MOHD HAYYAT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This habeas corpus petition filed in respect of detenu Mehardin, demonstrates complete lack of cordination between the various departments of the State Government and the Central Government, with has resulted in landing of the detenu from one jail to another for a period, which now extends over a year for no fault on his part.

(2.) We have already given detailed facts in our order dated 15th Jan. 1991 and need not repeat the same here except for recapitulating that the detenu, who is a Pakistan National visited India on a valid Passport and Visa. During his stay he was alleged to have been involved in smuggling activity. He was granted bail by this Court on 18th Jan. 1990 in a case registered under Section 135 of the Customs Act. He was then detained under COFEPOSA Act. His detention order passed under COFEPOSA Act was also quashed by the Division Bench at Rajasthan High Court Jodhpur on 23rd October, 1990. It is pertinent to mention that when bail was granted, a condition was imposed that accused will not leave Jaipur without informing Central Customs Authorities. He was however kept detained at Central Jail Ajmer as was mentioned in detention order. Two favourable orders were passed as mentioned above in favour of the detenu, yet he was not permitted to move out of Ajmer as he could not undertake journey even otherwise as he had in his possession neither Passport nor Visa. Nobody cared to extend it despite his writing letters from Jail. When the detenu was released in pursuance of the orders of the High Court dated 23rd October, 1990, he was restrained from leaving the territory of Ajmer under the orders of the District Magistrate, Ajmer purported to have been passed under, section 3 of the Foreigners Act. Petitioner's allegations are that though the orders were passed only restraining his movement but in reality he was detained at Police Station. However, after this petition was filed and notices were issued, the said order has been withdrawn on 12th Jan. 1991. He still could not move freely and thereafter the SHO Police Station Civil Lines, Ajmer registered a case under sections 3/14 of the Foreigners Act, 1946 and 3/4 of the passport Act, 1920 alleging that he has been staying at Ajmer without a valid passport and Visa for coming to Ajmer. The detenu is thus now in judicial custody in this case ever since his arrest i.e. 13.1.1991. We asked learned Additional Advocate General to explain how the accused is responsible for going to Ajmer, he submitted that he had been taken by police under orders from Court, since the accused is not having a valid passport and Visa, he has been detained and a case has rightly been registered against him. The attention of the Additional Advocate General was drawn to the fact that the passport of the accused (detenu) had been seized by the Customs authorities at the time when he was arrested under the Customs Act, but the Additional Advocate General submitted that the Superintendent, Central Customs and Excise (Prosecution) has informed the SHO, Police Station Civil Lines, Ajmer in writing that no passport has been recovered from Mehardin, though he had reportedly come under a valid passport to India. This letter is dated 23rd Dec. 1990, and is on record. This Court however could make out from the facts that, the passport is with the authorities of the Central Customs and Excise Collectorate and we were very confident that Superintendent (Prosecution) has written the letter without verifying the facts and most irresponsibly. Thereafter we asked Mr. Balvada, appearing on behalf of the Central Excise to get it traced out and produce before this Court within 3 days else serious consequence would follow. It is, thereafter that Shri Balvada produced the original passport before this Court, which was shown to the Investigating Officer, who was present in Court. It may be mentioned here that the Additional Collector, Customs had already sent the photostat copy of the passport to the SHO, Police Station Civil Lines, Ajmer, but the latter refused to act upon it unless the original was shown. Meanwhile this Court thought it proper to seek assistance of Mr. R.M. Lodha, Senior standing counsel for U.O.I. and he was asked to get in touch with the Central Government to let us know as to whether the Central Government intends to deport the detenu or extend his Visa so that he may stay on in India to face the prosecution as a peculiar circumstance has arisen in this case. The detenu Mehardin though he was holding a valid passport and had a valid Visa but was unable to stay in the village and moves to place where case is pending, despite the fact that he has been granted bail by this Court and his detention order has also been quashed. There is no legally imposed restriction on his movement as restriction on his movement order is already withdrawn. Still the irony is that even if he is granted bail in the case of Foreigners Act, the question would arise as to whether he can move freely and if so under what authority because he neither has in his possession the passport nor the extended Visa and he is decidedly not an Indian citizen, who has a right to move freely. All this poses a dilemma before the Court. On one side no foreigner can be permitted to stay or move in India without a valid passport and Visa granted in his favour and on the other he also can not leave the territory of India as cases are pending before him. He also can not be kept in Jail as he has been ordered to be released on bail in customs cases, how he can hardly be held to be an accused of offence under Passport Act or Foreigners Act and this Court in such a situation has no other option left but to pass a most unusual order, under the inherent and extra ordinary jurisdiction so that substantial justice can be done. We therefore direct that

(3.) We hopefully expect that looking the circumstance that Passport was under seize, the Investigating Officer will deal with the investigation of the case under the Foreigners Act and Passport Act objectively.