Page No.# 1/10 GAHC010154622025 2025:GAU-AS:11637-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : W.P.(Crl.)/44/2025 MOHIBUL ISLAM SON OF ABDUS SAMAD, R/O NADIR KASH, P.O.-LALPUL, P.S.- DALGAON, DIST- DARRANG, ASSAM, PIN-784514 VERSUS THE UNION OF INDIA AND 6 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 1. 2:THE STATE OF ASSAM REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6 3:THE SUPERINTENDENT OF POLICE (B) DIST. DARRANG ASSAM PIN CODE- 784125. 4:THE ELECTION COMMISSION OF INDIA NEW DELHI- 1 5:THE STATE CO-ORDINATOR OF NRC BHANGAGARH ASSAM GUWAHATI- 05. 6:THE DISTRICT COMMISSIONER DIST-DARRANG ASSAM Page No.# 2/10 PIN-784125 7:THE OFFICER IN CHARGE DHULA POLICE STATION DISTRICT- DARRANG ASSAM PIN CODE- 784125 Advocate for the Petitioner : MR. M U MAHMUD, MS. B CHETIA,MS. D BORA,MR S ISLAM,MR S H MAHMUD Advocate for the Respondent : DY.S.G.I., MR M R ADHIKARI (C.G.C),SC, ECI,SC, NRC,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 29.08.2025 (K.R. Surana, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. M.R. Adhikari, learned CGC for Union of India; Mr. Devajit Saikia, learned Advocate General, assisted by Mr. J. Payeng, learned standing counsel for the FT, Border matters and NRC; Mr. M. Islam, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for the ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State respondent. 2) The petitioner in this case is Mohibul Islam. Vide opinion dated 28.04.2017, passed by the learned Member, Foreigners Tribunal (5th), Darrang, Mangaldai, in Case No. F.T. (V) 571/2016, arising out of S.P. Enquiry No. 8023/98, Shahamat Ali, his projected father-in-law had been declared to be an illegal migrant/ foreigner of post 25.03.1971 and was also held liable to be pushed back. Page No.# 3/10 3) The said opinion was assailed by the proceedee, namely, Shahamat Ali, by filing W.P.(C) 6542/2018 before this Court and the said writ petition filed under Article 226 of the Constitution of India was dismissed by order dated 27.11.2018. The said order of this Court was assailed before the Supreme Court of India, but vide order dated 02.08.2021, passed by the Supreme Court of India in Petition for Special Leave to Appeal (C) No. 11110/2021, the petitioner was allowed to withdraw the said petition with liberty to the petitioner to file a review petition against the order dated 27.11.2018, passed by this Court. It has been stated in paragraph 6 of the writ petition that Shahamat Ali did not file review petition despite liberty granted to him by the Supreme Court of India. 4) In paragraph 4 of the writ petition, it has been stated that the said Shahamat Ali was taken into custody, but the date when he was taken into custody is not disclosed. Be that as it may, it has been stated in paragraph 5 of this writ petition that pursuant to (a) order dated 13.04.2020, passed by the Supreme Court of India in Suo Motu W.P.(C) 1/2020, and (b) order dated 15.04.2020, passed by this Court in W.P.(C) (Suo Motu) 1/2020, the said proceedee was released on bail in August-September, 2021. On 23.04.2025, the police personnel from Dalgaon Police Station had taken Shahamat Ali into custody and on 24.05.2025, he was allowed to go on bail. Again on 25.05.2025, he was again taken into custody and since then his whereabouts is unknown. 5) Accordingly, by filing this writ petition in the nature of habeas corpus, the petitioner has prayed to declare the detention of Shahamat Ali on 25.05.2025, as illegal, null and void; to allow the petitioner to meet his projected father-in-law, moreso, when he was released on bail; and to direct production of Shahamat Ali in Court. Page No.# 4/10 6) This writ petition was filed on 16.07.2025 and the defects were rectified on 21.07.2025, and on 28.07.2025, when the matter was listed, this Court had passed order, requesting the learned Standing Counsel for the FT matters to obtain instructions regarding whether the declared foreign national was deported out of the Country. On 31.07.2025, the learned standing counsel for the FT matters had submitted that as per instructions received, the said person was at Holding Centre at 7th APBn., Charaikhola, Kokrajhar. Accordingly, the Court issued a direction to the In-charge of the said Holding Centre to allow the petitioner, namely, Mohibul Islam and one family member to visit the said declared foreign national and to take his signature in the vakalatnama, to be authenticated by the said authority. 7) On 06.08.2025, when the matter was listed, the learned counsel for the petitioner had submitted that he had received the certified copy of the order dated 31.07.2025 only on 05.08.2025, and the petitioner had taken steps to visit the said detained foreign national. On the said date, Mr. Devajit Saikia, the learned Advocate General for the State had addressed the Court and informed that an affidavit is being filed by the State in the matter to explain the steps taken for deportation of declared foreign nationals. It was submitted that the declared foreign national do not have a right to prolong their stay in the Country. Accordingly, the matter was adjourned to 18.08.2025. 8) In the meantime, on behalf of the respondent no.2, the Joint Secretary to the Govt. of Assam, Home and Political Department has filed an affidavit-in-opposition, to bring on record that Sahamat Hussain @ Shahamat Ali, the declared foreign national was picked up on 25.05.2025 and after verification of documents and other facts, he was handed over to the SHQ BSF (i.e. Sector Headquarter, Border Security Force), Dhubri for deportation to Page No.