Page No.# 1/9 GAHC010118092025 2025:GAU-AS:14953-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2991/2025 ASRAB ALI S/O- LATE HATEM ALI. R/O- VILL.- KHABLAR VITHA, P.O.-KHABLAR VITHA, P.S.- BARPETA, DIST.- BARPETA, ASSAM. PIN-781352. VERSUS THE UNION OF INDIA AND ORS REPRESENTED BY THE SECREATARY MINISTRY OF HOME AFFAIRS , GOVERNMENT OF INDIA, SHASTRI BHAWAN, NEW DELHI, PIN- 110001. 2:THE STATE OF ASSAM THROUGH THE SECREATARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI ASSAM PIN-781006. 3:THE SUPERINTENDENT OF POLICE(B) BARPETA DISTRICT- BARPETA ASSAM PIN-781314. 4:THE DISTRICT COMMISSIONER OFFICE OF THE DISTRICT COMMISSIONER BARPETA DIST.- BARPETA ASSAM PIN-781301. Page No.# 2/9 5:THE DIRECTOR GENERAL OF POLICE ASSAM ASSAM POLICE HEADQUARTERS ULUBARI GUWAHATI-781007. 6:THE SPECIAL DIRECTOR GENERAL OF POLICE (BORDER) ASSAM. ASSAM POLICE HEADQUARTERS ULUBARI GUWAHATI-781007. 7:THE OFFICER-IN-CHARGE SARTHEBARI BARPETA ASSAM PIN-781307 Advocate for the Petitioner : MS. D GHOSH, MR. D K AGARWALA,MS A HUSSAIN,MR A.K. HAJONG,MR. S. K. CHAKMA,MR I CHAKMA,MS N DEKA Advocate for the Respondent : DY.S.G.I., SC, ECI,SC, F.T,GA, ASSAM BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 01.11.2025 (K.R. Surana, J) Heard Mr. I. Chakma, learned counsel for the petitioner. Also heard Ms. S. Baruah, learned CGC; Mr. G. Sarma, learned standing counsel for FT, Border matters and NRC; Mr. M. Kuli, learned counsel appearing on behalf of Mr. A.I. Ali, learned standing counsel for ECI; and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for the State. 2) The petitioner in this case is Asrab Ali. The case of the petitioner, in brief, is as follows:- Page No.# 3/9 a. The petitioner’s elder sister, namely, Kamala Bhanu @ Shuna Bhanu (as spelt in the opinion of the learned Tribunal), is a declared foreign national vide opinion dated 10.09.2013, passed by the learned Member, Foreigners Tribunal- III, Barpeta, in F.T. Case No. 55(III)/2011 [arising out of Ref. IM(D)T Case No. 3436/B/98], whereby she was declared to a foreigner who has entered into India without authority after 25.03.1971 and therefore, an illegal migrant of post 25.03.1971 stream. b. The said opinion was assailed by Kamala Bhanu @ Shuna Bhanu (as spelt in the High Court’s order), by filing W.P.(C) 285/2014, but the said writ petition was dismissed by order dated 10.11.2016, passed by the Division Bench of this Court. Thus, the said opinion dated 10.09.2013, was not interfered with. c. Kamala Bhanu @ Shanu Bhanu (as spelt in the order of the Supreme Court of India), aggrieved by the order dated 10.11.2016, approached the Supreme Court of India by filing Special Leave Petition (Civil) Diary No.41477/2018. The petitioner has annexed a copy of the order dated 07.12.2018, passed by the Supreme Court of India, thereby issuing notice. But no document has been filed to show the present status of the proceeding before the Supreme Court of India. d. It is projected that the said declared foreign national was taken into custody and after three years of detention, pursuant to the order passed by the Supreme Court of India, she was released as per release memo dated 13.01.2020, issued by the Superintendent of Police (Border), Barpeta. Page No.# 4/9 e. The petitioner projects that despite her release, the said declared foreign national was again taken into custody on 25.05.2025. f. Therefore, on 27.05.2025, the petitioner had approached the Director General of Police, Assam and had submitted a representation dated 27.05.2025, stating therein that he had appeared before the Barpeta Police Station and Office of the Superintendent of Police, but they refused to receive a copy of the order passed by the Supreme Court of India and accordingly, represented to consider the application and direct the Superintendent of Police, Barpeta to comply with the order. Be it stated that the copy of order passed by the Supreme Court of India, which was purportedly accompanying the said representation dated 27.05.2025, has not been enclosed along with as a part of Annexure-4 of this writ petition. g. Thus, it is projected that the said declared foreign national has been arrested in violation of the order passed by the Supreme Court of India. 