Continued Detention Of Saudi Born "Rohingya Refugee" In Jail Despite Completion Of Sentence Violates Article 21: Madhya Pradesh High Court

While considering the case of a man–born in Saudi Arabia and claiming to be a Rohingya refugee–the Gwalior Bench of Madhya Pradesh High Court said that his detention in the city's Central jail after completion of his sentence for allegedly having a foreign passport violated his right to life under Article 21 of the Constitution of India.

It further directed that till the man's nationality is adjudicated and he is deported back to his country, he be kept in a detention centre in Assam.

In the present case, the petitioner claimed to be a Rohingya refugee and in order to save their lives his parents had moved from Myanmar to Saudi Arabia in 1960. It was claimed that his family was given refuge by Saudi Government and documentation of identity and residence were provided to the family by the Government of Saudi Arabia. He and his siblings were born in Saudi Arabia; in 2013 the petitioner claimed that he got in touch with a Bangladeshi national living in Saudi Arabia, who promised him safe passage out of country, as refugees in Saudi Arabia do not have right to leave the country. He was however deported to Bangladesh in 2013 by the Saudi Government upon learning that he had an invalid Bangladeshi passport.

After struggling for livelihood and harassment he came to India and reached Gwalior where he was taken in custody in 2014. He was booked for offences under Sections 14B of the Foreigners Act, 1946 (Penalty for using forged passport) and Section 3 of Passport Act, 1920 (Passport or travel document for departure from India). He was sent to judicial custody in Central Jail, Gwalior where he was sentenced to undergo three year imprisonment until September 22, 2017. Since the officials could not determine citizenship of petitioner, he was temporarily sent to Detention Centre operated Padav Police Station where he was kept in a room for approximately 9 months.

He claimed that the Detention Centre was unsuitable for human habitation, influxed with rodents and inedible food and that he was physically and mentally assaulted as well as harassed. He claimed that he was never informed about the status of his deportation; the petitioner then escaped from Detention Centre on June 12, 2018 and went to Hyderabad, but he was brought back on June 23, 2018. Thereafter, an FIR was registered against him under Foreigners Act and he was again sentenced to three years of jail time. He claimed that despite undergoing the second sentence he still languishing in prison.

Taking note of the facts and circumstances, a division bench of Justice Gurpal Singh Ahluwalia and Justice Roopesh Chandra Varshney observed in its December 10 order:

“In the present case, the petitioner has already undergone the jail sentence twice and at present he is no more required in any criminal case. Thus, his detention in Central Jail Gwalior (which has been declared as temporary detention centre), is violative of Article 20 and 21 of Constitution of India. Therefore, the respondents are directed that till the nationality of the Petitioner is adjudicated and he is deported back to his Country, he shall be lodged in Detention Centre, Assam. For any reason, if the shifting of petitioner from Detention Centre Assam is found to be necessary, then he can be shifted to any other Detention Centre by the orders of the competent authority.”

Meanwhile on July 2, 2021 the Superintendent of Police, Gwalior issued a letter to Superintendent, Central Jail, Gwalior directing them to treat the Central Prison as a temporary Detention Centre for petitioner. The District Collector, Gwalior also sent a letter to Principal Secretary, Home Ministry thereby informing that Central Jail shall be treated as temporary Detention Centre for the purpose of stay of petitioner.

The counsel for the petitioner submitted that since then petitioner is languishing in Jail even after completing two sentences. He prayed that the petitioner may be shifted to some Detention Centre till question of his citizenship is decided and he be deported to the respective country and that the State Government must ensure that the Detention Centre has basic amenities like electricity, safe drinking water, hygiene, accommodation with beds, toilets/baths, communication facilities, provision for kitchen, proper drainage and sewage facilities as provided in the Model Detention Centre/Holding Centre/Camp Manual.

The high court in its earlier order of December 9, had said that it was clear that the petitioner was "under illegal detention". The court had also expressed its "shock" at the fact that the Union of India, "who is responsible for framing the guidelines, has expressed its helplessness on the ground that they have not framed any guidelines to deal with situation in hand".

It had then thereafter directed, “Accordingly, counsel for State as well as Union of India are granted a day's time to address as to whether Union of India is ready to take action as per directions by this Court by order dated 23.10.2024 or else State Government as well as Union of India are ready to pay cost of illegal detention on monthly basis to petitioner.”

On December 10 when the matter was listed, the counsel for Union of India submitted that Saudi Arabia had refused to take the petitioner back to its Country and talks with Bangladesh were going on. It was further submitted that in cases where no Country decides to take its citizen back to its country, then such persons are kept in detention centres. Thus, since talks with Bangladesh are going on, therefore, the petitioner can be kept in detention centre situated in West Bengal or Assam, the counsel said.

The counsel for Petitioner relying upon Supreme Court's decision in Bhim Singh Vs. Union of India (2012) submitted that the petition may be disposed of with a direction to the respondents to lodge the petitioner in Detention Centre, Assam.

Thus, the court concluded that the petitioner had already undergone the jail sentence twice and his detention at Central Jail, Gwalior was violative of Article 20 (Protection in respect of conviction for offences) and 21 (Protection of life and personal liberty) of Constitution of India.

"Therefore, the respondents are directed that till the nationality of the Petitioner is adjudicated and he is deported back to his Country, he shall be lodged in Detention Centre, Assam. For any reason, if the shifting of petitioner from Detention Centre Assam is found to be necessary, then he can be shifted to any other Detention Centre by the orders of the competent authority," the court directed.

The petition was hence, disposed of.

Case Title: Ahmed Almakki Alias Ahmed Versus The State Of Madhya Pradesh And Others, Writ Petition No. 1818 Of 2023

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