Detention In Deportation Centers Is An Executive Function Under Foreigners Act, Must Follow Natural Justice: Delhi High Court

However, the Court emphasised that such executive decisions must adhere to the principles of natural justice, requiring a reasoned order and an opportunity of hearing, and cannot be exercised arbitrarily merely on the assertion that a foreigner without valid documents poses a security concern.

The Bench, accordingly, directed release of the Nigerian national, accused under NDPS Act, 1985 considering his guilt has not yet been established, and the mere pendency of the trial cannot justify his continued detention in a deportation center.

Justice Neena Bansal Krishna observed, “…it is evident that a person, who is facing trial in criminal case, may be directed to be detained or released on Bail by the Court of competent jurisdiction. However, it is not within the domain of the Court to direct detention or release from the detention centers. In terms of Section 3 of the Foreigners Act, 1946, it is an executive function, which vests exclusively with the Central Government…it is also pertinent to observe that such Orders, even though Executive, need to comply with the fundamental Principles of Natural Justice, meaning thereby that they not only have to be reasoned, but an opportunity of hearing must be given to the person detained, to explain his circumstances and his credibility to be able stay in India. Mere assertion that being a foreigner without requisite documents, is a security concern, would not be in consonance with the provisions of the Foreigners Act, 1946, which envisages release of the foreigner in the given circumstances, on such terms...”.

“It cannot be overlooked that merely because a special Permit or stay document is issued in favour of such foreign national, would not legitimize his earlier offence or his over stay in India, in violation of the Foreigners Act, 1946, but would only ensure that they are not unnecessarily detained in the Detestation Centers at the State expense; they are permitted to be in the situation where they can meet the requirement of facing the trial, subject to furnishing of the bonds / sureties and to ensure the compliance of the conditions imposed therein. This would ensure judicious balance between the liberty of human right of a foreigner with the interest of the State to ensure the presence of the foreign national for the purpose of facing trial”, the Bench further observed.

The Court while directing the release, observed that once a foreign national has been granted bail in a criminal case, he cannot continue to be detained in a deportation or restriction centre without a valid cause and due process of law.

Advocate Anoop Kumar Gupta appeared for the petitioners, and Amol Sinha, ASC, Sandeep Kumar Mahapatra, CGSC appeared for the respondents.

The petitioner had argued that his continued detention was illegal and contrary to the provisions of the Foreigners Order, 1948, particularly Section 5(2)(b), which provides that leave may be refused if the presence of the foreigner is required in India to answer a criminal charge.

The petitioner had earlier been arrested in for allegedly staying in India without valid travel documents in violation of Section 14 of the Foreigners Act, 1946. He was subsequently convicted in that case and sentenced to the period of imprisonment already undergone along with a fine. Even after completing the sentence, he continued to remain in custody at a deportation or restriction center.

Apart from the violation of Section 14, the petitioner was also named in an FIR under Sections 21B, 27A, 61 and 85 of the NDPS Act, 1985, where a co-accused allegedly made a disclosure statement linking him to the recovery of narcotics.

However, considering the parallel circumstances, the question that the Court had to adjudicate upon was whether the continued detention of a foreign national in a detention/deportation center, despite grant of Bail by a competent court and pendency of a criminal trial requiring his presence in India, is lawful under the Foreigners Act, 1946 and the Foreigners Order, 1948.

Consequentially, the Bench directed the Petitioner to be released forthwith from the Deportation/Restriction Centre, subject to the Petitioner furnishing his permanent address and mobile number(s) to FRRO.

Cause Title: Samuel Akujuobi & Anr. v. Union Of India [Neutral Citation: 2026:DHC:1980]

Appearances:

Petitioners: Anoop Kumar Gupta and Rohan Gupta, Advocates.

Respondents: Amol Sinha, ASC for State, Kshitiz Garg, Ashvini Kumar, Nitish Dhawan, Chavi Lazarus and Manan Wadhwa, Sandeep Kumar Mahapatra, CGSC., Mrinmayee Sahu, Sugam Kumar Jha, Sreedass K. P., Tribhuvan, ⁠Raghav Tandon and ⁠Amit Acharya, Advocates with Inspector Satish Kumar from FRRO.

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