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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: AJAIB SINGH AND ANOTHER

DATE OF JUDGMENT: 10/11/1952

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. BOSE, VIVIAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   10            1953 SCR  254  CITATOR INFO :  R          1954 SC 297  (11)  R          1955 SC 191  (7)  F          1955 SC 334  (15)  R          1956 SC  20  (6)  R          1957 SC 688  (8,10)  D          1957 SC 927  (9)  R          1962 SC1006  (74)  D          1962 SC1506  (20)  MV         1966 SC1910  (15,20,32)  RF         1971 SC 337  (7)  RF         1973 SC1461  (543)  R          1974 SC 849  (16)  RF         1974 SC1389  (255)  D          1992 SC1858  (22)

ACT:  Abducted  Persons (Recovery and Restoration) Act  (LXV  of 1949) ss. 4, 6, 7-Constitution of India, Arts. 14,15,19  (1) (d),  (e),  (g), 21, 22-Low authorising police  officers  to take abducted persons into custody and deliver such  persons to officer in charge of camp Constitutional validity-"Arrest and detention", meaning of-Scope of Art. 22-Construction  of statutes.

HEADNOTE:   The  Abducted Persons (Recovery and Restoration) Act  (Act LXV of 1949) does Dot infringe art. 14, art. 16, art. 19 (1) (d), (e) and (g), art. 21 or art. 22 of the Constitution and is  not unconstitutional on the ground  that  it,contravenes any of these provisions.   The physical restraint Put upon an abducted person in  the process  of recovering and, taking that person into  custody without  any  allegation  or accusation  of  any  actual  or suspected  or apprehended commission by that person  of  any offence of a criminal or quasi-criminal nature or of any act prejudicial  to  the  State  or  the  public  interest,  and delivery  of  that person to the custody of the  officer  in charge  of  the  nearest camp under s.  4  of  the  Abducted Persons (Recovery and Restoration) Act (LXV of 1949) is  not

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arrest  and detention within the meaning of art. 22 (1)  and (2)  of the Constitution.  The said Act does  not  therefore infringe the fundamental right guaranteed by art. 22 of  the Constitution. 255   The   fundamental  right  conferred  by  art.   22   gives protection  ,against such arrests as are effected  otherwise than under a warrant issued by a Court on the allegation  or accusation that the arrested person has, or is suspected  to have,. committed, or is about or likely to commit, an act of a  criminal  or  quasi-criminal  nature  or  some   activity prejudicial  to the public or the State interest.  There  is indication  in the language of art. 22 (1) and (2)  that  it was designed to give protection against the act of the  exe- cutive or other non-judicial authority. The Blitz Case (Petition No. 75 of 1952) explained.   Muslim  abducted persons constitute a  well-defined  class for the purpose of legislation and the fact that the Act  is extended only to the several States mentioned in s. 1 (2) of the  Act does not make any difference, for a  classification may well be made on a geographical basis.  The Act does  not therefore contravene art. 14 of the Constitution.   If the language of an article is plain and unambiguous and admits of only one meaning, then the duty of the Court is to adopt  that meaning irrespective of the  inconvenience  that such   a  construction  may  produce.   If,   however,   two constructions  are possible then the Court must  adopt  that which  will  ensure  smooth and harmonious  working  of  the Constitution  and,  eschew,  the other which  will  lead  to absurdity  or give rise to practical inconvenience  or  make well established provisions of existing law nugatory.

JUDGMENT:   CRIMINAL APPELLATE JURISDICTION: Criminal Ap. peal No. 82 of  1952.  Appeal under art. 132 (1) of the Constitution  of India  from the Judgment and Order dated June 10,  1952,  of the  High  Court of Judicature for the State  of  Punjab  at Simla (Bbandari and Khosla JJ.) in Criminal Writ No. 144  of 1951. M.   C. Setalvad (Attorney-General for India) and C.   K. Daphtary (Solicitor- Genera I for India) (B.   Gana- pathy, with them) for the appellant. J.   B. Dadachanji (amicus curice) for respondent No. 1.  1952.   November  10.   The  Judgment  of  the  Court  was delivered by   DAS J.-This appeal arises out of a habeas corpus petition Bled by one Ajaib Singh in the High Court of Punjab for  the production  and  release  of one   Musammat  Sardaran  alias Mukhtiar Kaur, a girl of about 12 years of age. 256   The  material  facts  leading up to the  filing  of  that petition  may be shortly stated as follows.  On  the  report made by one Major Babu Singh, Officer Commanding No. 2 Field Company,  S. M. Faridkot, in his letter dated  February  17, 1951,  that  the petitioner Ajaib Singh had  three  abducted persons   in   his  possession,  the  recovery   police   of Ferozepore,  on June 22, 1951, raided his house  in  village Shersingwalla  and  took  the girl  Musammat  Sardaran  into custody  and delivered her to the custody of the Officer  in charge of the Muslim Transit Camp at Ferozepore from  whence she  was  later transferred to and lodged in  the  Recovered Muslim Women’s Camp in Jullundur City.  A  Sub-Inspector  of Police named Nibar  Dutt  Sharma  was

