People's Union for Civil Liberties vs State of Jammu & Kashmir

S.K. Gupta, J.—One Amir Ali S/O Mohd All R/o Qadirabad Saniwal, Sialkot, Pakistan, a foreigner within the meaning of Foreigners Act,

has been detained in custody by the Government (Financial Commissioner, Home) vide order No. Home (PBV) 1639 of 2003 dated 27.11.2003

u/s 8(1)(b) of the J&K Public Safety Act (hereinafter for short referred to as 'the Act') with a view to regulate his continued presence in the State.

The detention of Amir Ali has been ordered for a period of 24 months and lodged in Central Jail, Kot Bhalwal, Jammu. The detention of the

petitioner has been challenged by the People's Union for Civil Liberties, Jammu & Kashmir Chapter, through its Convener Balraj Puri, mainly on

the ground that the detention order has been passed without legal sanction and in a mechanical manner. Further plea put across by the petitioner is

that the order of detention has been passed when he has already undergone the punishment for the offence he had committed. That the

Government without recording its satisfaction that Amir Ali being a threat to the security of the State had been detained under the Public Safety

Act. That the detenue has become a victim of depression on account of illegal act of the State in passing an order of his detention for a period of

24 months and, thus, seeks to quash the order of detention passed in respect of Amir Ali by the Government on 27.11.2003 with a further

direction to the Government to take immediate steps to deport him to Pakistan, his native country besides granting compensation for illegal

detention.

The respondents in their reply submitted that Amir Ali, a Pakistan national, came to be apprehended by the police in village Rattanpur, Tehsil

Samba for having crossed over to Indian Territory without valid document. An F.I.R. No. 68/2001 was registered against the detenue with Police

Station, Ramgarh. After investigation, the detenue was tried by the Judicial Magistrate First Class, Samba and penultimately convicted in proof of

offence with which he stood charged. On the expiry of the period of sentence, the detenue was released from the Central Jail and the matter for his

deportation to Pakistan was taken up with the Competent Authority but his deportation could not materialise and in order to regulate his continued

presence in the State being a Foreign National, the order of detention came to be passed by the Government u/s 8(1)(b) of the J&K Public Safety

Act, 1978. The respondents further submitted that the State Government has taken up the matter of Amir Ali, Pak national, for his deportation to

his native country with the Ministry of Home Affairs, Government of India and the order is still awaited. It is also submitted by the respondents that

the steps for his deportation will be taken soon after the order is received from the Central Government and on completion of the requisite

formalities.

I have heard learned Counsel appearing for the respective parties and considered their rival contentions.

It is not in dispute that the detenue has already undergone the punishment awarded to him for having crossed the Indian border and entered the

territory of Jammu & Kashmir without valid document. The matter for his deportation has been taken up with the Ministry of Home Affairs,

Government of India, as is contended by the respondents in their demurrer. The detention order of Amir Ali has been passed u/s 8(1)(b) of the Act

only with a view to regulate his continued presence in the State of J&K. The aforesaid provisions of the Act empowers the Government, if satisfied

with regard to a person within the meaning of Foreigners Act that with a view to regulate his continued presence in the State or with a view to

make arrangement for its expulsion from the State, it is necessary to make an order directing that such person be detained. Even the respondents in

their reply have unambiguously stated that the detention of Amir Ali has been directed in awaiting the order of his deportation from the Ministry of

Home Affairs, Government of India.

In the facts and circumstances of the case, the impugned order passed by the Government In directing the detention of Amir Ali, a Pak national,

till order of his deportation is received from the Ministry of Home Affairs, Government of India, is valid. Keeping in view the purpose for which the

detention order has been passed by the Government in respect of the detenue, in my opinion, is not illegal nor invalid.

In case of a foreign national, as in the instant case, it is for the competent authority to decide whether to detain him under the Public Safety Act

or to deport him. It is not for the Court to say which is a better course as has been held in David Patrick Ward and Another Vs. Union of India

(UOI) and Others,

In the above view of the matter, the order of detention passed in respect of Amir Ali by the Government is legally sustainable and valid.

For what has been stated and discussed above, I do not find any merit in this Habeas Corpus petition and is, accordingly, dismissed.