The Supreme Court of India in an order said that detention is not consistent with the mandate of Article 21 of the Constitution and the concern detenue in the case can be made free if he can furnishing a personal bond of Rs 5,000 with two sureties of Indian citizens in the like amount.
The bench of Justice DY Chandrachud gave the above order in case that came before the bench. The case is that of Mohd Qamar who was arrested in connection with FIR No 250 of 2011 under Section 14 of the Foreigners Act 1946 registered at PS Delhi Gate, Meerut..
He was convicted and sentenced to three years and six months’ simple imprisonment and a fine of Rs 5,000 by the Chief Judicial Magistrate, Meerut on 2 September 2014. Although he completed his term of sentence on 6 February 2015. He has been lodged in a Detention Centre under the Foreigners Act for the past 7 years on the ground that he is a Pakistani national
Petitioner Mohd Qamar contended that he was arrested in 2011 under Section 14 of the Foreigners Act 1946 registered at PS Delhi Gate, Meerut.
He was convicted and sentenced to three years and six months’ simple imprisonment and fine of Rs 5,000 by the Chief Judicial Magistrate, Meerut on 2 September 2014. He completed his sentence on 6 February 2015. For the last seven years, he has been lodged at the Detention Centre under the Foreigners Act, pending deportation on the ground that he is a Pakistani national.
The detenue contested the assertion of his being a foreign national. But in writ proceedings before the Delhi High Court, he stated that he would be seeking Indian citizenship. The case of the prosecution was that Mohd Qamar was a Pakistani national who came into India. He married an Indian citizen in 1989. The couple have five children – three sons who are labourers and two daughters who are home makers. The wife of Mohd Qamar is an Indian citizen. The children were born in India. Moh. Kumar is stated to be sixty two years old.
A representation was submitted on behalf of the Mohd Qamar by the first petitioner to the Ministry of Home Affairs. Responding to the representation, the Foreigners’ Division of the Union Ministry of Home Affairs addressed a communication on 14 January 2019 to the Principal Secretary (Home Department), Government of Uttar Pradesh after adverting to the facts which have been referred to above, the Government of Uttar Pradesh was requested to examine whether Mohd Qamar may be released from the Detention Centre and be allowed to stay in the State of Uttar Pradesh on a long term visa or a visa “as per the existing provisions norms”.
Other observation
On 26 November 2020, the Deputy Secretary to the UP Government in the Home Department addressed a communication to the Union Ministry of Home Affairs declining to recommend the release of Mohd Qamar from the Detention Centre on the ground that he has divorced his Indian wife. 8 The facts as they stand before the Court indicate that Mohd Qamar has served out his sentence. He has been lodged at the Detention Centre awaiting deportation since 7 February 2015.
The communication of the Union Ministry of Home Affairs dated 14 January 2019 notes that he was provided consular access twice, namely, on 22 November 2011 and 22 January 2012 at Central Jail, Delhi, yet his nationality was still to be confirmed by the Pakistan government “which is essential for his repatriation deportation to Pakistan”. From the material which has been placed before this Court, it is undisputed that Mohd Qamar married an Indian citizen and they have five children, all of whom were born in India and stay in India. Mr K M Nataraj,
Arguments of the councils
Additional Solicitor General has adverted to the above exchange of correspondence and submitted that the Uttar Pradesh government having declined to make its recommendation for the grant of a long term visa, no decision has yet been taken. The SSP, Meerut has declined to grant a visa or a long term visa on the ground that Mohd Qamar appears to have divorced his wife in which event he opined that there is no justification for him to continue to reside here
Seven years have elapsed since the father of the petitioners has served out his sentence following the conviction under the Foreigners Act
In this backdrop, we are of the view that it would be appropriate if the Foreigners’ Division of the Union Ministry of Home Affairs takes a final decision on the representation for the grant of a visa long term visa having regard to all the facts and circumstances of the case and after assessing the inputs from the security angle.
They shall do so independent of the communication which has been addressed by the SSP, Meerut, noted above.
Court observed: The first petitioner Ana Parveen is the daughter, while the second petitioner Rohil Khan is the son of Mohd Qamar alias Mohd Kamil, who is detained at the Detention Centre at Lampur, Narela, Delhi. Invoking the jurisdiction under Article 32 of the Constitution, the petitioners seek a writ in the nature of habeas corpus or any other appropriate writ for the production of their father, Mohd Qamar from the Detention Centre and for his release on furnishing a bond of Rs 5,000 with two sureties in the like amount so as to enable him to reside with his family in Meerut subject to reasonable restrictions.
Court held: At the same time, we are of the view that keeping the detenue, Mohd Qamar in detention would not be consistent with the mandate of Article 21 of the Constitution. In the facts of the present case and since no security threat or adverse impact bearing on national security has been placed on the record, we are of the view that the detenue, Mohd Qamar should be released on furnishing a personal bond of Rs 5,000 with two sureties of Indian citizens in the like amount.
The detenue shall furnish the address of his place of permanent residence in Meerut where he proposes to reside, to the SHO of the police station concerned and report to the local police station on the seventh day of every month pending further orders. 14 The decision of the Union government in the Ministry of Home Affairs in regard to the grant of a long term visa or visa to Mohd. Qamar shall be placed on the record of these proceedings within a period of four months from the date of this order.