3) Accordingly, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a mandamus directing the respondents that no person be detained on the allegation of being a foreigner or who are declared to be foreigners be pushed back without following the due procedure/ due process of law; to quash the decision of the authorities to push back the elder sister of the petitioner; and to pass such order as the Court may deem fit due to harassment/ hardship faced by the detenue and the family due to inhumane action of the respondents. The petitioner has also prayed to bring back the elder sister of the petitioner from the no-man’s land. Page No.# 5/9 4) The learned counsel for the petitioner had made his submissions in the context of deportation. It was submitted that as the order of this Court has been challenged before the Supreme Court, the alleged detention and consequent deportation of the elder sister of the petitioner was illegal. 5) Thus, from the materials available on record, the issue that the petitioner is a foreigner/ illegal migrant after 25.03.1971, has attained finality in light of the opinion dated 10.09.2013; dismissal of W.P.(C) 285/2014, by order dated 10.11.2016. The petitioner has not brought anything on record to show that the operation of the opinion dated 10.09.2013 had been stayed. 6) The learned Tribunal, in its opinion dated 10.09.2013, had framed the points of determination as follows:- “4. Now, the point of determination is as to whether the OP is a ‘citizen’ of India or a foreigner within the meaning of the expression ‘foreigner’ as defined in Foreigners’ Act, 1946.” 7) The allegation about illegality committed by the State in the manner the declared foreign national was taken into custody and kept in the Holding Centre including propriety of State to take into custody the declared foreign national, who is on bail are issues that has extensively been dealt by this Court in the case of Malek Ostar v. Union of India & Ors., W.P.(Crl.) 37/2025, decided on 21.08.2025. 8) Therefore, in light of the decision of this Court in the case of Malek Ostar (supra), the Court is of the considered opinion that there is no cause for preventing the State from taking an appropriate action against Kamala Bhanu @ Shuna Bhanu, the projected elder sister of the petitioner, as she is a “declared foreign national”. Therefore, there is nothing to prevent the State to take steps for her expulsion from the Country. Page No.# 6/9 9) By referring and extensively quoting from 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, in the case of Malek Ostar (supra), had held that the State had unfettered right to expel a foreign national, so declared by the Foreigners Tribunal by its opinion and the keeping of such declared foreign national in Holding Centre has been held to be justified. The said order is found to apply under the facts and circumstances of this case. In the case of Sarbananda Sonowal (supra), the influx from Bangladesh has been compared to external aggression. Moreover, reference had been made to the excerpts of a book titled, "Eastern Pakistan; its Population & Economics", by a pro-India leader Sheikh Mujibur Rahman, where it is observed as follows: "Because Eastern Pakistan must have sufficient land for its expansion and because Assam has abundant forests and mineral resources, coal, petroleum etc., Eastern Pakistan must include Assam to be financially and economically strong.” 10) In the case of Malek Ostar (supra), the Court had also observed that a question would arise as to how can the Country deport a “declared foreign national”, who has entered into Assam illegally after 25.03.1971, if the specified territory, i.e. the present Republic of Bangladesh refuses to acknowledge and/or admit that the proceedee as their subject and deny to take those persons into their Country. In the considered opinion of the Court, the State has unfettered power to cause expulsion of a declared foreign national. Therefore, in the event a “declared foreign national” cannot be expelled due to any reason whatsoever, including the policy in force, then the only way open to the State would be to prevent a declared foreign national from getting Page No.