1970 (7) TMI 83 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the petitioner's detention and re-arrest.
2. Petitioner's right to challenge his detention under habeas corpus.
3. Applicability of fundamental rights to the petitioner as a foreigner.
4. Legality of the deportation order issued by the State Government.
5. Compliance with procedural requirements under the Constitution and relevant laws.

Issue-wise Detailed Analysis:

1. Legality of the petitioner's detention and re-arrest:
The petitioner was initially detained on January 30, 1970, under an order dated January 27, 1970, pursuant to Section 3(1)(b) read with Section 5 of the Jammu & Kashmir Preventive Detention Act, 1964. The petitioner was informed of the grounds of his detention and his right to make a representation, which he did not exercise. The detention was aimed at making arrangements for his expulsion from the State of Jammu & Kashmir. The petitioner's re-arrest after the expiry of his initial sentence was challenged, but the State justified it as necessary for his expulsion.

2. Petitioner's right to challenge his detention under habeas corpus:
The petitioner filed a habeas corpus application asserting that his detention was illegal. However, the State argued that the detention order was revoked on June 9, 1970, and the petitioner was ordered to leave India within ten days. The court had to decide whether to release the petitioner immediately or dismiss the writ petition as infructuous and allow the State to proceed with the expulsion.

3. Applicability of fundamental rights to the petitioner as a foreigner:
The petitioner, being a foreigner as defined in the Foreigners Act, 1946, was not entitled to fundamental rights guaranteed by Article 19 of the Constitution. The court noted that the only rights the petitioner could claim were those under Articles 20 to 22. The detention was deemed lawful as it was aimed at expelling the petitioner, a foreigner, from India.

4. Legality of the deportation order issued by the State Government:
The deportation order was issued under Clause (c) of Sub-section (2) of Section 3 of the Foreigners Act, 1946, read with the Ministry of Home Affairs Notification issued under S.O. 590 dated April 19, 1958. The court found that the President had lawfully entrusted the State Government with the function of making such orders, thus validating the deportation order.

5. Compliance with procedural requirements under the Constitution and relevant laws:
The court examined whether the petitioner's detention and subsequent actions complied with Articles 20, 21, and 22 of the Constitution. It was concluded that the detention was lawful under Section 3(1)(b) of the J&K Preventive Detention Act for the purpose of expelling the petitioner. The State had complied with procedural requirements, including informing the petitioner of the grounds of detention and his right to representation. The court also referred to precedents, such as the State of Punjab v. Ajaib Singh and the State of U.P. v. Abdul Samad, to support the legality of the detention and deportation process.

Conclusion:
The court dismissed the habeas corpus petition, holding that the petitioner, as a foreigner, had no right to remain in India and that his detention and deportation were lawful and in compliance with the relevant legal provisions. The petitioner's claim to personal liberty could not override the statutory regulations governing the entry, stay, and expulsion of foreigners in India.