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deputed by the Superintendent of Police, Recovery, Jullundur to make certain enquiries as to the facts of the case.   The Sub-Inspector  as a result of his enquiry made a  report  on October 5, 1951 to the effect, inter, that the girl had been abducted by the petitioner during the riots of 1947.  On  November  5,  1951, the petitioner  filed  the  habeas corpus petition and obtained an interim order that the  girl should  not be removed from Jullundur until the disposal  of the  petition.  The case of the girl was then enquired  into by two Deputy Superintendents of Police, one from India  and one  from Pakistan who, after taking into consideration  the report  of the Sub-Inspector and the statements made  before them by the girl, her mother who appeared before them  while the enquiry was in progress, and Babu alias Ghulam Rasul the brother  of Wazir deceased who was said to be the father  of the girl and other materials, came to the conclusion,  inter alia,  that the girl was a Muslim abducted during the  riots of 1947 and was, therefore, an abducted person as defined in section  2(a)  (1)  of the Abducted  Persons  (Recovery  and Restoration)  Act  LXV  of 1949.  By their  report  made  on November 17, 1951, they recommended that she should be  sent to  Pakistan for restoration to her next of kin but in  view of  the interim order of the High Court appended a  note  to the effect that she 257 should  not be sent to Pakistan till the final  decision  of the High Court.  The  matter then came before a Tribunal said to have  been constituted  under  section  6 of the  Act.   That  Tribunal consisted  of two Superintendents of Police, one from  India and the other from Pakistan.  The Tribunal on the same  day, i.e., November 17, 1951, gave its decision agreeing with the findings    and   recommendation   of   the    two    Deputy Superintendents of Police and directed that the girl  should be sent to Pakistan and restored to her next of kin there.  The  habeas  corpus petition came up  for  hearing  before Bhandari and Khosla JJ. on November 26, 1951, but in view of the  several questions of farreaching importance  raised  in this  and  other similar applications,  the  learned  Judges referred the following questions to a Full Bench :  1. Is  Central  Act  No.  LXV  of  1949  ultra  vires  the Constitution  because  its  provisions with  regard  to  the detention  in  refugee  camps of  persons  living  in  India violate  the  rights conferred upon  Indian  citizens  under article 19 of the Constitution ?   2.     Is  this Act ultra vires the Constitution  because in  terms  it violates the provisions of article 22  of  the Constitution ?   3.     Is the Tribunal constituted under section 6 of the Act  a  Tribunal subject to the general supervision  of  the High Court by virtue of article 227 of the Constitution ?  At the same time the learned Judges made it clear that the Full Bench would not be obliged to confine itself within the narrow limits of the phraseology of the said questions.   On the next day the learned Judges made an order that the  girl be   released  on  bail  on  furnishing  security   to   the satisfaction of the Registrar in a sum of Rs. 5,000 with one surety.   It  is  not  clear from  the  record  whether  the security was actually furnished.   The  matter  eventually  came  up  before  a  Full  Bench consisting of the same two learned Judges 258 and  Harnam Singh J. In course of arguments before the  Full Bench the following further questions were added:  4.Does this Act conflict with the provision of article  14

