Sasikala vs The State of Tamil Nadu

D. Murugesan, J.—The petitioner is the wife of one Sureshkumar, S/o Natesu, the detenu, who has been detained u/s 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 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.

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 u/s 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.

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 SLP 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.

We have carefully considered the submissions of the respective counsel. The power of the Government to issue the detention order u/s 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:

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, 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. (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.

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.

In order to judge the satisfaction of the authority to pass the impugned order u/s 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, 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.

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.