# 7/9 employment, purchase land, marry Indian national, etc., perhaps by framing appropriate policy and/or by detaining such “declared foreign national” in the holding areas ear-marked for the purpose. Accordingly, the act of the appropriate Government to keep in holding camps, a “declared foreign national” and/or “foreigner” as declared by a Foreigners Tribunal, cannot be faulted with or equated to arrest as is understood under Criminal Procedure Code and/or Bharatiya Nagarik Suraksha Sanhita, which confers certain procedural safeguards for citizens of India, who are arrested in connection with some criminal offence. 11) In this case, the petitioner has stated in paragraph 20 of the writ petition that the detenue has been pushed back off to Bangladesh Border. Therefore, this is not a case where the declared foreign national is facing deportation. Rather, the projected elder sister of the petitioner, being a declared foreign national, has been expelled as an illegal migrant i.e. as a declared foreign national, who has entered into India (Assam) from a specified territory after the cut-off date of 25.03.1971. The said two terms, i.e. “deportation” and “expulsion”, in the opinion of the Court, cannot be interchangeably used in this case in hand, as “deportation” is carried out in respect of a person, whose entry into the Country was lawful, but her subsequent stay in the Country is illegal or unlawful, but the word “expulsion” is generally used for expelling an illegal migrant and/or illegal foreigner. 12) In light of the decision of this Court in the case of Malek Ostar (supra), the Court is unable to accept that any legal and fundamental right under Articles 14, 16, 18, 21, 22 of the Constitution of India has purportedly been violated in respect of Kamala Bhanu @ Shuna Bhanu, being a “declared foreign national”. In this regard, one may refer to the decision of the Supreme Page No.# 8/9 Court of India 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 her choice or to carry out any vocation, trade or calling of her 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. The Court is also constrained to hold that the State has been able to justify the detention of the Kamala Bhanu @ Shuna Bhanu successfully, as she has been declared to be a foreign national. Therefore, she cannot have unfettered right to travel throughout India or to reside at a place of her choice or to carry out any trade, vocation or calling of her choice. 13) Earlier, during the Covid-19 Pandemic situation, many detained foreign nationals were released on bail on certain conditions. However, similar situation no longer prevails in the Country. Moreover, the purported release of the declared foreign national on bail cannot be said to be a bar for the State to expel a person who has been declared to be a foreigner. It is reiterated that the petitioner has not brought on record any document showing that the expulsion of Kamala Bhanu @ Shuna Bhanu from the Country to the specified territory has been stayed. 14) Therefore, on all counts, in light of the discussions made in the decision of this Court in the case of Malek Ostar (supra), this writ petition fails. 15) The detained declared foreign national, namely, Kamala Bhanu @ Shuna Bhanu is not found entitled to be brought back from Bangladesh and/or from the no-man’s land and set free in the Country. It is also held that Page No.# 9/9 after being declared to be an illegal foreign national, pending her expulsion from the Country, the said Kamala Bhanu @ Shuna Bhanu was not entitled to any right of further hearing before expulsion. Her position that she is an illegal migrant is evident from the opinion dated 10.09.2013, referred hereinbefore. 16) Accordingly, all the prayers made in this writ petition are rejected. 17) The writ petition is misconceived and is dismissed at the motion stage without issuing notice upon the respondents. 18) Under the circumstances, there shall be no order as to cost. 19) The learned standing counsel for the FT, Border and FT matters shall transmit a copy of this order to the learned Member, Foreigners Tribunal -III, Barpeta, to be made a part of record of F.T. Case No. 55(III)/2011 [arising out of Ref. IM(D)T Case No. 3436/B/98], disposed of by opinion dated 10.09.2013. JUDGE JUDGE Comparing Assistant