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on the ground that the State has denied to abducted  persons equality before the law or the equal protection of the  laws within the territory of India?  5.Does this Act conflict with the provisions of article 15 on  the  ground  that the State  has  discriminated  against abducted  persons who happen to be citizens of India on  the ground of religion alone ?  6.  Does this Act conflict with article 21 on  the  ground that abducted persons are deprived of their personal liberty in  a  manner  which is contrary to  principles  of  natural justice ? "   There  was  also  a contention that  the  Tribunal  which decided  this case was not properly constituted in that  its members  were  not  appointed or nominated  by  the  Central Government and, therefore, the order passed by the  Tribunal was without jurisdiction.   By their judgments delivered on June 10, 1952, Khosla and Harnam  Singh  JJ. answered question 1 in the  negative  but Bhandari  J.  held that the Act was  inconsistent  with  the provisions  of article 19(1) (g) of the  Constitution.   The learned  Judges were unanimous in the view that the Act  was inconsistent with the provisions of article 2.2 and was void to  the  extent of such inconsistency.  Question 3  was  not fully argued but Bhandari and Khosla JJ. expressed the  view that the Tribunal was subject to the general supervision  of the  High  Court.   The  Full  Bench  unanimously   answered questions  4, 5 and 6 in the negative.  Bhandari and  Khosla JJ.  further  held  that  the  Tribunal  was  not   properly constituted for reasons mentioned above, but in view of  his finding  that section 4(1) of the Act was in  conflict  with article 22(2) Harnam Singh J. did not consider it  necessary to  express any opinion on the validity of the  constitution of the Tribunal. 259   The Full Bench with their aforesaid findings remitted the case  back  to  the Division Bench which  had  referred  the questions  of  law  to  the  larger  Beach.   The  case  was accordingly   placed   before  the  Division   Bench   which thereafter  ordered  that Musammat Sardaran  alias  Mukhtiar Kaur be set at liberty.  The girl has since been released.  The  State of Punjab has now come up on appeal before  us. As  the petitioner respondent Ajaib Singh represented to  us that he could not afford to brief an  advocate to argue  his case, we requested Sri J. B. Dadachanji to take up the  case as ambicus curiae which be readily agreed to do.  He has put forward the petitioners case with commendable ability and we place on record our appreciation of the valuable  assistance rendered by him to the Court. In his opening address the learned Solicitor General frankly admitted  that  he could not contend that the  Tribunal  was properly constituted under section 6 of the Act and conceded that in the premises the order of the ’ High Court directing the  girl  to  be released could  not  be  questioned.   He, however,  pressed  us to pronounce upon  the  constitutional questions raised in this case and decided by the High  Court so  that  the  Union Government would be in  a  position  to decide  whether  it  would, with  or  without  modification, extend the life of the Act which is due to expire at the end of the current month.  We accordingly heard arguments on the constitutional  questions  on the clear  understanding  that whatever view we might express oh those questions, so far as this  particular  case is concerned, the order of  the  High Court   releasing  the  girl  must  stand.   After   hearing arguments we intimated, in view of the urgency of the matter due  to the impending expiry of the Act, that  our  decision

