RasenthiramS/o. Rasathirai v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18-08-2007CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE K. MOHAN RAMHABEAS CORPUS PETITION NO.278 OF 2007RasenthiramS/o. Rasathirai.. PetitionerVs.State of Tamil Nadu,Rep. by Deputy Secretary to Government,Public (SC) Department,Fort St. George, Chennai 9... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of writ of Habeas Corpus to call for the recordsof the respondent made in GO.No.SR.111/264-2/2007 dated 7.2.2007,quash the same and direct the respondent to produce the body of thedetenu Elango, son of Gnanespackiyam, presently detained in SpecialCamp for Srilankan Refugees at Chinglepet before this Court and sethim at liberty.For Petitioner: Mr.B. Kumar Senior Counsel for Mr.T.M.C. KaushikFor Respondent: Mr.M. Babu Muthu Meeran Addl. Public Prosecutor- - -O R D E RP.K. MISRA, JPresent Habeas Corpus Petition has been filed by thefather-in-law of P. Illango. It is claimed that the said P.Illango, hereinafter referred to as "the detenu" is a citizen ofGreat Britain being the passport-holder of United Kingdom of GreatBritain and Northern Ireland with Passport No.302019733. The said https://hcservices.ecourts.gov.in/hcservices/ passport was issued on 22.10.202 and it is valid till 22.10.2012.It is also stated that he came to India by obtaining Visa at Londonfrom the Indian High Commission, London. While the matter stoodthus, the detenu was arrested on 20.1.2007 on the allegation thathe had committed offences under Sections 465, 468, 471 and 420 IPCand a case has been registered as Sri Ramachandra Medical CollegePolice Station Cr.No.97 of 2007. Thereafter, by order dated13.2.2007 in Crl.M.P.No.392/2007, the Principal Sessions Judge,Tiruvallur passed a conditional order directing release of thedetenu. However, soonafter the detenu came out of the CentralPrison, Puzhal, he was taken into custody by the Sub-Inspector andlodged in the Special Camp for Sri Lankan Refugees at Chengalpetand at that stage the order dated 7.2.2007 has been passed by theState Government in the purported exercise of power conferred underSection 3(2)(3) of the Foreigners Act, 1946 read with Notificationof Government of India, Ministry of Home Affairs, No.4/3/56(1) F-1dated 19.4.1958 that the detenu shall reside in the Special Campfor Sri Lankan immigrants / refugees, identified and located bythe Collector of Kancheepuram District at Chengalpet. It wasindicated that such detenu shall not leave the boundaries of suchSpecial Camp, except with the permission of the Collector. Thesaid order dated 7.2.2007 is being challenged in the present HabeasCorpus Petition by the father-in-law of the detenu.2. Learned counsel for the petitioner has contended thatthe so called Sri Lankan Refugees Camp is nothing but a prison andthe order directing that the detenu shall remain within suchSpecial Camp in fact amount to an order of detention contemplatedunder Section 3(2)(g) of the Foreigners Act, 1946, which power canbe exercised only by the Central Government and not by the StateGovernment. Validity of the detention order is also challenged onthe alternative ground that the State Government has erroneouslyassumed that detenu is a Sri Lankan National whereas the detenu isin fact a British citizen being a British Passport-holder. Theorder having been passed on erroneous assumption withoutapplication of mind is liable to be quashed.3. A counter affidavit has been filed on behalf of theState Government. In such counter affidavit it is not denied thatthe detenu was the holder of British passport. However, it isstated that the Special Camp is actually notified as a Camp forforeigners and it is not meant exclusively for Sri Lankan refugeesor foreigners of Sri Lankan origin, but it is meant for allforeigners. It is stated that the order has been passed in view ofSection 3(2)(e) of the Foreigners Act and the order is justified asthe detenu had committed offence under Sections 465, 468, 471 and420 IPC. In the counter affidavit, it is also denied that theSpecial Camp has to be equated with a jail and, therefore,direction to stay within the Special Camp cannot be construed asarrest and detention or confinement as contemplated under Section 3 https://hcservices.ecourts.gov.in/hcservices/ (2)(g) and, on the other hand, it is justified under Section 3(2)(e) of the Foreigners Act. It is further stated that within theSpecial Camp many facilities such as television, tape-recorder,fans etc., are provided to enable the inmates to lead normal lifeand the visitors are allowed from 10.00 AM to 5.00 PM.4. So far as the first contention raised by thepetitioner to the effect whether a Special Camp is meant only forSri Lankan refugees or foreigners of Sri Lankan origin alone isconcerned, learned Addl. Public Prosecutor has produced