FOGIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of instant petition under Article 226 of the Constitution of India, petitioner has challenged the order of State of Rajasthan, passed by Deputy Secretary, Department of Home, whereby he has been directed to be detained in jail under Section 3(1)(b) of the National Security Act, 1980, hereinafter referred-to as "the NSA", pending deportation proceedings.

(2.) It is averred that petitioner Fogia, an unmarried person, has been residing in Village Khuiyala, District Jaisalmer, the place of his birth, since 1943. His parents were also born and lived in the same village.... Thus, he claims to be indian citizen in terms of Section 3(1) (a) & (b) of the Indian Citizenship Act, 1955, hereinafter referredto as "the Act of 1955. It is also averred that the names of parents of petitioner have appeared in the voters list of village Khuiyala. It is further averred that on 12.11.1993, he was arrested in the name of Khania son of Talib for the offence under the Narcotics Drugs & Psychotropic Substances Act, in short "the NDPS Act", and Section 14 of the Foreigners Act, 1946, hereinafter referred-to as "the Act of 1946". An F.I.R. was lodged by one Ramnath Subedar at Police Station, Mohangarh, on 12.11.1993 stating inter alia that four persons were seen coming from the side of Pakistan and moving towards Ramgarh. They were challenged & caught by the Armed Forces. On search being made, the petitioner was found carrying ten packets of heroin in his possession weighing 1 kg. each. Similarly, other accused persons were also found carrying contrabands. He was put to trial alongwith three others for the offence under the NDPS Act. During trial, in defence, he claimed himself to be a citizen of India. He identified himself as son of Saifu resident of Khuiyala. In support of his defence, he produced DW 1 Jeetu Singh and DW 2 Moheb Khan. The learned Special Judge, NDPS Act Cases, Jodhpur, by judgment dated 17.8.1994 convicted the petitioner and others of offence under Section 22 of the NDPS Act and sentenced each of them to ten years' rigorous imprisonment and to pay a fine of Rs.one lac and in default of payment thereof, to further undergo two years' R.I. As regards the offence under Section.23 of the NDPS Act, the learned Judge found that even according to the prosecution witnesses, petitioner was caught at a distance of 45 kms. from the border. Thus, he was within the territory of India and there was no evidence worth the name to show that he had crossed the border. In view of the finding, he was acquitted of offence under Section 23 of the NDPS Act. As regards offence under Section 14 of the Act of 1946, the learned Judge observed that in absence of decision of the Central Government as to the citizenship of the detenu, penal provisions of the Act of 1946 cannot be attracted. Thus, while acquitting him of offence under Section 14 of the Act of 1946, the Court left the issue of citizenship of the petitioner open to be determined by the Central Government.

(3.) It is not in dispute that inspite of decision of the Court as back as in the year 1994, the Central Government has not decided the question of petitioner's citizenship, meanwhile he has undergone the full term of sentence in jail as a foreign national. While in jail, he filed a civil suit in the court of Civil Judge (Junior Division) cum Judicial Magistrate No. 2, Jodhpur seeking declaratory decree that he was citizen of India and injunction restraining the respondents from deporting him to Pakistan. It is asserted that the petitioner was not produced by the jail authorities before the trial Court for recording his statement. On completion of the sentence on 11.11.2005, instead of being released, he was handed over to police authorities. He challenged the detention by way of filing a Habeas Corpus Petition, which was registered as D.B.Habeas Corpus Petition No. 6660/2005. This Court by order dated 14.11.2005 restrained the respondents from deporting him. In reply to the said petition, it was disclosed that the petitioner was detained in proceedings under Section 109 CrPC. However, having realized that petitioner could not be detained for long in the garb of proceedings under Section 109 CrPC, the same were dropped and, as such, the Habeas Corpus Petition was made infructuous.