Telangana High Court Sets Aside Detention Order Against 'Pakistani National', Says No Allegation Of Violation Of Bail Conditions

The Telangana High Court has set aside the detention order issued against a "Pakistani national" who is accused of submitting forged voter ID and Aadhaar Card to obtain an Indian passport. While the detenu Shaik Gulzar Khan @ Gulzar Massih was granted bail in the related criminal case in March 2020, he was being detained since February last year at Central Prison, Cherlapally, Hyderabad.

A division bench of Justice K. Lakshman and Justice P. Sree Sudha ordered the police to release the detenu forthwith "on furnishing a copy of bail order by complying with the conditions" imposed by trial court "and if he no longer requires in any other criminal cases."

"However, this order will not preclude 4th respondent [Union of India] in completing the process of deportation of the detenu in accordance with law," said the court.

Khan's wife had challenged the permission granted by the state government (Principal Secretary Department of General Administration SpI Law and Order) to Director General of Police, Telangana for detaining him, till his deportation process is completed. Khan is facing charges under Sections 468, 469, 471 of IPC read with Section 14 (A) of Foreigners Act, 1946 and Section 12 (1) (b) of the Indian Passport Act, and Section 3 of Passport (entry into India) Act, 1920, in the criminal case registered in 2019.

Special Government Pleader, Advocate Mujib Kumar Sadasivuni, contended that that the state government has accorded permission to DGP to detain the detenu considering the allegations and also by following the due procedure laid down under law. However, advocate M.A Shakeel, representing the petitioner, said the state government is not having power to accord permission to the DGP to detain the detenu in exercise of powers conferred under Section 3(2) (e) of the Act.

"In the Notification dated 19.04.1958, Section 3(2) (e) is not included. The same was inserted by Act 42/1962. Therefore, 1st respondent has no power to accord permission to 2nd respondent to detain the detenu under Section 3(2) (e) of the Act. He has placed reliance on the judgment dated 15.09.2022 of Division Bench of this Court in W.P.No.6407 of 2022 and batch," the petitioner's counsel said.

Advocate V.T. Kalyan, representing the Deputy Solicitor General of India, contended that there are serious allegations against the detenu. "Deportation process is under progress. Invoking power under SO No.590, dated 19.04.1958, the aforesaid G.O.Rt.No.599, dated 02.11.2021 was issued by 1st respondent according permission to 2nd respondent [DGP] to detain the detenu till deportation process is completed. There is no error in it," the counsel representing Union government said.

The bench said that the court last year, while dealing with the case of Myanmar nationals and other foreigners, held that no power was delegated to state government by Centre under Section 3(2)(g) of the Act. The counsel representing the union government told the court that no SLP has been filed against the decision.

"We respectively agree with the view taken by the coordinate Bench in common order, dated 15.09.2022 in W.P.No.6407 of 2022 and batch. The lis involved in the present writ petition is also squarely covered by the said order. 1st respondent accorded permission to the 2nd respondent in exercise of its powers under Section 3(2)(g) of the Act which is not included in the aforesaid notification dated 19.04.1958," said the bench.

The court also said that there is no allegation against the detenu that he has violated any of the conditions imposed by the trial court in the bail order. "In the counter itself, 3rd respondent stated that the detenu is working as painter in the locality and non-controversial with any one," it added, while declaring the detention illegal.

Title: Shaik Daulath Bee vs. State of Telangana

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