The High Court of Kerala has directed the authorities of Viyyur Central Prison in the state to allot separate cells and A-class facilities to two Nigerian nationals, who were detained there for alleged violation of the provisions of the Foreigners Act, 1946.
The interim order was passed in a writ petition filed by Aniogu Uchechukwa Paschal and Nanna Ekena Fidelis, who contended that foreigners cannot be kept in prisons along with other convicts and undertrials for alleged violation of the Foreigners Act.
Referring to the "Model Detention Centre/Holding Centre/Camp Manual" formulated by the Central Government in 2019, the petitioners, through their lawyers Adithya Rajeev and Girish Kumar MSK, argued that States are obliged to set up detention centres/holding centres for foreigners outside jail premises. Also, the manual prescribes the minimum living standards for detentions centres, which are higher than prisons. Further, strict prison regimes applicable to under trial and convicted prisoners should not be made applicable to the foreigners who are detained.
Therefore, the petitioners challenged the order passed by the Foreigners Regional Registration Officer, Cochin, directing their detention in Central Prison Viyyur.
"...in the absence of any detention centres established by the 3rd respondent (State Govt) and in the absence of any suitable alternate arrangements made in accordance with the Detention Centre/Holding Centre/Camp Manual, the present attempt of the 1st respondent(FRRO) to detain the petitioners in Viyyur Central Jail, is unlawful", stated the writ petition.
Such detention amounts to violation of right to life and personal liberty under Article 21, the petitioners argued.
The Central Government informed the Court through a statement that State of Kerala doesn't have a detention centre to detain foreigners. There have been occurrences where foreigners detained outside jail premises escaping, the Centre told the Court. Also, the State Government has the power to declare a portion of the central prison as detention centre and to ensure continuous co-operation of the accused foreign nationals to the investigation process.
Considering the particular situation of non-availability of detention centre in the state, a bench of Justice Anu Sivaraman passed an interim order stating
"There shall be an interim direction that the petitioners will be allotted separate cells and granted facilities of A-class prisoners, provisionally subject to further orders in this writ petition".
The foreigners were first arrested in February 2019 on a criminal case for cheating. They were granted bail in April 2019 on several conditions, one among them being the surrender of passports before the court. They filed an application for modification of this condition stating that their passports have already been seized by the investigating officer.
In response, the police filed a report stating that they arrived in India using some other travel documents, and not on the basis of passports seized by the the investigating officer.
The petitioner challenged the bail condition to surrender passport before the High Court. Not only did the High Court refuse to interfere, but also it ordered that appropriate proceedings must be initiated against them under Foreigners Act in respect of discrepancy in their travel documents.
This led to the order passed by FRRO Cochin in March 2020 regarding their detention in Viyyur Prison.
The writ petition has been kept pending by the High Court to consider the larger issue of setting up of foreigners detention centres as per the guidelines.
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