be subject to such conditions as to maintenance, discipline and the punishment of offences and breaches of discipline as the Central Government may determine.
19. According to Concise Oxford Dictionary, 10th Edition, the expression confine means, to keep or restrict someone or something within certain limits of space. In a general sense, directing a foreigner to remain within a Special Camp and not allowing him to move out of such Special Camp may amount to his confinement within such Special Camp as such person is to remain within certain limits of space. However, it can be also said to be compatible with Section 3(2)(e)(i) and (ii) inasmuch as the foreigner is asked to reside in a particular place, namely, the Special Camp, along with further imposition of restriction in his movement in the sense that his movement is restricted within the space available in the Camp during day time and he is further restricted to a particular cell during night time. Section 4(2) contemplates that any foreigner, a person on parole may be subjected to other conditions as to discipline. Having regard to all these aspects, we are unable to accept the submission made by the petitioner and, in our considered opinion, the Division Bench decision of this Court in 1995-2- L.W.(Crl.)690 (KALAVATHY, ETC. v. STATE OF TAMIL NADU & OTHERS) had been correctly decided. We are also unable to accept as correct the ratio of the subsequent decision in 2003-1-L.W.(Crl.) 352 (YOGESWARI v. THE STATE OF TAMIL
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WPHC No.34/2025NADU, REP. BY ITS SECRETARY TO GOVT., PUBLIC (SC) DEPARTMENT, CHENNAI AND ANOTHER) as such an order directing a foreigner to stay within a Special Camp with certain inevitable restriction regarding on his movement would amount to an order of preventive detention as envisaged under the National Security Act, 1980 and an order of arrest and detention or confinement within the meaning of Section 3(2)(g) of the Foreigners Act. Though it would have been more appropriate for the subsequent Division Bench in the unreported decision in Premavathy's case to refer the matter to a larger Bench for resolving such conflict, the ultimate conclusion was correct. Since we have approved the ratio of the decision in Kalavathy's case, it is not necessary to consider in detail the submission of the learned Senior Counsel that the Supreme Court in SLP had merely rejected the petition without laying down any particular principle of law, though prima facie the observation made in Premavathy's case that the ratio of Kalavathy's case had received the approval of the Supreme Court appears to be justified. Matter shall be listed before the appropriate Division Bench for disposal."
42. Thus, even the Full Bench of Madras High Court has taken the view that any direction requiring a foreigner who has no valid travel documents or any subsisting right to remain in India to reside in special camp or detention centre, does not amount to arrest or detention of such person. Rather, such orders are relatable to exercise of powers under Section 3(2)(e)
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WPHC No.34/2025of the said Act and paragraph 11 of the Foreigners Order, 1948. For these reasons as well we are unable to accept Mr. Poulekar's first contention and hold that the impugned orders are ultra vires."
9. Similarly, Sri. Bhushan has also relied upon the judgment of the Delhi High Court in the case of Stephen (supra) and judgment of this Court in the case of Babul Khan (supra) for a similar proposition that restriction of movements of the petitioner in the restriction centre shall not amount to a detention as has been contended by Sri. Pasha.
10. The other judgments relied upon by Sri. Pasha are concerned, in the case of Frank Vitus (supra), the issue before the Court was only with regard to whether it will be appropriate to direct while considering the prayer for granting bail in case of a foreign national who is accused of serious offences, a notice should be issued to the Civil Authority so that the said authority can be heard on the prayer for grant of bail and on bail conditions, in the event the Court is inclined to grant bail. The
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WPHC No.34/2025Supreme Court has, in paragraph No.10.1, has held as under:
"10.1. While granting bail to a foreigner within the meaning of the Act, the court concerned shall issue direction to the State or prosecuting agency, as the case may be, to immediately communicate the order granting bail to the Registration Officer concerned appointed under Rule 3 of the Rules who, in turn, shall communicate the order to all authorities concerned including the Civil Authorities. If such information is furnished, it will enable the authorities under the Act, the Rules and the Order to take appropriate steps in accordance with the law; and"
Suffice to state, this Court while passing order dated 27.03.2025, has in fact followed the directives of the Supreme Court in the aforesaid case as is clear from paragraphs No.9 and 10 of the order and as such, the same has no applicability in the facts of this case and also in view of the issue which arises for consideration in this petition. Even in the case of Davinder Pal Singh Bhullar (supra), the reliance is placed by Sri. Pasha on paragraph No.107, the same is reproduced as under:
"107. It is a settled legal proposition that if initial action is not in consonance with law, all
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subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opusmeaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case."
We do not see the applicability of the paragraph of the said judgment in view of our conclusion above and the clear mandate of law in terms of the judgment of the Full Bench of the Madras High Court on the issue.
10.1. Insofar as the judgment in the case of Ana Parveen (supra) is concerned, the said judgment shall not be applicable in the facts of this case in as much as in the said judgment, the Court had held that the detention would not be consistent with the mandate of Article 21 of the Constitution, wherein in the fact situation was that, no papers were placed on record in connection with the alleged divorce of the petitioner from his wife and also, the Court had directed the Central Government to consider the grant of long-term visa to him.
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WPHC No.34/202510.2. Insofar the judgment in the case of Charles Kingsley Okokaso (supra) is concerned, there the Supreme Court was concerned with a situation where the petitioner - a Nigerian national, was convicted under Section 21(b) of the NDPS Act and Section 14 of the Foreigners Act for unlawful possession of cocaine and not having a valid visa; he was kept in detention centre which was challenged as unlawful. The Court had held that, a foreign national cannot be kept in a detention centre after completing the sentence. It was in that factual situation, the Court had directed for the release of the petitioner. The said judgment is clearly distinguishable.
10.3. Insofar as the judgment in the case of Emechere Maduabuchkwu (supra) is concerned, the petitioner was arrested for violating the Delhi Excise Act and the Foreigners Act. He was granted bail, but was directed to be transferred to a detention centre until his travel arrangements were made. The issue involved before the Court was with regard to legality of restricting
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WPHC No.34/2025a foreign national to a detention centre after being granted bail. Suffice to state, the Court has held that an under-trial should not be detained without due process of law. In any case, the said judgment is clearly distinguishable on facts when this Court, while passing order dated 27.03.2025, though has permitted for passing of order under Section 3 of the Foreigners Act, but we note from the perusal of order dated 28.03.2025 that the said order has been passed by respondent No.5 on the basis of a communication dated 03.03.2025 received from respondent No.3 and not pursuant to order dated 27.03.2025.
11. In view of our discussion above, we are of the view that, the present petition filed by the petitioner is without any merit and the same is dismissed.
No costs.
Sd/-
(V KAMESWAR RAO) JUDGE Sd/-
(T.M.NADAF)
PA JUDGE