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was  that the Act did not offend against the  provisions  of the  Constitution and that we would give our  reasons  later on.   We  now  proceed  to set forth  our  reasons  for  the decision already announced. 34 260  In  order  to appreciate the rival  contentions  canvassed before us it is necessary to bear in mind the  circumstances which  led  to the promulgation of an  Ordinance  which  was eventually  replaced  by Act LXV of 1949 which  is  impugned before  us  as  unconstitutional.  It is  now  a  matter  of history  that serious riots of virulent intensity broke  out in  India  and  Pakistan in the wake  of  the  partition  of August, 1947, resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindus and Sikhs from Pakistan to  India.  There were heart-rending tales of  abduction  of women  and  children on both sides of the border  which  the governments  of the two Dominions could not possibly  ignore or  overlook.   As  it was not possible  to  deal  with  and control   the  situation  by  the  ordinary  laws  the   two governments had to devise ways and means to check the  evil. Accordingly there was a conference of the representatives of the  two Dominions at Lahore in December, 1947, and  Special Recovery Police Escorts and Social Workers began functioning jointly  in both the countries.  Eventually on November  11, 1948, an Inter-Dominion Agreement between India and Pakistan was arrived at for the recovery of abducted persons on  both sides  of  the  border.  To  implement  that  agreement  was promulgated  on  January 31, 1949, an Ordinance  called  the Recovery   of  Abducted  Persons  Ordinance,.  1949.    This Ordinance  was replaced by Act LXV of 1949 which  came  into force on December 28, 1949.  The Act was to remain in  force up to October 31, 1951, but it was eventually extended by  a year.  That the Act is a piece of beneficial legislation and has  served  a useful purpose cannot be denied,  for  up  to February 29, 1952, 7,981 abducted persons were recovered  in Pakistan and 16,168 in India this circumstance, however, can have  no bearing on the constitutionality of the  Act  which will have to be judged on purely legal considerations. The  Act is a short one consisting of eleven  sections.   It will be observed that the purpose of the Act is to implement the agreement between the two countries 261 as recited in the first preamble.  The second preamble  will show  that  the  respective governments  of  the  States  of Punjab, Uttar Pradesh, Patiala and East Punjab States Union, Rajasthan  and  Delhi gave their consent to  the  Act  being passed by the Constituent Assembly a circumstance indicative of  the fact that those governments also felt the  necessity for  this  kind of legislation.  By section 1  (2)  the  Act extends to the several States mentioned above and is to  re- main  in  force  up  to October  31,  1952.  The  expression "abducted person" is defined by section 2(1) (a) as  meaning " a male child under the age of sixteen years or a female of whatever  age who is, or immediately before the 1st  day  of March, 1947, was a Muslim and who, on or after that day  and before  the 1st day of January, 1949, has  become  separated from  his or her family, and in the latter case  includes  a child born to any such female after the said date."  Section 4  of  the  Act, which is important, provides  that  if  any police  officer,  not below the rank of  an  Assistant  Sub- Inspector  or any other police officer specially  authorised by  the  State  government in that  behalf,  has  reason  to believe that an abducted person resides or is to be found in any  place,  he  may, after recording the  reasons  for  his

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belief,  without  warrant, enter and take into  custody  any person  found  therein who, in his opinion, is  an  abducted person, and deliver or cause such persons to be delivered to the  custody  of the officer in charge of the  nearest  camp with the least possible delay.  Section 6 enacts that if any question arises whether a person detained in a camp is or is not  an  abducted person, or whether such person  should  be restored to his or her relatives or handed over to any other person  or  conveyed out of India or allowed  to  leave  the camp, it shall be referred to, and decided by , ’a  Tribunal constituted for the purpose by the Central Government.   The section  makes the decision of the Tribunal final,  subject, however, to the power of the Central Government to review or revise  any  such  decision.  Section  7  provides  for  the implementation of the decision of the 262 Tribunal by declaring that any officer or authority to  whom the custody of any abducted person ’has been delivered shall be  entitled to receive and hold the person in  custody  and either restore such person to his or her relatives or convey such persons out of India.  Section 8 makes the detention of any  abducted  person  in  a camp  in  accordance  with  the provisions of the Act lawful and saves it from being  called in  question  in  any  court.  Section  9  gives  the  usual statutory immunity from any suit or proceeding for  anything done under the Act in good faith.  Section’ 10 empowers  the Central  Government to make rules to carry out the  purposes of the Act.  The  main contest before us has been on question  2  which was  answered  unanimously  by the Full  Bench  against  the State,  namely, whether the Act violates the  provisions  of article  22.   If the recovery of a person  as  an  abducted person  and the delivery of such person to the nearest  camp can be said to be arrest and detention within the meaning of article  22(1) and (2) then it is quite clear that the  pro- visions of sections 4 and 7 and article 22(1) and (2) cannot stand together at the same time, for, to use the language of Bhandari  J.,  "  it is impossible to  obey  the  directions contained  in  sections 4 and 7 of the Act of  1949  without disobeying  the directions contained in clauses (1) and  (2) of article 22." The Constitution commands that every  person arrested  and detained in custody shall be  produced  before the  nearest Magistrate within 24 hours excluding  the  time requisite  for the journey from the place of arrest  to  the Court  of the Magistrate but section 4 of the  Act  requires the  police  officer  who takes  the  abducted  person  into custody  to  deliver  such  person to  the  custody  of  the officer-in-charge of the nearest camp for the  reception-and detention   of  abducted  persons.   These  provisions   are certainly  conflicting and inconsistent.  The  absence  from the  Act of the salutary provisions to be found  in  article 22(1)  and (2) as to the right of the arrested person to  be informed of the grounds of such arrest and to consult and to be 263 defended  by  a  legal practitioner of his  choice  is  also significant.    The   learned  Solicitor-General   has   not contended  before us, as he did before the High Court,  that the overriding provisions of article 22(1) and (2) should be read into the Act, for t e o vious reason that whatever  may be  the  effect of the absence from the  Act  of  provisions similar to those of article 22(1), the provisions of article 22(2)  which  is wholly inconsistent with section  4  cannot possibly, on account of such inconsistency, be read into the Act.   The sole point for our consideration then is  whether

