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TMI Blog1970 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 re-arrest was challenged in this application. 2. 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. 3. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 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 According to the application dated June 15, 1970 the order of detention was revoked on June 9, 1970 with the result that the habeas corpus petition assailing that order must be considered to have become infructuous.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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I have reproduced this notification because Shri H.K. Puri, the learned Counsel appearing amicus curiae in support of the petitioner's application for habeas corpus, had raised the point that it was the Central Government alone which could make a lawful order of deportation under Section 3(2)(c) of the Foreigners Act. This notification is a complete answer to this objection because the President has under Article 258 lawfully entrusted inter alia to the Government of Jammu Kashmir the function of the Central Government under Section 2(3)(c), (d), (e) and (f) of the Foreigners Act. 6. Reverting to the fundamental right claimable by the petitioner who is not a citizen of India it is clear that Article 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 liberty except according to procedure established by law. Article 22 deals with detention of persons in certain cases. In the case in hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure established by law so as to require this Court to order his immediate release. In State of Punjab v. Ajaib Singh MANU/SC/0024/1952MANU/SC/0024/1952 : 1953CriLJ180 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 taking her into custody without any allegation or accusation of any actual or suspected or apprehended commission by her of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest and handing her over to the custody of the officer-in-charge of the nearest camp under Section 4 of the Abducted Persons (Recovery and Restoration) Act, 55 of 1949 could not be regarded as arrest and detention within the meaning of Article 22(1) and (2). In the State of U.P. v. Abdul Samad MANU/SC/0102/1962MANU/SC/0102/1962 : AIR1962SC1506 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and held that there was no violation of Article 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 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 Article 22(2) on the facts and circumstances of the present case. 8. 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 Clause (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 Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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