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PETITIONER: ANWAR

       Vs.

RESPONDENT: THE STATE OF J. & K.

DATE OF JUDGMENT: 07/07/1970

BENCH: DUA, I.D. BENCH: DUA, I.D.

CITATION:  1971 AIR  337            1971 SCR  (1) 637  1970 SCC  (2) 411

ACT: Constitution   of  India  Articles  19,  20   &   22--Habeas corpus--Claim  by  foreigners--If  maintainable--Foreigner’s Act,  (31 of 1946) S. 3(2)--Order of deportation if  can  be passed by the State Government.

HEADNOTE: The  petitioner a Pakistani national, who had entered  India illegally was detained for the purpose of expelling him from India.   Instead  of making any representation  against  the detention  order,  he challenged his detention by  filing  a writ  of habeas corpus in this Court.  This  Court  directed rule  nisi.   The state revoked the order of  detention  and ordered  the deportation of the petitioner from India  under section 3(2) of the Foreigners Act read with the Ministry of Home Affairs Notification issued under S.O. 590 dated  April 9, 1958.  Dismissing the petition, this Court.-- HELD : (i) The petitioner was a foreigner as defined in  the Foreigners  Act and not being a citizen, he was clearly  not entitled  to any fundamental right guaranteed by Article  19 of  the Constitution.  His entry into this country was  also without any right, he had thus no right to remain within the territories  of  India.  The order of  the  deportation  was consistent  with the order of detention which was also  made with  the object of expelling him from India.  The order  of his  release, if made by this Court, would, not only  result in  his presence in a part of India in contravention of  the statutory  provisions  but  would  in  addition  render   it somewhat difficult for the authorities to enforce compliance with  the order of his expulsion.  In  these  circumstances, the  restraint  on his personal liberty for the  purpose  of taking him to the border in order to expel him from India in accordance  with the statutory provisions could by no  means be  considered to be an illegal custody justifying an  order of release by this Court. [639 B-C, 644 H] (ii) Habeas corpus, though a writ of right, is not a writ of course.   Its  scope has grown to achieve  its  purpose,  of protecting  individuals ’against erosion of the right to  be free  from  wrongful restraint on  their  rightful  liberty. But,  when, as in the present, case, the, petitioner has  no right to move about freely in this country without a  proper legal sanction, the restraint exercised on him for expelling

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him  ’from  India could not be construed on  the  facts  and circumstances  of this case to amount to his  custody  being illegal so as to require this Court to direct his  immediate release.   The  constitutional  protection  against  illegal deprivation of personal liberty construed in a practical way cannot entitle non-citizens like the petitioner to remain in India  contrary  to  the provisions  of  the  law  governing foreigners. [645 D] (iii)  The notification dated April 19, 1958 was a  complete answer  to  the  petitioner’s contention  that  it  was  the Central Government alone which could make a lawful order  of deportation  under s. 3(2)(c) of the Foreigners Act.   Under the  said  rectifications the State was entrusted  with  the functions  of  the Central Government under s. 3(2)  of  the Foreigners Act. [641 G] 638 State of Punjab v. Ajaib Singli, [1953] S.C.R. 254; State of U.P. V. Abdul Samad, A.I.R. 1968 S.C, 1506 followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No, 131 of 1970. Petition  under Art. 32 of the Constitution ’of India for  a writ in the nature of habeas corpus. H.   K. Puri, for the petitioner. S.   P. Nayar for R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Dua,  J.  The petitioner, Anwar alias Raldu  son  of  Basawa Batwal,  resident  of Nathu Pora,  District  Sialkot,  (West Pakistan),  forwarded  to this Court his  application  dated March  11, 1970 from Central Jail, Jammu where he was  being detained,  praying for a ’Writ in the nature of  the  habeas corpus  for  his production in this Court to enable  him  to challenge his detention.  In the application it was asserted inter  alia  that  the  petitioner  had  been  brought  from Pakistan  to the State of Jammu & Kashmir by his uncle  Shri Dosa, son of Jumma who was working for Indian  Intelligence. The  petitioner had crossed the cease-fire line and come  to India for the purpose of taking to Pakistan the  necessities of  life.   His uncle who was inimical towards him  got  him arrested  after  he had crossed the cease-fire line  on  the basis  of the allegation that the petitioner was a  smuggler and had opium on his person.  The petitioner was  thereafter convicted  and sentenced.  His sentence expired in  January, 1970.   After  his  release  he  was  again  arrested.   His detention   after  his  rearrest  was  challenged  in   this application. In  the  return it was sworn by Shri A.  K.  Hamdani,  Under Secretary,  Home Department, Jammu & Kashmir State that  the petitioner had been detained on January 30, 1970 pursuant to an  order dated January 27, 1970.  The petitioner  was  duly informed  of  the grounds of his detention and also  of  his right  to  make  a representation.   He,  however,  made  no representation.   His  case  was referred  to  the  Advisory Board, and the opinion of the Board was being awaited.   The petitioner,  according  to  the return,  had  been  detained earlier  and on the expiry of two years of detention he  was re-arrested  with the object of making arrangements for  his expulsion from the State of Jammu & Kashmir. On  June 9, 1970 this case was heard by the  Vacation  Judge (Ray, J.) and time was granted to the petitioner up to  June 23, 1970 for filing a rejoinder to the return.  On June  15, 1970  the State filed an application stating that the  order of  the  petitioner’s detention had since been  revoked  and

