He served two sentences. No case pending. Jail still held him.

Six years in jail, no crime pending: The Rohingya refugee who won his freedom from a Gwalior cell

Ahmed Almakki alias Ahmed had already served his time. Two separate three-year sentences under the Foreigners Act — one completed in September 2017, the other in July 2021. By December 2024, he had been locked inside Central Jail Gwalior for over six years. No criminal case was pending against him. No court had ordered his continued detention. Yet the jail gates did not open.

The reason? Neither Saudi Arabia nor Bangladesh would take him back. Ahmed, a Rohingya refugee born in Saudi Arabia to parents who fled Myanmar in the 1960s, was stateless. And the Union of India, as it admitted before the High Court of Madhya Pradesh at Gwalior, had no guidelines for what to do with foreign nationals who finish their sentences but cannot be deported.

So Ahmed remained in jail. Not as a convict. Not as an undertrial. But as a man the system simply did not know what to do with.

On 10 December 2024, a Division Bench of Justice G.S. Ahluwalia and Justice Roopesh Chandra Varshney put an end to that. In Ahmed Almakki alias Ahmed v. The State of Madhya Pradesh and Others (2024:MPHC-GWL:22210), the Court declared Ahmed's continued detention in Central Jail Gwalior violative of Articles 20 and 21 of the Constitution. It directed his immediate transfer to the Detention Centre in Assam — a proper facility, not a prison — pending resolution of his nationality and deportation.

The man who entered India on a fake passport

Ahmed's story begins not in Gwalior, but in Saudi Arabia, where he was born to Rohingya parents who had fled Myanmar in the 1960s. He held no citizenship anywhere. In 2013, desperate for an education, he obtained a fake Bangladeshi passport and left Saudi Arabia. Saudi authorities deported him to Bangladesh. From there, he entered India illegally and made his way to Gwalior.

In 2014, he was arrested. The first trial — before the JMFC/Sessions Court, Gwalior — ended in a conviction under Section 14(b) of the Foreigners Act, 1946 and Section 3 of the Passport (Entry into India) Act, 1920. Sentence: three years rigorous imprisonment. Case No. 16418/2014. He completed that sentence in September 2017.

But Ahmed was not released. Instead, he escaped from the detention centre where he was being held. He was recaptured, and a second FIR was lodged. In February 2021, the JMFC, Gwalior convicted him again — this time under Sections 4 and 14 of the Foreigners Act in RCT No. 3527/2018. Another three years RI. He completed that sentence in July 2021.

And still, he was not released.

What the Union of India admitted

By the time Ahmed filed his habeas corpus petition under Article 226 before the Gwalior Bench, he had been in continuous custody for over six years — all of it in Central Jail Gwalior, which the authorities had conveniently designated a "temporary detention centre" for him.

The Court asked the Union of India a simple question: what are your guidelines for dealing with foreign nationals who have completed their sentences but cannot be deported?

The answer, recorded in the judgment, was startling. The Union of India admitted it had no guidelines at all.

The Bench expressed shock. In paragraph 7 of the judgment, the Court called this a failure of the Central Government's responsibility. Here was a man who had served two full sentences, against whom no criminal case was pending, yet who remained locked up because the executive had not bothered to frame a policy for his situation.

The precedent that decided the case

The Court turned to Bhim Singh v. Union of India, (2012) 13 SCC 471. That case had already settled the law: foreign nationals who have completed their sentences cannot be kept in prison merely because their nationality confirmation is pending. They must be formally released from jail and kept at appropriate places — detention centres, not prisons — with basic facilities of electricity, water, and hygiene, with restricted movements pending deportation or repatriation.

The Division Bench followed Bhim Singh without hesitation. The ratio was clear: continued detention of a foreign national in a jail after completion of sentence, when no criminal case is pending, is violative of Articles 20 and 21 of the Constitution.

Article 20 protects a person from being punished twice for the same offence. Article 21 guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Ahmed had been punished twice. He had served his time. There was no law — no procedure — that authorised his continued incarceration in a jail.

The doctrine that mattered

The Court's reasoning rested on a simple but powerful proposition: a jail is for convicts and undertrials. A detention centre is for foreign nationals awaiting deportation. The two are not interchangeable.

Section 3(2)(e) of the Foreigners Act, 1946, read with Paragraph 11 of the Foreigners Order, 1948, empowers the government to restrict the movements of foreign nationals pending deportation. But that restriction must be exercised in a detention centre — a facility designed for that purpose — not in a prison.

By keeping Ahmed in Central Jail Gwalior and calling it a "temporary detention centre", the State had blurred a critical legal line. A jail, the Court held, cannot be converted into a detention centre by executive fiat. The distinction matters because the rights attached to each are different. A convict in a jail has no right to demand release. But a foreign national who has completed his sentence and is merely awaiting deportation has a constitutional right not to be imprisoned.

THE PLAY: If a foreign national has completed their sentence and no criminal case is pending, file a habeas corpus petition under Article 226 citing Bhim Singh v. Union of India (2012) 13 SCC 471. The continued detention in a jail — even if labelled a "temporary detention centre" — is unconstitutional under Articles 20 and 21.

What the Court ordered

The operative order was precise. The respondents were directed that, till Ahmed's nationality is adjudicated and he is deported, he shall be lodged in the Detention Centre, Assam. If shifting from Assam becomes necessary, the competent authority may move him to any other detention centre — but only by a formal order.

The Court did not order his release. It ordered his transfer from a jail to a proper detention centre. That distinction is critical. Ahmed remains in custody — but now in a facility that the law recognises as appropriate for his situation, with basic amenities that a detention centre must provide.

Why this matters in practice

For advocates, this judgment is a ready template. Every time a foreign national — Rohingya, Bangladeshi, or any other — completes a sentence under the Foreigners Act but remains in jail because deportation is delayed, Ahmed Almakki applies. The ratio is not limited to stateless persons. It applies to any foreign national whose post-sentence jail detention is not authorised by law.

For CFOs and founders, the judgment is a reminder that the rule of law applies to everyone within Indian territory — citizen or not. A company that employs foreign nationals must understand that their rights under Articles 20 and 21 are not diminished by their immigration status. If an employee is detained post-sentence, the company can cite this judgment to demand proper treatment.

For the Union of India, the judgment is a rebuke. The Court's shock at the absence of guidelines is recorded in the judgment. The Ministry of Home Affairs now has a clear judicial signal: frame a policy, or face more such petitions.

The bottom line

Ahmed Almakki spent over six years in a Gwalior jail after completing his sentences because neither Saudi Arabia nor Bangladesh would take him, and because the Union of India had no guidelines for what to do with him. The High Court of Madhya Pradesh at Gwalior has now held that this detention was unconstitutional. The remedy is not release — it is transfer to a proper detention centre with basic amenities, pending deportation. Every advocate with a foreign national client in prolonged post-sentence jail detention should cite Ahmed Almakki alias Ahmed v. The State of Madhya Pradesh and Others, 2024:MPHC-GWL:22210, and demand the same relief.