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the  taking into custody of an abducted person by  a  police officer under section 4 of the Act and the delivery of  such person  by him into the custody of the  officerin-charge  of the  nearest  camp can be regarded as arrest  and  detention within  the meaning of article 22(1) and (2).  If  they  are not,  then there can be no complaint that the Act  infringes the fundamental right guaranteed by article 22(1) and (2).   Sri   Dadachanji  contends  that  the  Constitution   and particularly  Part III the ereof should be  construed  liber -ally so that the fundamental rights conferred by it may  be of  the  widest  amplitude.  He refers  us  to  the  various definitions of the word "arrest" given in several  wellknown law   dictionaries   and  urges,  in  the  light   of   such definitions,  that  any physical restraint  imposed  upon  a person  must result in the loss of his personal liberty  and must  accordingly  amount  to  his  arrest.   It  is  wholly immaterial  why  or with what purpose such arrest  is  made. The  mere imposition of physical restraint, irrespective  of its reason, is arrest and as such, attracts the  application of  the constitutional safeguards guaranteed by  article  22 (1)  and  (2).   That  the result of  placing  such  a  wide definition on the the term "arrest" occurring in article  22 (1) will render many enactments unconstitutional is obvious. To  take  one  example, the arrest  of  a  defendant  before judgment  under the provisions of Order XXXVIII, rule 1,  of the  Code  of Civil Procedure or the arrest of  a  judgment- debtor  in  execution of a decree -under section 55  of  the Code will, on this 264 hypothesis,   be  unconstitutional  inasmuch  as  the   Code provides  for  the production of the  arrested  person,  not before  a Magistrate but before the civil court  which  made the order.  Sri Dadachanji contends that such  consideration should   not  weigh  with  the  court  in   construing   the Constitution.   We are in agreement with learned counsel  to this  extent  only that if the language of  the  article  is plain  and unambiguous and admits of only one  meaning  then the duty of the court is to adopt that meaning  irrespective of  the inconvenience that such a construction may  produce. if, however, two constructions are possible, then the  court must  adopt  that which will ensure  smooth  and  harmonious working of the Constitution and eschew the other which  will lead to absurdity or give rise to practical inconvenience or make  well established provisions of existing law  nugatory. We have, therefore, to examine the article in question  with care  and ascertain the meaning and import of  it  primarily from its language.  Broadly  speaking,  arrests  may be  classified  into  two categories, namely, arrests under warrants issued by a court and  arrests otherwise than under such warrants.  As to  the first category of arrest, sections 76 to 86 collected  under sub-heading B-Warrant of Arrest " in Chapter VI of the  Code of  Criminal  Procedure deal with arrests  in  execution  of warrants  issued  by a court under that  Code.   Section  76 prescribes that such a warrant must be in writing signed  by the  presiding  officer,  or  in the  case  of  a  Bench  of Magistrates,  by any member of such Bench and bear the  Beal of  the court.  Form No. II of Schedule V to the Code  is  a form  of warrant for the arrest of an accused  person.   The warrant  quite  clearly has to state that the person  to  be arrested  stands charged with a certain offence.,  Form  No. VII  of  that Schedule is used to bring up a  witness.   The warrant  itself recites that the court issuing it  has  good and  sufficient reason to believe that the witness will  not attend as a witness unless compelled to do so.  The point to