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that the petitioner had been 639 ordered  on  June 9, 1970 to leave India  within  ten  days. This  application came up for hearing on June 16, 1970  when the  State took time for producing the orders of  revocation of the detention order and of the petitioner’s  deportation. The case was accordingly adjourned to June 18, 1970 when  by means  of a short order the writ petition was dismissed  and the petitioner was permitted to be sent out of India.  I now proceed to give reasons for the order. The   petitioner  is  not  a  citizen  of  India.   He   is, therefore,,  a foreigner as defined in the  Foreigners  Act. Not  being  a  citizen, he is clearly not  entitled  to  any fundamental right guaranteed by Art. 19 of the Constitution. He  has  thus no right to remain within the  territories  of India.   His  entry into this country was also  without  any right  and indeed he himself does not claim to have  entered into  India  in  accordance  with  the  provisions  of   the Foreigners  Act  and the Orders made thereunder.   The  only rights  which  he can claim in the present  proceedings  are those contained in Arts. 20 to 22.  The order dated  January 27, 1970 reads as under :               "Whereas  Anwar @ Raldu s/o Basawa Batwal  r/o               Nathupora  District Sialkot presently  in  the               State is a foreigner within the meaning of the               Foreigners Act, 1946, and;               Whereas the Government is satisfied that  with               a   view  to  making  arrangements   for   his               expulsion  from the State, it is necessary  to               do so;               Now,  therefore,  in exercise  of  the  powers               conferred  by  section  3 (1)  (b)  read  with               section  5 of the Jammu &  Kashmir  Preventive               Detention  Act,  1964, the  Government  hereby               direct that the said Anwar @ Raldu be detained               in  the  Central Jail, Jammu subject  to  such               conditions  as to maintenance, discipline  and               punishment for breaches of discipline as  have               been specified in the Jammu & Kashmir  Detenus               (General) Order, 1968." This  order was made in exercise of the powers conferred  by s.  3  (I)  (b)  read  with s. 5  of  the  Jammu  &  Kashmir Preventive   Detention  Act,  1964.   The  Government   felt satisfied that the petitioner who was a foreigner within the meaning  of  the Foreigners Act (Act 31 of 1946)  should  be expelled from the State of Jammu & Kashmir and it was with a view  to making arrangements for his expulsion that  it  was considered necessary to detain him., I-, appears that in the opinion of the Authorities making the order it was necessary to  give  to  the  petitioner an  opportunity  of  making  a representation  to  the  Government  against  the  order  of detention.   In order to give this opportunity, on  February 4, 1970 the grounds 640 of  detention  were disclosed to the petitioner and  he  was further  informed  that  if he so desired he  could  make  a representation  to the Government.  It may be recalled  that according to the return he was actually, detained on January 30, 1970 though the order of detention had been made on  the 27th  of  that month.  The petitioner,  without  making  any representation,  apparently sent the present application  to this Court through the jail authorities at Jammu.  On  April 9, 1970 this Court directed a rule nisi to issue in his case along   with  some  other  cases.   Apparently,  the   State authorities  did not consider it proper to take any  further

