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Mohd. Abdul Ghani Hamid Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ703
AppellantMohd. Abdul Ghani Hamid
RespondentThe State
Excerpt:
.....he alleged that the grounds served on him were vague. section 3: (1) the central government or the state government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (ii) the security of the state or the maintenance of public order; (b) if satisfied with respect to any person who is a foreigner within the meaning of the foreigners act, 1946(31 of 1946) that with a view to regulate his continued presence in india or with a view to make arrangements for his expulsion from india. section 3(1)(a) provides for the detention of any person if the conditions laid down therein are satisfied, whereas sub-section (b) prescribes for the detention of any person who is a foreigner within the meaning of the foreigners act for the..........to read the relevent provisions of the section.section 3:(1) the central government or the state government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to(ii) the security of the state or the maintenance of public order;(b) if satisfied with respect to any person who is a foreigner within the meaning of the foreigners act, 1946(31 of 1946) that with a view to regulate his continued presence in india or with a view to make arrangements for his expulsion from india.it is necessary so to do, make an order directing that such person be detained. 7. the argument is that, in the case of a foreigner the power of the government to detain a person is confined only to section 3(1)(b) and, therefore, the detention.....
Judgment:

Subba Rao, C.J.

1. This is an application under Article 226 of the Constitution of India for issuing a writ of Habeas Corpus for the immediate release of the petitioner who is now detained in the Hyderabad Central Jail, Chenchalguda.

2. The petitioner is a Muhammadan and a Deendar by creed. He was detained once in 1935 and on the second occasion in 1945 in the North West Frontier Province for preaching Deendar Creed. He was also detained in the general round up immediately after the police action. There is no record of his subsequent activities. But, it appears that, after release, he left for Pakistan. He came back to India in October 1954 holding a category V Visa granted to him on 6-10-1956 on his Pakistan passport NO. 361398 by the Indian High Commissioner at Hyderabad (Sind). On his application, the said visa was extended up to 20-12-1956. On 17-2-1956, he asked for further time till the end of June 1956, on the ground that his daughter was seriously ill. But, the Government of India refused to extend the time. Despite the refusal, he continued to stay in India. Since he came over here, the Commissioner says in his counter affidavit that he was addressing Friday gatherings at Khan-Quahe-Sarwar-E-Alam, Asif. nagar. On 23.12.1956, in exercise of the powers conferred on him by Section 3(1)(a)(ii) and (2) of the Preventive Detention Act, the commissioner directed the petitioner to be detained. On 27-10-1956, a copy of the grounds of detention was served on the petitioner wherein it was stated as follows:

He is a Deendar and a fanatic. He was detained twice in North West Frontier Province, once in 1935 and at another time in 1945 when he went there for preaching Deendar creed. He was also detained in the general round-up immediately after the police Action.

Ever since his arrival in Hyderabad in October 1955, he has been indulging in objectionable communal activities and has been making irresponsible utterances at the Friday gathering in the Khan-Qhah-E-Sarwar-E-Alam, Asifnagar. At these meetings he indulged in criticising the Policy of the Government, which as an alien, he is not entitled to. His speeches are provocative and tinted with communalism, the central idea of which is briefly summarised below:

1. Muslim Supremacy would be established in India as predicted by Siddia Deendar.

2. Only Muslims know the art of Administration and not the leaders or kings of other communities.

3. God has promised to perpetuate Caliphate and Nizam would be Caliph.

4. That he would go to Pakistan and on his return would surely find the present Government not in power.

It is clear from these that he is abusing the concession granted to him for visiting India. Further, he has overstayed the period of visa with the definite object of carrying on his prejudicial activities. He is a foreigner, being a Pakistan National, and as such he has no right to discuss or criticise the policy of the Indian Government. The object of delivering such speeches which are highly imflammatory is to spread and foment communal hatred. These speeches are capable of creating ill-feeling between various classes and communities and are calculated to undermine the security of the state.

His continued presence in Hyderabad is against the safety of India and involves public security.

As from the ground set forth above, I was satisfied that if Shri Abdul Gani Hamid was permitted to remain at large, he would continue to act in a manner dangerous to the security of the State, and that he could not be prevented from so acting dangerously without being placed in preventive detention in exercise of the powers conferred upon me by Section 3(1)(a)(ii) of the Preventive Detention Act, 1950....

3. The petitioner filed objections wherein he alleged that the grounds served on him were vague. He denied that he made any speeches wherein he made the statement attributed to him by the Commissioner. He also alleged that the detention order was mala fide and was intended only to harass him to leave India.

4. It is represented to us that the matter was referred to the Advisory Board, that they made their recommendation to the Government and the final orders of the Government on the said recommendations have not yet been made.

5. In the present petition, the petitioner questioned the validity of the order of detention on four grounds;

(i) The grounds furnished are extremely vague,

(ii) They are irrelevant.

(iii) The order is mala fide inasmuch as the said order was made with the ulterior motive of driving the petitioner out of India and

(iv) The petitioner being a foreign national Government had no power to act under Sections (1)(a)(ii) of the Preventive Detention Act.

