Foreign National on Bail for Pending Trial Cannot Be Indefinitely Detained in Deportation Centers.

In brief

The question

Whether the continued detention of a foreign national in a deportation centre is lawful when they have been granted bail by a competent court and their presence is required in India to face a pending criminal trial.

The court held

The Court held that the Petitioner cannot be detained indefinitely in a deportation centre while facing a trial in which he has been granted bail.

It also directed

The Court ordered the Petitioner’s immediate release from the Sewa Sadan Deportation Centre.

The Petitioner was directed to furnish his permanent address and mobile number to the FRRO, report to the local police station every Saturday, and apply for a formal stay permit/visa co-terminus with his trial.

The Court clarified that the authorities remain free to initiate deportation proceedings once the criminal trial concludes.

01Facts

The Petitioner, a Nigerian national, was arrested in July 2020 for residing in India without a valid passport/visa (FIR No. 198/2020).

p. 2

He was convicted on 28.09.2021 and sentenced to "imprisonment already undergone," with a direction to be transferred to a Deportation Centre.

p. 3

However, while that trial was pending, he was also accused in a separate NDPS Act case (FIR No. 141/2021) in Hisar, Haryana.

p. 3

Although the Hisar Court granted him regular bail on 30.09.2021, the Foreigner Regional Registration Office (FRRO) continued to detain him at the Sewa Sadan Deportation Centre, Lampur, citing his status as an "illegal migrant" without travel documents.

p. 4, 7

The Petitioner challenged this continued detention as a violation of his fundamental rights, arguing he must remain in India to face the pending NDPS trial.

p. 4

02Issues

i.Whether the continued detention of a foreign national in a deportation centre is lawful when they have been granted bail by a competent court and their presence is required in India to face a pending criminal trial.

p. 10 / para. 36

03Law Applied

The Court primarily considered Section 3 of the Foreigners Act, 1946, which grants the Central Government absolute power to regulate, restrict, or detain foreigners.

p. 10, 11

It examined Section 5(2)(b) of the Foreigners Order, 1948, which stipulates that permission to depart (or deportation) should be refused if a foreigner’s presence is required to answer a criminal charge.

p. 4, 18

The Court relied on *Supreme Court Legal Aid Committee v. Union of India* (1994), which allowed for the release of foreign undertrials subject to the impounding of passports and embassy certificates.

pp. 13-14

The Court relied on *Emechere Maduabuchukwu v. State (NCT of Delhi)* (2023), which held that a detention centre is not a substitute for judicial custody and cannot be used to bypass bail orders.

p. 6, 16

Provisions in the judgment · 9 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 376 Section 506

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 21 Section 61 Section 85

Citizenship Act, 1955 Section 2

Code of Criminal Procedure, 1973 Section 482 Section 313 Section 439

04Reasoning

The Court reasoned that while the government has the sovereign power to regulate a foreigner’s stay under Section 3 of the Foreigners Act, this power must be exercised in a way that balances national security with the fundamental rights mentioned in Article 21.

p. 13, 14

The Court observed that a "Detention Centre" is for executive deportation processes, not for judicial custody of undertrials.

p. 18

Since the Petitioner was granted bail in the NDPS case, his continued detention by the FRRO effectively nullified the judicial order of bail.

p. 10, 18

The Court noted that Section 3(2) of the Act offers alternatives to detention, such as requiring a foreigner to reside in a particular place or furnishing a bond.

p. 12

Furthermore, Section 5(2)(b) of the Foreigners Order, 1948, expressly contemplates that a foreigner facing criminal charges should not be deported until the trial concludes.

p. 18 / para. 60