Calcutta HC Dismisses Writ Against Detention of Man Identified as Bangladeshi National, Draws Adverse Inference Over Undisclosed Burial Sites of Parents

A Division Bench of the Calcutta High Court rejected a challenge to the detention of a man identified as a Bangladeshi national, finding documents unreliable and drawing adverse inference after the petitioner withheld the burial locations of the detainee’s parents.

A Division Bench of the High Court at Calcutta, comprising Justice Debangsu Basak and Justice Ajay Kumar Gupta, dismissed a habeas corpus petition filed on behalf of a detainee held since 18 June 2026 as a suspected Bangladeshi national. The court, deciding Suman Molla v. The State of West Bengal and Ors. (WPA(H)/58/2026) on 20 July 2026, found that neither the writ petitioner — who claimed to be the detainee’s uncle — nor the detainee himself had discharged the burden of proving Indian citizenship. The bench drew adverse inferences after the petitioner repeatedly refused to identify where the detainee’s parents were buried, preventing the court from directing DNA testing. The detention was found to comply with the Ministry of Home Affairs Circular dated 2 May 2025, which was not challenged in the petition.

The Detention and the Petition Before the Court

A detention order was issued against the detainee on 18 June 2026 under the Immigration and Foreigners Act, 2025, read with paragraphs 8 and 12 of the Immigration and Foreigners Order, 2025. The detention order recorded that inquiry, interrogation and verification had been conducted, and that authorities were satisfied the detainee was a Bangladeshi national. The detainee, who claimed to be 46 years old, was housed in a detention centre at the time of the hearing.

The writ petitioner, Suman Molla, filed WPA(H)/58/2026 before the Constitutional Writ Jurisdiction of the Calcutta High Court. He identified himself as the uncle of the detainee and contended that the detainee was an Indian citizen who had been wrongfully detained. The petitioner had initially made a complaint to the police on 18 June 2026 regarding the detention.

Counsel for the petitioner argued that in the Special Intensive Review (SIR) of 2026, the detainee had been classified as “under adjudication” and that his name had been struck off the Voters’ List. An appeal against that deletion was said to be pending. The petitioner’s counsel submitted that without disposal of the appeal, the detainee’s citizenship could not be conclusively decided, and that the detainee had not been given a hearing before the Tribunal in the SIR process.

The petitioner also pointed to the great-grandfather’s entry in the C.S. Record of Rights in respect of an immovable property, the detainee’s Voter Identification Card, a bank account, and documents relating to the detainee’s paternal aunt. The Supreme Court’s judgment in Sabitri Dey @ Swasthi Dey & Ors. v. Union of India & Ors. (2026 INSC 694) was relied upon for the proposition that a detainee must be heard before detention and deportation.

The Legal Framework: Immigration and Foreigners Act, 2025 and the MHA Circular

The court noted that the Immigration and Foreigners Act, 2025 came into force on 4 February 2025, repealing the Foreigners Act, 1946 among other statutes. Under Section 16 of the 1946 Act — the onus provision — when Indian authorities allege that a detainee is a foreign national, the burden of establishing nationality lies on the detainee. The bench treated this principle as applicable in the present proceedings.

The MHA Circular dated 2 May 2025 lays down the procedure for dealing with illegally staying Bangladeshi and Rohingya nationals apprehended in the country. Under the Circular, a detainee is given 60 days to establish Indian citizenship. The bench noted that as of the date of the hearing, the detainee had not submitted any document under the Circular to establish citizenship. The Circular was not under challenge in the writ petition, and there was no allegation that the detention was not carried out in accordance with it.

Counsel for the Union of India submitted that all States are required to follow the Circular. The State placed a report before the court — which included the detention order dated 18 June 2026 — and played a video recording of the detainee admitting himself to be a foreign national. This admission, made while in the detention centre, was recorded and presented in open court in the presence of the petitioner’s counsel.