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steps  for  implementing  the  orders  of  the  petitioner’s expulsion  because this Court had been seized of the  habeas corpus proceedings.  According to the application dated June 15, 1970 the order of detention was revoked on June 9,  1970 with  the result that the habeas corpus  petition  assailing that  order must be considered to have  become  infructuous. The question naturally arose it this Court should order  the petitioner’s release forthwith on account of there  vocation of the impugned order of detention or it should dismiss  the writ petition as infructuous and send the petitioner back to Jammu  to  be released from the detention  under  the  order dated  January  27, 1970 and leave it to the  Government  to deal with the petitioner-in accordance with law.  The  peti- tioner  not being a citizen of India obviously had no  right to remain in Delhi and according to the order of deportation he was bound to leave India by June 19, 1970.  The order  of deportation may at this stage be reproduced :               "In exercise of the powers conferred by clause               (c)  of  sub-section (2) of section 3  of  the               Foreigners  Act, 1946 (Act No. XXXI of  1946),               read    with   Ministry   of   Home    Affairs               Notification issued under s.o. 590 dated  19th               of  April, 1958, the Government of  Jammu  and               Kashmir  hereby direct that the persons  named               below  who are foreigners shall not remain  in               India  and shall leave India within  ten  days               from the date of this order :-               1.Anwar @ Raldu s/o Basawa Batwal r/o Nathpora               District Sialkot.                ..      ...      ...     .... This order has to be read with the Ministry of Home  Affairs Notification  issued  under S.O. 590 dated April  19,  1958. That notification is in the following terms               "In  exercise of the powers conferred  by  cl.               (1)  of Art. 258 of the Constitution  and  all               other  powers enabling him in this behalf  and               in supersession of all previous  notifications               on the subject in so far as they relate to the 641 Act,  rules and orders hereinafter mentioned, the  President with  the consent of the State Government -concerned  hereby entrusts  to  the Government of each of the State  of  A.P., Assam,  Bihar, Bombay, J & K, Kerala, M.P., Madras,  Mysore, Orissa,   Punjab,  Rajasthan,  U.P.  and  West  Bengal   the functions of the Central Government,               (1)  under s. 5 of the Indian  Passports  Act,               1920 (34 of 1920),               (2)  under  rules  2  and  4  of  the   Indian               Passports Rules, 1950,               (3)   under  r.  3  of  the  Registration   of               Foreigners Rules, 1939,               (4)  in making orders of the nature  specified               in cls. (c), (cc), (d), (e) and (f ) of sub-s.               (2) of s. 3 of the Foreigners Act, 1946 (31 of               1946) and               (5)  under the Foreigners Order, 1948  subject               to the following conditions, namely,               (a) that in the exercise of that function, the               said  State Government shall comply with  such               general  or special directions as the  Central               Government may from time to time issue, and               (b) that notwithstanding this entrustment  the               Central Government may itself exercise any  of               the said functions should it deem fit to do so               in any case.

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I have reproduced this notification because Shri H. K. Puri, the  learned counsel appearing amicus curiae in  support  of the  petitioners application for habeas corpus,  had  raised the  point  that it was the Central Government  alone  which could make a lawful order of deportation under s. 3 (2)  (c) of  the  Foreigners Act.  This notification  is  a  complete answer  to  this objection because the President  has  under Art. 258 lawfully entrusted inter alia to the Government  of Jammu & Kashmir the function of the Central Government under s. 2 (3 ) (c), (d), (e) and (f ) of the Foreigners Act. Reverting  to the fundamental right claimable by  the  peti- tioner  who is not a citizen of India it is clear that  Art. 20  of  the  Constitution is not  attracted  to  this  case. Article 21 merely lays down that no person shall be deprived of his life or personal Sup. C.I./70-12 642 liberty  except according to procedure established  by  law. Article 22     deals  with detention of persons  in  certain cases.  In the case in   hand  in January, 1970 an order  of detention was made under s.   3  (I)  (b)  of  the  J  &   K Preventive   Detention  Act  which  clearly   empowers   the Government  to detain a foreigner within the meaning of  the Foreigners Act with a view to inter alia making arrangements for his expulsion from the State.  The petitioner not  being a  citizen of India is, as already stated, a  foreigner  and therefore  liable  to be so detained.   The  Government,  it appears,   considered  it  incumbent  to  comply  with   the provisions of ss. 8 to I 1 of the J & K Preventive Detention Act  even  when the petitioner was being  detained  for  the purpose  of expelling him from India.  The period fixed  for the Advisory Board to submit its report had not yet  expired when  the  petitioner, without  making  any  representation, applied  to this Court on March 11, 1970 and  initiated  the present  proceedings.  After the present application  for  a writ  of  habeas corpus was entertained  by  this  Court,the orders in respect of his custody were subject to the control and permission of this Court and the State authorities  were naturally reluctant in taking any  step              towards implementation  of  the  order  of  expulsion,without   this Court’s  permission.  As soon as the order of detention  was revoked the State Government made an order under s. 3 (2)(c) of the Foreigners Act read with the Ministry of Home Affairs Notification  issued  under S.O. 590 dated  April  19,  1958 directing the petitioner not to remain in India and to leave India  within  ten days from June 9, 1970, the date  of  the order.   Soon  thereafter  the  State  Government  filed  an application  in this Court stating all the  relevant  facts. The petitioner was informed of this ,order and Shri Puri the learned   Counsel  appearing;  as  amicus  curaie   actually addressed  this Court on its legality after  consulting  the petitioner.This  order  appears to be  consistent  with  the order of detentiondated  January 27, 1970 which  was  also made with the object of expelling the petitioner from India. Since  the order dated June 9, 1970 had to be complied  with by June 19, one day earlier, as already noticed, on June  18 this Court permitted the State authorities to take  suitable steps for deporting the petitioner from India. The question arises if in these circumstances it can be said that  after  the  revocation  of  the  detention  order  the petitioner was deprived of his personal liberty illegally or without  procedure established by law so as to require  this Court to order his immediate release.  In State of Punjab v. Ajaib  Singh(’) this Court held that physical restraint  put upon an abducted woman (abducted during the partition of the undivided  Punjab in 1947) in the process of recovering  and

