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In this case, the Hon’ble Delhi High Court rejected the habeas corpus petition filed by the petitioner and held that the detention of a Bangladeshi national, Mr. Azal Chakma, is not illegal, as his movement was restricted so that he remained available for deportation, and that such a foreign citizen could not claim that he had right to reside and settle in India in terms of Article 19 (1) (e) of the India Constitution.

In this particular case, petitioner Mr. Kinadhan Chakma, uncle (Mama) of, Mr. Azal Chakma, was detained by Respondent No. 2, which was the Foreign Regional Registration Office (FRRO), as he was apprehended at New Delhi’s IGI Airport during clearance of immigration when he attempted to depart for Dhaka, Bangladesh, on the basis of an Indian Passport obtained by fraud.  

The petitioner Mr. Kinadhan Chakma preferred the present writ petition under Article 226 of the India Constitution together with Section 482 Code of Criminal Procedure, 1973 praying for the issue of a writ of habeus corpus for producing Mr. Azal Chakma before the Court. 

The petitioner claimed that Mr. Azal Chakma was born in India, was raised in India by his mother. Mr. Azal’s mother had solemnized her marriage in India with Mr. Uttam Kumar who came to India from Bangladesh in 1986. Mr. Azal was stated to acquire his Indian citizenship by birth and had his initial education also in Gomati, Tripura and later on in Shilong, Meghalaya. The petitioner averred that Mr. Azal Chakma lived in India all his life barring for a very brief period and he held an Indian Passport, AADHAR Card, PAN Card, Indian authority issued driving licence and ran a business at Kolkata.

The petitioner alleged that his nephew, Mr. Azal Chakma was illegally detained in custody since 13th October, 2022 and was languishing in jail without any fault. The petitioner contended that Mr. Azal was never produced before any law court or before any other judicial authority and his detention was absolutely illegal and against due process of law, besides being against the provisions of Indian Citizenship Act, 1955. The petitioner invoked the habeas corpus jurisdiction of the Hon’ble Delhi High Court in this particular backdrop.

The respondents refuted these allegations and put forth that Mr. Azal Chakma was apprehended at IGI Airport, New Delhi during immigration clearance when he attempted to depart for Dhaka, Bangladesh by clutching to fraudulently obtained Indian Passport. It was in the aforesaid background that his movements were restricted by them. The respondents claimed that Mr. Azal Chamka had been visiting India till 2016 on the basis of multiple Indian visas on a passport issued to him by the Bangladesh. The respondents further claimed that the last time Mr. Azal departed from India on Bangladeshi passport on 17th June, 2016 from Kolkata and there is no evidence to show as to how he subsequently entered into Indian soil. The respondents alleged Mr. Azal to have entered into Indian soil through porous border and thereafter managed to obtain Indian documents in fraudulent and dishonest manner.

The Hon’ble Delhi High Court noted that the documents collected by respondents clearly indicated that Mr. Azal Chamka held a Bangladeshi passport which was fraudulently procured and he entered India multiple times on the basis of such a passport, where while applying the visa, Mr. Azal Chamka claimed himself as a Bangladeshi national by birth, and claimed his parents to be Bangladeshi citizens. The petitioner also failed to apprise the Hon’ble Court as to how and when Mr. Azal entered India after he had gone to Dhaka on the basis of Bangladeshi passport. The Bench was intimated that Mr. Azal Chamka’s movements were curtailed under Section 3(2)(e) of Foreigners Act, 1946, combined with Section 11(2) of the Foreigners Order, 1948, which it held to be justified.

The Hon’ble Delhi High Court remarked that a foreigner’s and or a suspected foreigner’s fundamental right was limited to right to life and liberty under Article 21 of the Indian Constitution. The Bench, while referring to the judgment of the Hon’ble Supreme Court of India, Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta (AIR 1955 SC 367), held that the Indian Government’s power to expel foreigners was absolute and without any limits and no provision present in the Indian Constitution had the effect of limiting such discretion of the Government. 

The Hon’ble Delhi High Court bench said there was nothing to show that Mr. Azal Chamka’s liberty had been curtailed in an illegal or unlawful manner, as he has failed to explain as to how he came arrived in India when he had left India on a Bangladeshi passport, while noting that it was not a preventive detention case. Mr. Azal’s movements had only been restricted in accordance with law so that he could be deported back to Bangladesh through the Bangladesh High Commission, as the Bangladesh High Commission had already issued travel permit documents for Mr. Azal’s repatriation.

Finally, the Hon’ble Delhi High Court dismissed writ petition, as the same was devoid of any substance. 

The Division Bench of Justices Suresh Kumar Kait And Manoj Jain of the Hon’ble Delhi High Court gave this judgment.

CASE NAME: Kinadhan Chakma vs. Union of India & Ors. (Decided on 9th January, 2024).

Aditya Paul, 5th Year Student, Adamas University, Intern Under Legal Vidhiya.

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