Distinguishing Sabitri Dey @ Swasthi Dey

The petitioner’s reliance on 2026 INSC 694 required the bench to examine its applicability. The Division Bench observed that Sabitri Dey @ Swasthi Dey arose in the context of proceedings under Section 9 of the Foreigners Act, 1946, read with the Foreigners (Tribunal) Order, 1964, in respect of persons in the State of Assam. That judgment addressed the burden of proof under Section 9 of the 1946 Act, observed it was premised on the Indian Evidence Act, 1872, and held that the Tribunal is not relieved from its obligation to conduct a lawful adjudication even where the burden lies on the proceedee.

The bench in the present case found the factual matrix and legal framework to be different. The detainee here was not before a Foreigners Tribunal under the 1964 Order. He was being detained under the Immigration and Foreigners Act, 2025, and the MHA Circular of 2 May 2025. The Circular was unchallenged, and the procedure it mandated was found to have been followed. The bench accordingly declined to apply the ratio of Sabitri Dey @ Swasthi Dey to the facts before it.

Documents Examined and Found Insufficient

The bench undertook a document-by-document assessment. A Voter Identity Card was found not to be conclusive proof of citizenship — it evidences enrolment in the electoral roll, but the detainee’s name had already been struck off in the SIR 2026 process. The Aadhaar Card, PAN Card, and the bank passbook of United Bank of India were individually found insufficient to establish Indian citizenship. The C.S. Records of Rights of the great-grandfather and grandfather were noted but found not to conclusively establish citizenship. The passbook of a bank account and the passport issued in favour of the paternal aunt did not, in the court’s view, establish a conclusive connection to the detainee.

The bench went through the citizenship provisions of the Citizenship Act, 1955. Section 3 provides for citizenship by birth, Section 4 for citizenship by descent, and Section 5 for citizenship by registration. The court found that no birth certificate was produced, and that adequate material to establish the detainee’s place or date of birth was absent. Citizenship by birth was therefore not established.

On citizenship by descent, the bench identified what it called “cavernous disconnections.” The father’s name varied across documents. The petitioner’s counsel could not connect the maternal aunt to the detainee through the documents on record, and the Indian citizenship of the persons through whom descent was claimed was itself unproven. No claim was made under Section 5 of the Citizenship Act, 1955.

Adverse Inferences Drawn Against Petitioner and Detainee

The bench heard the writ petition on 9 July 2026 and 15 July 2026 before the final hearing on 20 July 2026. On each occasion, the court inquired about the whereabouts of the detainee’s parents. The response on the first two dates was that the detainee could not be contacted since he was in detention. On 20 July 2026, before the recess, the court permitted the petitioner’s counsel to speak with the detainee over the phone, with the State facilitating the call. During the call, the detainee claimed his parents had died in India but said he could not identify the places where they were buried.

The bench had sought this information specifically to consider directing DNA testing of the detainee against the mortal remains of his parents — a step that would have helped establish whether the parents were, in fact, in India. The court observed that whether the petitioner was the uncle or the cousin of the detainee, in either relationship he would ordinarily know where the detainee’s parents were buried. His continued refusal to provide that information led the bench to draw an adverse inference against both the writ petitioner and the detainee with regard to the parents being Indian citizens.

The petitioner’s conduct was also scrutinised independently. His police complaint described him as a cousin of the detainee; the writ petition described him as the detainee’s uncle. The affidavit verifying the writ petition stated the petitioner was 38 years of age. The detainee claimed to be 46. The claim that a 38-year-old was the uncle who had raised a 46-year-old after the latter’s father died in 1980 was disbelieved. The bench found that the petitioner had not approached the court with clean hands.

On the admission of the detainee made while in the detention centre, the bench noted the absence of any criminal proceedings against the detainee and declined to resolve the question of whether an admission of civil liability made during detention carries the same consequences as a confession made to police in a criminal matter. But it observed that even setting the admission aside entirely, the burden of establishing Indian citizenship remained on the detainee, and that burden had not been discharged.

Outcome

The bench, finding no ground to interfere with the detention, dismissed WPA(H)/58/2026 without any order as to costs. Justice Debangsu Basak authored the judgment. Justice Ajay Kumar Gupta recorded his concurrence separately.