P. LOGANATHAN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THIS writ petition is filed by one Loganathan, brother of the detune Kangsabai Sivasothi, under Article 226 of the Constitution for the issuance of a Writ of Habeas Court put. directing the respondents to produce the body of the detune before this court and set her at liberty.

(2.) THE case of the petitioner as disclosed from the affidavit filed in support of the petition is briefly as follows: - The detune is a Sri Lankan refugee holding a valid Sri Lanka Passport bearing No.1 0216062 issued on 25 -6 -1984 and its expiry date is 24 -6 -1992. She came to India on 20 -9 - 1990 while she was a student, as a Sri Lankan refugee, leaving all her properties, as the situation in Sri Lanka become undergoing for Tamils. At Madras she was staying at No. 27, Third Floor, "Adyar Apartments", Second Main Road, Kasthurba Nagar, Madras - 20, and registered herself as an refugee as required under law at J -2 Adyar Police Station on 29 -7 -1991. The detune's brother, that is, the petitioner herein, who is having good job in Paris arranged for the detune to came to Paris in order to eke out her livelihood. The detune, believing that the papers were in her name, went to the Madras Air Port on 11 -9 -1991. At the Air Port she was arrested by the first respondent in Crime No. 659 of 1991 for commission of the offence under the Past Port Act She was taken to the Mens' Refugee Camp known as Madranthanam Special Refugee Camp, the second respondent herein, without producing before the nearest Magistrate for sending her to the judicial custody. She was the only female inmate of the said camp and that she had been in the said refugee camp against her concurrence and contrary LO law. The letter sent by her uncle on 17 -9 -1991 requesting the third respondent to set her at liberty proved to be of no avail. The detune has also given a petition praying for her transfer to the fourth respondent -camp, namely, Thuraiyur Special refugee camp, (Sic*) as to the condition at the second respondent was intolerable. It is stated that the petitioner is unable to say whether the detune is kept in the second respondent so far the fourth respondent camp as it is not possible for him to meet the detune. It is stated that the detention of the detune is contrary to the well settled principles laid down by the Supreme Court and by this Court The detune is refused the right to move for bail and she is in illegal custody for more then 40 days. It is stated that the detention is illegal and the detune is entitled to be set at liberty . Hence this petition.

(3.) THE learned counsel appearing for the petitioner, Mr. Rajaiathinam, mainly argued that although no fundamental right is available to foreigner, yet the right under Article 21 of the Constitution is available. The detune wants to go back to Sri Lanka as the condition in Colombo is better than in Tamil Nadu. She has obtained the bogus passport by paying Rs.50,000/ - in order to leave the country. She was not prosecuted for violation of any offence by producing before Magistrate, but she was detained only in the Refugee Camp and the detention is illegal. In support of the contentions, the learned counsel relied on the decision in Louis De Raedt v. Union of India1, Per contra the learned Additional Public Prosecutor submitted that as far as the detune is concerned, even as per her own admission, she had committed an offence under the Passport Act as she was trying to leave the country on the basis of a forged passport It is submitted by the learned Additional Public Prosecutor that investigation is pending and that she is facing criminal prosecution. Further, the Government has passed orders under Section 3(2} of the Foreigners' Act, 1946 after taking into consideration all the relevant materials and in the face of the said order, the question of the detune leaving the country does not arise. In support of his contention, he drew the attention of this court to two decisions. In W.P. No. 7727 of 1991 dated 16 -9 -1991 Kalaimathi v. Government of Tamil Nadu, Rep. by its Secretary to Government. Public (L. & O), Department. Madras2, a similar relief was sought by the Sri Lankan\refugees kept in camps and against whom an order under Section 3(2) of the foreigners Act was passed. A Division Bench of this court, wherein one of us was party - K.M. Natarajan, J., came to the conclusion in that case that on the date of the filing of the writ petition, on the date of the return and on the date of (Sic.) of the writ petition the detunes were detained in the Refugee Camp on the basis of the order passed under Section 3 of the Act and by following the procedure established by Law. Applying the ratio in the decision in Kanu Sanyal v. District Magistrate. Darjeeling and others3 the Division Bench held tat the detention of the refugees in the Refugee Camp is legal and the initial illegality even if any, in the detention of the refugees in the Refugee Camp will not render the subsequent orders validly made by the respondent under Section 3 of the Act invalid and consequently the detention of the detunes in the Refugee Camp was held to be legal and they are not entitled to any relief in the writ petition. The said view was affirmed by another Division Bench of this court in W.P. Nos. 7475, 7728, and 7729 of 1991 dated 22 -11 -19914, wherein one of us was a party - Maruthamuthu, J. The decision relied on by the learned counsel for the petitioner: namely, Louis De Raedt v. Union of India (supra) was considered by the Division Bench in the said case. In the above quoted decision of the Supreme Court it was held that the fundamental right of the foreigner is confined to Article 21 for life and libeny and does not include the right to reside and settle in this country as mentioned in Article 19(1)(c) which is applicable only to the citizens of his country. It was further pointed out that in the decision of the Constitution Bench in Hans Muller of Nurenburg, v. Superintendent Presidency Jail. Calculla5 it was held that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion. It was further held that so far as the right to be heard is concerned, -there cannot be any hard and fast rule about the matter in which a person concerned has to be given an opportunity to place his case. In the instant case, the learned counsel submitted that he has not challenged the order passed under Section 3(2) of the Foreigners Act. So long as the said order has not been challenged and it has become final, it is not open to the petitioner to approach this court to invoke the writ jurisdiction to issue a Writ of Habeas Corpus directing the authorities to allow the detune to leave the country. It is not in dispute that the detune is facing criminal prosecution for commission of the offence under the Passport Act. The learned Additional Public Prosecutor fairly submitted that the remedy of the petitioner is to move the Government and that it is for the Government to permit the detune to leave the country. According to him it is for the Government to pass necessary orders and in case the petitioner files a petition, the Government may consider the petitioner sympathetically. For all these reasons, we are of the view that the petitioner has not made out 'any case to hold that the detention of the alleged detune is illegal and that the detune is entitled to be set at liberty in order to leave the country to her choice.