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be noted is that in either case the 265 warrantex facie sets out the reason for the arrest,  namely, that the person to be arrested has committed or is suspected to  have committed or is likely to commit some offence.   In short,  the warrant contains a clear accusation against  the person to be arrested.  Section 80 requires that the  Police Officer or other person executing a warrant must notify  the substance  thereof to the person to be arrested, and, if  so required, shall show him the warrant.  It is thus abundantly clear  that  the person to be arrested is  informed  of  the grounds for his arrest before he is actually arrested.  Then comes section 81 which runs thus:-  "  The Police Officer or other person executing a  warrant of arrest shall (subject to the provisions of section 76  as to  security)  without unnecessary delay  bring  the  person arrested before the Court before which he is required by law to produce such person."  Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a  warrant of  arrest  issued by a court.  To take one  example,  Order XXXVIII,  rule 1, of the Code of Civil Procedure  authorises the  court to issue a warrant for the arrest of a  defendant before  judgment  in certain circumstances.  Form No.  1  in Appendix F sets out the terms of such a warrant.  It clearly recites  that it has been proved to the satisfaction of  the court  that  there  is probable cause for  belief  that  the defendant  is  about  to  do one  or  other  of  the  things mentioned  in  rule 1. The court may under section  55  read with  Order XXI, rule 38, issue,a warrant for the arrest  of the judgment-debtor in execution of the decree.  Form No. 13 sets  out the terms of such a warrant.  The warrant  recites the  decree and, the failure of the judgment-debtor  to  pay the  decretal  amount to the decree-holder and  directs  the bailiff  of  the court to arrest  the  defaulting  judgment- debtor, unless he pays up the decretal amount with costs and to  bring  him before the court with all  convenient  speed. The  point to be noted is that, as in the case of a  warrant of  arrest  issued  by a court under the  Code  of  Criminal Procedure, a warrant of arrest 266 issued  by a court under the Code of Civil  Procedure  quite plainly discloses the reason for the arrest in that it  sets out  an  accusation of default, apprehended or  actual,  and that  the person to be arrested is made acquainted with  the reasons for his arrest before lie is actually arrested.  The several sections collected under sub-heading  B-Arrest without  warrant  "  in Chapter V of the  Code  of  Criminal Procedure  deal with arrests otherwise than  under  warrants issued by a court under that Code.  Section 54 sets out nine several circumstances in which a police officer may, without an  order from a Magistrate and without a warrant, arrest  a person.   Sections  55, 57, 151 and 401 (3)  confer  similar powers  on  police officers.  Column 3, Schedule II  to  the Code  of Criminal Procedure also specifies; the cases  where the police may arrest a person without warrant.  Section  56 empowers  an  officer in charge of a police station  or  any police officer making an investigation under Chapter XIV  to require  any officer subordinate to him to arrest without  a warrant  any person who may lawfully be arrested  without  a warrant.  In such a case, the officer deputing a subordinate officer  to make the arrest has to deliver to the latter  an order  in writing specifying the person to be  arrested  and the  offence  or other cause for which the arrest is  to  be made and the subordinate officer is required, before  making

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the  arrest,  to  notify to the person to  be  arrested  the substance  of the order and, if so required by such  person, to show him the order.  Section 59 authorises even a private person  to arrest any person who in his view commits a  non- bailable  and cognisable offence or any proclaimed  offender and  requires the person making the arrest to make over  the arrested  person,  without unnecessary delay,  to  a  police officer  or  to take such person in custody to  the  nearest police station.  A perusal of the sections referred to above will  at once make it plain that the reason in each case  of arrest  without  a warrant is that the person,  arrested  is accused of having committed or reasonably suspected to  have committed or of 267 being  about  to commit or of being likely  to  commit  some offence or misconduct.  It is also to be noted that there is no  provision,  except in section 56,  for  acquainting  the person  to be arrested without warrant with the grounds  for his  arrest.  Sections 60 and 61 prescribe the procedure  to be  followed  after a person is  arrested  without  warrant. They run thus:- "  60.   A police officer making an arrest  without  warrant shall   without  unnecessary  delay  and  subject   to   the provisions  herein  contained as to bail, take or  send  the person  arrested before a Magistrate having jurisdiction  in the  case,  or  before the officer in  charge  of  a  police station."  "61.No  police  officer shall detain in custody  a  person arrested without warrant for a longer period than under  all the circumstances of the case is reasonable, and such period shall,  not,  in  the  absence  of  a  special  order  of  a Magistrate  under  section 167,  exceed  twenty-four  hours, exclusive  of the, time necessary for the journey  from  the place of arrest to the Magistrate’s Court."  Apart from the Code of Criminal Procedure, there are other statutes  which authorise the arrest of a person  without  a warrant  issued  by  any Court.   Reference  may,  byway  of example, be made to sections 173 and 174 of the Sea  Customs Act (VIII of 1878) and section 64 of the Forest Act (XVI  of 1927).  In both cases, the reason for the arrest is that the arrested person is reasonably suspected to have been  guilty of  an offence under the Act and there is provision in  both cases  for the immediate production of the  arrested  person before  a Magistrate.  Two things are to be  noted,  namely, that,  as in the cases of arrest without warrant  under  the Code of Criminal Procedure, an arrest without warrant  under these Acts also proceeds upon an accusation that the  person arrested  is  reasonably suspected of  having  committed  an offence  and there is no provision for communicating to  the person arrested the grounds for his arrest. 35 268 Turning  now to article 22(1) and (2), we have to  ascertain whether its protection extends to both categories of arrests mentioned  above, and, if not, then which one of them  comes within its protection.  There can be no manner of doubt that arrests without warrants issued by a court call for  greater protection  than  do  arrests  under  such  warrants.    The provision that the arrested person should within 24 hours be produced  before  the  nearest  Magistrate  is  particularly desirable  in  the  case of arrest otherwise  than  under  a warrant  issued by the court, for it ensures  the  immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted  by  him.  In the case of, arrest  under  a  warrant