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taking her into custody without (1) [1953] S.C.R. 254. 643 any  allegation or accusation of any actual or suspected  or apprehended  commission by her of any offence of a  criminal or  quasicriminal  nature or of any act prejudicial  to  the State  or  the public interest and handing her over  to  the custody of the officer-incharge of the nearest camp under S. 4 of the Abducted Persons (Recovery and Restoration) Act, 55 of 1949 could not be regarded as arrest and detention within the meaning of Art. 22(1) and (2).  In the State of U.P.  v. Abdul Samad(1) two persons (Mr. & Mrs. Abdul Samad) were  in Pakistan in March, 1955.  In September, 1955 they obtained a Pakistani  passport and came to India after securing a  visa for  temporary  stay till December 16, 1955.   They  secured repeated  extension  of the period of stay.   In  1957  they unsuccessfully  applied  for their  registration  as  Indian citizens.   Against  refusal  to  register  them  as  Indian citizens   their   application  under  Art.   226   of   the Constitution also failed in 1959.  The State Government then directed   them  to  leave  India.   They  secured   several extensions  of time for complying with this order.   Finally on July 7, 1960 they were required to leave India within  24 hours.   On  their  failure to do so they  were  taken  into custody  on July 21, 1960 and sent by train to Amritsar  for being  deported  to Pakistan.  They were produced  before  a Magistrate at Amritsar who ordered that they be kept in  the Civil   Lines  Thana  till  further  orders,  Meanwhile   an application  was  filed  before the  Lucknow  Bench  of  the Allahabad High Court under s. 491, I.P.C. on July 25,  1960. On being informed that the two persons concerned having been sent  to  Amritsar  were no longer  within  its  territorial jurisdiction,  the High Court recorded an order that it  had no  jurisdiction in the matter and that the  proceedings  be consigned  to records.  In the meantime a spurious  telegram and a spurious telephone message purporting to emanate  from Saxena, Under Secretary, Home Department, U.P. were received by  the police at Amritsar stating that the High  Court  had issued orders for Mr. & Mrs. Abdul Samad to be brought  back to Lucknow to attend the case on July 25, 1960.  Pursuant to this  message Mr. & Mrs. Abdul Samad were taken  to  Lucknow and produced before the Deputy Registrar of the High  Court, but  after  the  court had disposed  of  the  habeas  corpus petition.   They were produced before the  Deputy  Registrar who directed their production in the High Court on July  26, at  10.15 a.m. An application was thereupon filed on  behalf of  Mr. & Mrs. Abdul Samad on July 25, 1960 to revive  their earlier  habeas  corpus  petition.  A  fresh  habeas  corpus petition  was also filed on July 26, 1960 praying for  their release.  On Jully 27, 1960 the High Court passed an interim order  of their release on bail on the fresh  habeas  corpus petition.  That application was ultimately allowed and Mr. & Mrs.  Abdul  Samad were released on the  ground  that  after their arrival in Lucknow at I p.m. on July 25, 1960 they had not been produced before a (1)  A.I.R. 1962 S.C. 1506. 644 Magistrate  within  24 hours and this was in breach  of  the mandatory   provisions  contained  in  Art.  22(2)  of   the Constitution.  On appeal by the State, the Supreme Court set aside the order of the High Court and held that there was no violation  of  Art.  22(2).   In  this  connection  it   was emphasised  that  Mr. & Mrs. Abdul Samad had  actually  been produced  before the High Court on July 26, 1960  within  24 hours of their arrival at Lucknow on July 25, 1960 and  that

