Declared Foreigner Who Re-Entered India After Expulsion Not Entitled To Bail Despite Prolonged Detention: Gauhati High Court

The bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund held that the Immigration and Foreigners Order 2025 empowered the State to impose restrictions on the movement of illegal migrants pending their expulsion. Thus, the court refused relief for a Bangladeshi Hindu man who had entered India illegally.

“Under the erstwhile Foreigner's Act, 1946 the provision for such detention or confinement was provided under Section 4 of the Foreigner's Act, 1946 and similar provision is available in paragraph 12 of the Immigration and Foreigner's Order, 2025, which empowers the State to impose restrictions on movement for illegal migrants pending their expulsion. Therefore, as in this case, the learned standing counsel for the FT and Borders matters has been able to show that the petitioner was expelled from the Country and thereafter he had re-entered into India illegally and was apprehended, notwithstanding his prolonged detention, the Court does not find the petitioner to be entitled to bail,” the court said.

The court was hearing a plea filed by a man, Uttam Das, seeking a direction to the authorities to permit him to apply for citizenship under the Citizenship (Amendment) Act 2019 and to release him from the Holding Centre at Matia on bail and further to stay his deportation.

Das was declared a foreign national through an ex-parte opinion dated September 1, 2009, by the Foreigners' Tribunal in Goalpara. Though this was challenged, the High Court had dismissed the plea and the ex-parte opinion had attained finality.

The Judicial Magistrate then took cognisance of the offence, and Das was convicted on September 26, 2017 under Section 6(a) of the Passport (Entry into India) Rules 1950 and Section 14(c) of the Foreigners Act 1946, and sentenced to rigorous imprisonment for 2 years and a fine of Rs 2000.

Das argued that though he had been incarcerated since 2016, the State had not taken any steps to deport him to Bangladesh and thus he was entitled to bail. He also submitted that his wife had applied for registration under Section 6(A) of the Citizenship Act.

Das submitted that he is entitled to exemption from being sent back to the specified territory under the provisions of the Immigration and Foreigners (Exemption) Order, 2025. He also argued that he was entitled to benefit under the Citizenship Amendment Act, and that the said provisions are required to be read together with the Foreigners (Amendment) Order, 2015 and Passport (Entry into India) Amendment Rules, 2015. He also argued that since he belonged to the Hindu community, which was a minority in Bangladesh, he was entitled to exemption from being expelled from the country.

The court noted that the petitioner was pushed back on April 9, 2010 and was again apprehended in Indian territory. The court noted that in the rest of the Country, the executive could order the expulsion of the foreigner/illegal migrant. However, in Assam, the illegal migrants who entered India without any valid document were subjected to proceedings before the jurisdictional Foreigners Tribunal, and after being declared as illegal migrants, they were expelled from the country.

The court further noted that if a declared foreign national could not be expelled from the country due to any reason, such person could be held in areas earmarked for the purpose. The court noted that the person cannot seek bail on the ground of prolonged detention.

Though the petitioner claimed that he was entitled to the benefit of Citizenship (Amendment) Act, the court noted that as per the judgment of the Supreme Court, immigrants who migrated between 01.01.1966 and 24.03.1971 (both inclusive) and who have been detected as foreigners but have not registered themselves with the registering authority within the prescribed time limit as per the Citizenship rules were not entitled to the benefit of citizenship.

When the petitioner argued that the same was a minority view of the Supreme Court, the court held that the same cannot be said to be a minority view when the single judge had concurred with the majority decision.

The court thus held that when the petitioner is declared as a foreigner, the court cannot issue an order directing him to be allowed to register himself under the Provisions of Section 6 A of the Citizenship Act in view of the law laid down by the Supreme Court of India.

Thus, finding no merits, the court dismissed the plea.

Counsel for Petitioner: MR. T K DEY, MR SAURADEEP DEY,MR. D K AGARWALA

Counsel for Respondent: DY.S.G.I., SC, F.T,GA, ASSAM

Case Title: Uttam Das v The Union of India and Others

Case No: WP(C)/3385/2026