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issued  by  a  court, the judicial  mind  had  already  been applied  to  the  case  when the  warrant  was  issued  and, therefore,  there is less reason for making such  production in  that case a matter of a substantive  fundamental  right. It  is  also perfectly plain that the  language  of  article 22(2) has been practically copied from sections 60 and 61 of the  Code of Criminal Procedure which  admittedly  prescribe the  procedure  to  be followed after  a  person,  has  been arrested without warrant.  The requirement of ’article 22(1) that no person who is arrested shall be detained in  custody without  being informed, as soon as may be, of  the  grounds for   such   arrest  indicates  that   the   clause   really contemplates  an arrest without a warrant of court, for,  as already noted, a person arrested under a, court’s warrant is made  acquainted with the grounds of his arrest  before  the arrest is actually effected.  There can be no doubt that the right  to consult a legal practitioner of his choice  is  to enable the arrested person to be advised about the  legality or sufficiency of the grounds for his arrest.  The right  of the  arrested person to be defended by a legal  practitioner of his choice postulates that there is an accusation against him  against which he has to be defended.  The  language  of article  22(1) and (2) indicates that the fundamental  right conferred by it gives protection against such 269 arrests  as  are  effected otherwise than  under  a  warrant issued  by a court on the allegation or accusation that  the arrested person has, or is suspected to have, committed,  or is about or likely to commit an act of a criminal or  quasi- criminal  nature or some activity prejudicial to the  public or the State interest.  In other words, there is  indication in  the  language  of  article 22(1) and  (2)  that  it  was designed to give protection against the act of the executive or  other non-judicial authority.  The Blitz case  (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this  very view, for there the arrest was made on a  warrant issued,  not  by  a court, but, by the Speaker  of  &  State Legislature  and  the  arrest  was  made  on  the   distinct accusation  of the arrested person being guilty of  contempt of the Legislature.  It is not, however, our purpose, nor do we   consider  it  desirable,  to  attempt  a  precise   and meticulous  enunciation  of  the scope  and  ambit  of  this fundamental  right  or to enumerate exhaustively  the  cases that  come  within its protection.  Whatever else  may  come within  the purview of article 22(1) and (2), suffice it  to say  for  the purposes of this case, that we  are  satisfied that  the physical restraint put upon an abducted person  in the  process  of  recovering and  taking  that  person  into custody  without any allegation or accusation of any  actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial  to  the  State  or  the  public  interest,  and delivery  of  that person to the custody of the  officer  in charge  of the nearest camp under section 4 of the  impugned Act  cannot be regarded as arrest and detention  within  the meaning of article 22(1) and (2).  In our view, the  learned Judges  of the High Court over-simplified the  matter  while construing the article, possibly because the  considerations hereinbefore adverted to were not pointedly brought to their attention.  Our  attention has been drawn to sections loo (search  for persons  wrongfully  confined)  and  552  (power  to  compel restoration of abducted females) of 270 the  Code of Criminal Procedure, and it has been urged  that