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they  were again produced before the High Court on July  27, 1960.   On  both  occasions they  had  full  opportunity  of representing  their  case.   The  view  expressed  in   this decision would rule out the argument of non-compliance  with Art.  22(2)  on the facts and circumstances of  the  present case. As observed earlier the petitioner had no right to enter and remain  within  the territories of India and indeed  he  was bound,  .under the order dated June 9, 1970, to leave  India by  June 19, 1970.  According to cl. (3) of  the  Foreigners Order, 1948 no foreigner can enter into India :-               (a) otherwise than at such port or other place               of   entry  on  the  border  of  India  as   a               Registration  Officer having  jurisdiction  at               that port or place may appoint in this behalf;               either  for  foreigners generally or  for  any               specified class or description of  foreigners;                             or               (b)  without the leave of the civil  authority               having, jurisdiction at such port or place." Under cl. (5) of this Order no foreigner can leave India               (a)  otherwise  than  at such  port  or  other               recognised  place of departure on the  borders               of  India as the Registration  Officer  having               jurisdiction at that port or place may appoint               in this behalf either for foreigners generally               or  for any specified class or description  of               foreigners; or               (b)  without the leave of the civil  authority               having jurisdiction at such port or place." It would thus be seen that the petitioner who had  illegally and  clandestinely entered into India could not stay in  any part  of its territory.  Indeed, he had, to leave  India  by June 19, 1970 and this had to be done in accordance with the statutory  regulations.   The order of his release  by  this Court  would,  therefore,  not only  have  resulted  in  his presence  in  a  part  of  India  in  contravention  of  the statutory provisions but would in addition have rendered  it somewhat difficult for the authorities to enforce compliance with the order of his expulsion.  In these circumstances the res- 645 traint on his personal liberty for the purpose of taking him to the border in order to expel him from India in accordance with   the  statutory  provisions  could  by  no  means   be considered  to be an illegal custody justifying an order  of release  by this Court.  While dealing with cases  like  the present one cannot ignore the historical fact of  Pakistan’s extremely  hostile  attitude towards the State  of  Jammu  & Kashmir and also the fact that from the borders of the State of  Jammu  &  Kashmir  adjoining  those  of  West   Pakistan infiltrators  have constantly been surreptitiously  entering that part of the Indian territory for unfriendly  activities which  endanger maintenance of public order and security  of the  State.  The petitioner had on his own  showing  crossed the  cease-fire line secretly with the object of taking  out of India the necessities of life.  Regulations governing the entry into and departure from India as also the presence  in this  country  of  Pakistani infiltrators  from  across  the cease-fire line on the Jammu & Kashmir border demand  strict enforcement  and  the  claim to  personal  liberty  made  by unlawful  infiltrators from Pakistan cannot be placed  above the  security  of  the country and maintenance  of  law  and order.  Habeas corpus, though a writ of right, is not a writ of  course.  Its scope has grown to achieve its  purpose  of

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protecting  individuals against erosion of the right  to  be free  from  wrongful restraint on their  rightfull  liberty. But  when,  as in the present case, the  petitioner  has  no right to move about freely in this country without a  proper legal sanction, the restraint exercised on him for expelling him  from India by June 19, 1970 cannot be construed on  the facts  and  circumstances  of this case  to  amount  to  his custody being illegal so as to require this Court to  direct his   immediate  release.   The  constitutional   protection against  illegal, deprivation of personal liberty  construed in  a  practical way cannot entitle  non-citizens  like  the petitioner to remain in India contrary to the provisions  of the  law governing foreigners.  It is accordingly  difficult to  hold that the petitioner is being illegally deprived  of his  right  to personal liberty to stay and  move  about  in India without restraint.  The petition accordingly fails and is dismissed. Y.P.                          Petition dismissed. 646