severalorders relating to establishment of Special Camp. It appears thatinitially there was Special Camp at different places and on thebasis of the request of the Inspector General, with a view toaccommodate inmates of such Special Camp, the Government notifiedSub-Jail premises at Chengalpattu as a Special Camp to accommodateSri Lankan Tamils. Such aspect is clear from G.O.No.SR.III.278--5/93 dated 8.6.1993. Subsequently, by G.O.Ms.No.1816 dated31.12.2004, on the basis of the suggestion made by the AdditionalDirector General of Police, a portion of such Special Camp, RoomNos.1 to 6 of such Camp at Chengelpet, was re-designated as theCamp to lodge Foreign Nationals other than Sri Lankan Tamils. Itis thus clear that the Special Camp at Chengelpat is a combinedCamp not only for the foreigners of Sri Lankan origin but also forother foreigners having other Nationality.5. Second contention of the petitioner to the effect thatthe order directing the detenu to stay within the Special Camp infact amounts to an order under Section 3(2)(g) of the ForeignersAct, is not acceptable in view of the decision of this Court in1995-2-L.W.(Crl.) 690(2) (KALAVATHY, ETC. v. STATE OF TAMIL NADU &OTHERS). In view of such Division Bench decision, which wassubsequently followed in H.C.P.No.1038 of 2003 dated 14.11.2003 andthe ratio of which has been now accepted by the Full Bench, thiscontention of the petitioner cannot be accepted. 6. Last contention of the petitioner, however, appears tobe on a stronger footing. The impugned order passed by the StateGovernment is extracted hereunder in extenso :-"... In exercise of the powers conferred by Section3(2)(3) of Foreigners Act, 1946 (Central Act 31 of 1946),read with the Notification of the Government of India,Ministry of Home Affairs, No.4/3/56 (1) F-1 dt. 19th April1958 for regulating the continued presence of theforeigner, Thiru Elango S/o. Ganespackiyam of Sri Lanka,who is a Sri Lankan National, the Governor of Tamilnaduhereby orders that the said Thiru Elango S/o.Ganespackiyam, shall reside in the Special Camp for Sri https://hcservices.ecourts.gov.in/hcservices/ Lankan immigrants/refugees identified and located by theCollector of Kancheepuram District at Chengalpattu.2. The said Sri Lankan Tamil Thiru Elango S/o.Ganesapackiyam shall not leave the boundaries of thespecial camp for Sri Lankan immigrants / refugeesidentified and located by the Collector, KancheepuramDistrict at Chengalpattu except with the permission ofthe Collector."7. A fair reading of the said order clearly indicatesthat the authority which passed the order of detention hasproceeded under the assumption that the detenu is a Sri LankanNational. The fact that the detenu is a British Citizen being theholder of GBR Passport No.302019733, is apparently not consideredby the authority. It is no doubt true that the Special Camp, asalready found, is not exclusively meant for Sri Lankan National,but also can be used as Special Camp for other foreigners and assuch any other foreigner can also be directed to stay within suchCamp provided the other conditions contemplated under Sections 3(2)(e) are satisfied. However, a perusal of the impugned orderindicates that the appropriate authority, namely, the StateGovernment, has not at all considered the question as to whetherthe person to be detained was a Sri Lankan Passport-holder or aGreat Britain Passport-holder.8. In our considered opinion, it is a relevantcircumstance and by not considering this aspect at all, it can besaid that there has been non-application of mind on the part of theauthority concerned.9. For the aforesaid reason, the impugned order passedcannot be sustained and it is bound to be quashed. However, it ismade clear that notwithstanding passing of such order, it would beopen to the concerned authorities to consider the matter afresh andpass any fresh order if the relevant facts and circumstances sonecessitate.10. During the course of hearing, learned counsel for thepetitioner has submitted that the detenu had been released on bail.In the interest of justice, we feel it necessary to direct that inaddition to the conditions imposed by the concerned court, thedetenu is also required to report before the concerned Court at10.30 AM on every working day. https://hcservices.ecourts.gov.in/hcservices/

11. Subject to the aforesaid observations and directions,the Habeas Corpus Petition is allowed to the extent indicated.DpkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Deputy Secretary to State of Tamil Nadu, Public (SC) Department, Fort St. George, Chennai 9.2. The Public Prosecutor, High Court, Madras.3. The Officer-in-chargeSpecial camp for Srilanka RefugeesChengalpet4. The Principal Sessions Judge,Tiruvallur District.+ one cc to Mr. T.M.C. Koushick, Advocate sr o. 52048ad(co)nm(21.08.07)ORDER IN HCP.NO.278/2007