1966 (12) TMI 66 - SC - Customs

Whether the detention is legal or illegal? Held that - GSR 1276 was issued on 27-8-1965 .amending the earlier order by including Art. 14 therein. After 27-8-1965 therefore no foreigner has the right to move the Court though his fundamental right under Art. 14 of the Constitution is violated. In that sense the order is not retrospective but prospective. It only operates on the right of a person to move the Court.As the petitioner in the present case filed his petition on 12th May 1966 that is subsequent to the promulgation of the order he has ceased to have any right to move this Court. The fact that he complained of his detention for a period earlier to that date has no bearing on the question of the maintainability of the petition. The order of detention dated 18th September 1964 reads In exercise of the powers conferred by sub-section (1) read with clause (g) of sub-section (2) of section 3 of the Foreigners Act 1946 (31 of 1946) the Central Government hereby orders that Shri Ghulam Mohuddin a Pakistani National shall be arrested and detained until further orders. Clause (g) enables the Central Government to make an order detaining a foreigner. The clause does not narrate the reasons for which he can be detained. If as the respondent says the petitioner is involved in a serious case of conspiracy to smuggle gold and on that account his detention in India was necessary to make further investigation with regard to his conduct we do not see why the wide power conferred on the Central Government to detain him under clause (g) could not be invoked. There is no merit in this contention also. Appeal dismissed.

Issues Involved:
1. Validity of the detention under Section 3 of the Foreigners Act, 1946.
2. Application of the principle of res judicata to habeas corpus petitions.
3. Justiciability of the declaration and continuation of the emergency under Article 352 of the Constitution.
4. Validity of the President's order under Article 359(1) of the Constitution.
5. Allegations of mala fides in the detention order.

Detailed Analysis:

1. Validity of the Detention under Section 3 of the Foreigners Act, 1946:
The petitioner, a Pakistani national, was detained under Section 3(2)(g) of the Foreigners Act, 1946, after being arrested for entering India without travel documents and subsequently being involved in a conspiracy to smuggle gold. The petitioner challenged the detention on the grounds that it was not for any purpose connected with the security of the State but only for completing an investigation in a conspiracy case. The Court held that the wide power conferred on the Central Government under Section 3(2)(g) could be invoked for such detention, as the clause does not specify the reasons for detention. Thus, the detention was deemed valid.

2. Application of the Principle of Res Judicata to Habeas Corpus Petitions:
The respondents argued that the dismissal of the writ of habeas corpus by the Punjab High Court should operate as res judicata, barring the maintainability of the present petition. The Court, however, held that the principle of res judicata does not apply to habeas corpus petitions. It was noted that habeas corpus petitions are not considered judgments in the technical sense and thus do not preclude subsequent petitions on the same grounds. The Court emphasized that the fundamental right to personal liberty necessitates that such petitions be considered on their merits, irrespective of prior dismissals.

3. Justiciability of the Declaration and Continuation of the Emergency under Article 352:
The petitioner contended that the declaration of emergency in 1962 and its continuation for four years was mala fide and an abuse of power. The Court acknowledged the extraordinary nature of the powers under Part XVIII of the Constitution, which transforms the federal structure into a unitary form during emergencies and suspends certain fundamental rights. However, the Court did not express an opinion on the mala fides or abuse of power due to a lack of material evidence. The Court also refrained from deciding whether such questions are justiciable, leaving the matter open for future consideration.

4. Validity of the President's Order under Article 359(1):
The petitioner argued that the President's order under Article 359(1), which suspended the right to move any court for the enforcement of fundamental rights, was discriminatory and violated Article 14. The Court examined whether the President's order could be considered a law under Article 13(2) and thus be subject to scrutiny for violating fundamental rights. The Court concluded that even if the President's order could be considered a law, it did not violate Article 14 as there was a rational nexus between the classification of foreigners and the objective of national security during the emergency. The Court held that the President's order was valid and not discriminatory.

5. Allegations of Mala Fides in the Detention Order:
The petitioner alleged that the detention order was mala fide, as it was issued to facilitate an investigation into a conspiracy to smuggle gold rather than for reasons related to national security. The Court found no merit in this contention, stating that the wide powers under Section 3(2)(g) of the Foreigners Act allowed for such detention if it was necessary for investigating serious offenses like smuggling. The Court dismissed the argument of mala fides, upholding the validity of the detention order.

Conclusion:
The Supreme Court dismissed the petition, upholding the validity of the detention under the Foreigners Act, rejecting the application of res judicata to habeas corpus petitions, and affirming the validity of the President's order under Article 359(1). The Court did not find sufficient evidence to rule on the mala fides of the emergency declaration or the detention order.

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