# 5/10 Bangladesh. However, on 29.05.2025, the BSF had handed over the declared foreign national to Assam Police, stating that though he was deported on 26.05.2025 to Bangladesh, but he re-entered into Indian territory on 28.05.2025, where he was caught by the BSF. It has been stated that since then, the said declared foreign national has been kept in Holding Centre at Charaikhola, Kokrajhar. It has further been stated that the though direction has been issued to release the detenues awaiting deportation for more than three years with certain conditions, but the Supreme Court of India had not stalled the deportation of any foreign national. Similarly, this Court, while passing order to release the foreigners due to Covid-19 pandemic situation, did not stall or prohibit the Government from taking steps to deport the declared foreigners. 9) The learned counsel for the petitioner had submitted that once the said Shahamat Ali was granted bail, he could not have been taken into custody again, which would be in violation of the bail orders passed by this Court. It was submitted that the authorities would have to follow the procedure envisaged under UN Declaration of Human Rights to deport a foreign national, which must be scrupulously followed, otherwise the process would be illegal. It has been submitted that the Country has armed forces and armed para-military forces guarding the frontiers and therefore, it is not believable that the said Shahamat Ali could have entered into the Country after being sent back to Bangladesh. 10) Per contra, the learned standing counsel for the FT matters has reiterated the submissions made by the learned Advocate General for the State on 06.08.2025. 11) As regards the right of the State to expel a foreign national, so declared by the Foreigners Tribunal by its opinion, a detailed order has been Page No.# 6/10 passed by this Court on 21.08.2025, in W.P.(Crl.) No. 37/2025. The said order is found to apply under the facts and circumstances of this case. Extensively relying on the decision of the Supreme Court of India in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors., (1955) 1 SCC 167, and Pankaj Kumar Chakrabarty & Ors. v. State of W.B.& Ors., AIR 1970 SC 97 : (1969) 0 Supreme (SC) 225, this Court has held that the State had unfettered power to expel a declared foreign national under the Foreigners Act. 12) It was also observed in the said W.P.(Crl.) 37/2025 that learned counsel for the petitioner in that case had failed to show any provision under any law in force that a person declared to be a foreign national by Foreigners Tribunals, after being apprehended, must mandatorily be produced before the Magistrate. The learned counsel for the petitioner is perhaps under some misconception of law because the declaration of foreigner under the Foreigners (Tribunal) Orders, 1964 has civil consequences. Such detection and declaration, in the considered opinion of the Court, is not under any criminal law in force in the Country. 13) It was further observed in the said order that the learned counsel for the petitioner has not been able to show that the procedure as prescribed under the erstwhile Criminal Procedure Code and/or under the Bharatiya Nagarik Suraksha Sanhita, 2023 is required to be followed by the Border Branch of Assam Police while dealing with the declared foreign national. The arrest and detention of a declared foreign national cannot be equated with rights of persons arrested as envisaged under Section 50 of the Code of Criminal Procedure. Similarly, the submissions made with regard to rights protected under Article 22 of the Constitution, in the opinion of the Court is Page No.# 7/10 totally unacceptable because it cannot be believed that the declared foreign national, so declared by the Foreigners Tribunal is not aware of the reason of being taken into custody. Let us test this submission with an example. If such a submission is accepted and extended to all convictions, then can it mean that when a convict in a serious crime is apprehended after sentence, the convict can be permitted to take a plea that he is not served with grounds of arrest and documents relating to reasons of arrest. The answer to the example given above would be in an emphatic “no”. Similarly, once a declared foreign national is taken into custody awaiting expulsion from the Country, it is not open to such declared foreign national, whose declaration is made by a Foreigners Tribunal in the State of Assam to maintain a claim that his/her custody is illegal and vitiated by non-service of grounds of arrest, as envisaged under Article 22 of the Constitution of India and/or under Section 50 Cr.P.C., as declaration of an illegal foreigner under the Foreigners (Tribunals) Order, 1964 does not have any criminal consequences. 14) It was also observed that a designed influx into India has been equated to an external aggression, therefore, upon declaration of a person as an “illegal migrant” into India (Assam) from specified territory, his/her status can be compared to as an “alien” and therefore, such illegal migrant would be excluded from protection under Article 22 of the Constitution of India by virtue of exclusion clause under clause (3) of Article 22 of the Constitution of India, as held by the Constitution Bench of the Supreme Court of India in the case of Pankaj Kumar Chakrabarty & Ors. v. State of W.B. & Ors., AIR 1970 SC 97: (1969) 0 Supreme (SC) 225. 