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neither of those sections contemplates an accusation against the  victim and yet such victim, after recovery, has  to  be brought  before  a Magistrate.  It is to  be  observed  that neither of the two sections treats the victim as an arrested person  for the victim is not produced before  a  Magistrate under sections 60  and 61 ’which require the production of a person  arrested without warrant, or under section 81  which directs the production of a person arrested under a  warrant issued  by  a, court.  The recovered victim is  produced  by reason  of  special  provisions of  two  sections,,  namely, sections  100 and 552.  These two sections clearly  indicate that  the recovery and taking into custody of such a  victim are, not regarded as arrest at all within the meaning of the Code of Criminal Procedure and, therefore, cannot also  come within  the  protection  of article. 22(1)  and  (2).   This circumstance  also lends support"to the conclusion  we  have reached,  namely,  ’that  the  taking  into  custody  of  an abducted  person  under the impugned Act is  not  an  arrest within  the meaning of article 22(1) and (2).   Before  -the Constitution,  came  into  force it  was  entirely  for  the Legislature to consider whether the recovered person  should be  produced before a Magistrate as is provided by  sections 100  and 552 of the Criminal Procedure Code in the  case  of persons  wrongfully confined or abducted.  By this Act,  the Legislature  provided  that the  recovered  Muslim  abducted person should be taken straight to the officer in charge  of the camp, and the Court could not question the wisdom of the policy of the Legislature.  After the Constitution,  article 22 being out of the way, the position in this behalf remains the same.  Sri  Dadachanji also argued that the Act  is  inconsistent with  article  14.   The meaning, scope and  ambit  of  that article  need not-be explained again, for they have  already been explained by this Court on more than one occasion. [See Chiranjit Lal Chowdhury v.    The  Union of India  (1),  The State of Bombay v. F. N. (1) [1950] S.C.R. 869. 271   Balsara (1), The State of West Bengal v. Anwar Ali Sarkar (2), and Kathi Raning Rawat v. The State of Saurashtra (3)]. There   can  be  no  doubt  that  Muslim  abducted   persons constitute   a  well-defined  class  for  the   purpose   of legislation.  The fact that the Act is extended only to  the several States mentioned in section 1 (2) does not make  any difference,  for  a  classification may well be  made  on  a geographical  basis.   Indeed, the consent  of  the  several States  to the passing of this Act quite clearly  indicates, in  the opinion of the governments of those States  who  are the  best  judges of the welfare of their people,  that  the Muslim abducted persons to be found in those States form one class  having similar interests to protect.’  Therefore  the inclusion  of  all of them’ in the  definition  of  abducted persons cannot be called discriminatory.  Finally, there  is nothing  discriminatory in sections 6 and 7. Section 7  only implements  the  decision of the Tribunal arrived  at  under section  6.  There are several alternative things  that  the Tribunal  has been authorised to do.  Each and  everyone  of the  abducted persons is liable to be treated in one way  or another  as  the  Tribunal may determine.  It  is  like  all offenders under a particular section being liable to a  fine or imprisonment.  There is no discrimination if one is fined and  the  other is imprisoned, for all offenders  alike  are open to the risk of being treated in one way or another.  In our  view,  the  High Court  quite  correctly  decided  this question against the petitioner.

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  The  learned  counsel  for the  respondent  Ajaib  Singh contended that the Act was inconsistent with the  provisions of article 19(1)(d) and (e) and article 21.  This matter  is concluded  by  the  majority  decision  of  this  court   in Gopalan’s  case  (4)  and ’the High  Court  quite  correctly negatived this contention.  Sri Dadachanji has not sought to support  the  views of Bhandari J. regarding the  Act  being inconsistent  with  article  19  (1)(g).   Nor  has  learned counsel (1) [1951] S.C.R. 682.     (3) [1952] S.C.R. 435. (2) [1952] S.C.R. 284.    (4) [1950] S.C.R. 88. 272 seriously pressed the objection of unconstitutionality based on  article 15, which, in our view, was rightly rejected  by the High Court.  Although  we  hold  that  the  High  Court  erred  on  the construction they Put upon article 22 and the appellant  has succeeded  -on  that  point before  us,  this  appeal  will, nevertheless,  have to be dismissed on the ground  that  the Tribunal  was  not properly constituted and  its  order  was without jurisdiction, as conceded by the learned  Solicitor- General.  We, therefore, dismiss this appeal on that ground. We make no order as to costs.                              Appeal dismissed, Agent for the appellant: P. A. Mehta.