15) In the present case, the learned standing counsel for the FT matters, by relying on the affidavit-in-opposition filed on behalf of the Page No.# 8/10 respondent no. 2 had stated that the declared foreign national, namely, Sahamat Hussain @ Shahamat Ali, the declared foreign national was sent back to Bangladesh on 26.05.2025, but he has re-entered into Indian territory on 28.05.2025. Therefore, on the said Sahamat Hussain @ Shahamat Ali, the declared foreign national being taken into custody after his re-entry into India, he would not be entitled to any protective cover of bail, which was granted to him earlier by taking into consideration the Covid-19 pandemic situation, necessitating release on bail to prevent outbreak of Covid-19 in jails and detention centre. The said situation no longer prevails in Assam. 16) In the order passed in W.P.(Crl.) 37/2025, it has been observed that when the issue of unabated influx from the specified territory is leading to demographic changes in the State, which may not be seriously impacting or affecting the rest of the Country, but is leading to widespread civil discontent in the State of Assam, it would not be permissible for constitutional safeguards available for the “citizens” of the Country to be extended to a “declared foreign national”. 17) It was further observed that even the United States of America, one of the developed Countries, is starting to feel the pinch of illegal immigrants and the nature of steps taken by it are in public domain, on which the Court does not comment. The point is that the petitioner has knowledge that his projected mother is a declared foreign national, yet he has not pleaded in the writ petition that why and for what purpose, he expects the State to extend constitutional rights and safeguards, reserved for citizens of the Country to a “declared foreign national”, awaiting expulsion from the Country. If any such rights are ordered, it would amount to give special premium to the proceedee for being a “declared foreign national” and thus, definitely not an Indian citizen. Page No.# 9/10 18) Therefore, the Court is of the considered opinion that there is no cause for preventing the State to take appropriate action against the said “declared foreign national” and to take steps for his expulsion from the Country. The Court hopes and trusts that the appropriate Government must have, in the meantime, come without its policy for expulsion of a foreigner so declared by the Foreigners Tribunals in Assam. The Court also hopes and trusts that in the absence of any policy, such a policy should be framed as early as possible. 19) The Court is unable to accept that any legal and fundamental right of the said Shahamat Ali @ Sahamat Hussain, a “declared foreign national”, purportedly under Articles 14, 16, 18, 21, 22 of the Constitution of India has been violated. As laid down in the case of Sarbananda Sonowal (supra), the said “declared foreign national” is not found to have any fundamental right in India to move freely or to reside at any place of his choice or to carry out any vocation, trade or calling of his choice. What is guaranteed under the Constitution of India, which would be available even to a declared foreign national, is the right to life, without any right to move freely within the Country, or to reside at any particular place of choice, or to carry out any vocation, trade or calling as the declared foreign national may so desire. 20) Elaborate discussions have been made in the decision dated 21.08.2025, passed by this Court in W.P.(Crl.) 37/2025, which are found to be applicable under the facts and circumstances of this case. Therefore, without reiterating the same again, the Court is constrained to hold that the said Shahamat Ali @ Sahamat Hussain, is lawfully being held by the State in the Holding Centre pursuant to his declaration by the Foreigners Tribunal (5th), Darrang, Mangaldai vide opinion dated 28.04.2017, passed in Case No. F.T. (V) 571/2016, as a foreign national, who had entered into India from the specified Page No.# 10/10 territory of present Bangladesh after 25.03.1971, awaiting his deportation and/or expulsion from India. On his subsequent re-entry into Indian territory on 28.05.2025, his detention at the Holding Centre has successfully been justified by the State as a foreign national, so declared by the Foreigners Tribunal, cannot have unfettered right to travel throughout India or to reside at a place of his choice or to carry out any trade, vocation or calling of his choice. 21) Therefore, on all counts, this writ petition fails and is thus, dismissed. The detained declared foreign national, namely, Shahamat Ali @ Sahamat Hussain is not found entitled to be released. It is also held that after being declared to be an illegal foreign national, Shahamat Ali @ Sahamat Hussain is not entitled to any right of further hearing for determination of his citizenship status, pending his expulsion from the Country. All the prayers made in this writ petition are rejected. 22) Under the circumstances, there shall be no order as to cost. 23) The Registry shall transmit a copy of this order by e-mail to the learned Member, Foreigners Tribunal (5th), Darrang, Mangaldai, to be made a part of record of Case No. F.T. (V) 571/2016, arising out of S.P. Enquiry No. 8023/98, disposed of by opinion dated 28.04.2017. 24) Under the circumstances, there shall be no order as to cost. JUDGE JUDGE. Comparing Assistant