6. The learned Counsel for the petitioner con. tends that the petitioner is a foreigner and, therefore, the Commissioner had no power to detain him under Section 3(l)(a)(ii) of the Preventive Detention Act. To appreciate this contention, it would be convenient to read the relevent provisions of the section.

Section 3:

(1) The Central Government or the State Government may (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to

(ii) the security of the State or the maintenance of public order;

(b) If satisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946(31 of 1946) that with a view to regulate his continued presence in India or with a view to make arrangements for his expulsion from India.

It is necessary so to do, make an order directing that such person be detained.

7. The argument is that, in the case of a foreigner the power of the Government to detain a person is confined only to Section 3(1)(b) and, therefore, the detention under Section 3(1)(a)(ii), which applies only to citizen of India, is illegal. Section 3(1)(a) provides for the detention of any person if the conditions laid down therein are satisfied, whereas Sub-section (b) prescribes for the detention of any person who is a foreigner within the meaning of the Foreigners Act for the purposes mentioned therein, namely, ' with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India.' The question is whether, as Sub-section (b) provides for the case of a foreigner, he is excluded from the operation of Section 3(1)(a). In support of the contention of the learned Counsel for the petitioner, reliance is placed upon the rule that prima facie the Legislature of this country must be taken to make laws for its own subjects exclusively and also on rule generalibus specialia derogant which means special things derogate from general. The decision of the House of Lords in Charles Jefferys v. Thomas Bossey (1854) 4 H. L. C. 815(A) is relied on for the first proposition and the decision in Khan Gul v. Lakha Sing I. L. R. 9 Lah. 701 : A.I.R. 1928 Lah. 609(F, B.)(B), is cited in support of the second one, Belying upon the said decisions, it is con-tended that the general word 'person' in Sub-section (a) should be confined to a citizen of India and that Sub-section (b) should be made to govern a foreigner. We cannot accept this argument. Sub-section (a) applies to any person and the word 'person' is comprehensive enough to take in citizens as well as foreigners. The mischief sought to be averted by Sub-section (a) applies equally to a citizen as well as to a non-citizen. There cannot be particular reason why a non-citizen who is likely to act in a manner prejudicial to the security of the State or the maintenance of public order should be in a better position vis-a-vis the power of detention of a citizen. Such acts done by any person irrespective of his citizenship are detrimental to the security of the State, and therefore, a person's qualification for citizenship cannot conceivably be ground for making a distinction for the purpose of Sub-section (a), If the parliament intended to confine the operation of Sub-section (a) to a citizen, it would have used the word 'citizen' instead of the general word 'person.' The words in Sub-section (b) namely, any person who is a foreigner' make the intention of the Legislature clear as those words indicate that the word 'person' is used in a comprehensive sense so as to take in a foreigner. There is no scope also for the application of the second principle relied upon by the learned Counsel, for Sub-sections (a) and (b) are intended to achieve different objects and to pro-vide for distinct purposes. While Sub-section (a) is concerned with the internal and external security of the State, Sub-section (b) deals with the preliminary steps necessary to take action under the Foreigners Act, 1946. Under the Act, certain powers are conferred on the Central Government for the purpose of regulating the presence of a foreigner in India and to expel him from the country. The fact that for those purposes Sub-section (b) enables the detention of a foreigner, cannot, in our view, affect the general power conferred on the Government to take preventive action against such a person under Sub-section (a). The scope of the two sub-sections is different and they are intended to meet different contingencies, and, therefore, they cannot be so read as to exclude a foreigner from the operation of the word 'person' in Sub-section (a). We therefore, hold that the Commissioner under Section 8 has power to detain a citizen under Sub-section (a).

8. In this connection, an argument advanced by the learned Public Prosecutor may also be noticed. He contends that the petitioner, who is a Pakistani citizen, is not a foreigner within the meaning of the Foreigners Act. In support of his contention, reliance is placed upon a proclamation issued by the President under Article 367 of the Constitution of India declaring Pakistan State not to be a foreign state for the purpose of the Constitution. The proclamation does not state that a citizen of Pakistan is not a foreigner for the purpose of the Foreigners Act (XXXI of 1946). Nor does the Citizenship Act of 1955 advance the argument of the learned Public Prosecutor. That Act makes a distinction between a Commonwealth citizen and a citizen of India. Under B, 11, every person, who is a citizen of a Commonwealth country specified in the First Schedule shall, by virtue of that citizenship, have the status of a Commonwealth citizen in India. One of the countries specified in the first schedule is Pakistan. Under Section 12, the Central Government may, by order notified in the Official Gazette make provision on a basis of reciprocity for the conferment of all or any of the rights of a citizen of India on a citizen of any country specified in the first Schedule and no such notification has been brought to our notice conferring rights of a citizen of India on citizens of Pakistan. As neither the proclamation issued by the President under Article 367 of the Constitution nor the provisions of the Citizenship Act 1955 Confer rights of citizenship of India on citizens of Pakistan, the question is whether the petitioner is a 'foreigner' within the meaning of the Foreigners Act. The relevant portion of the definition of foreigner under the Act reads:

Section 2(a):

Foreigner means a person who (iii) is not a citizen of India.Though in the petition it is stated that the petitioner is a citizen of India, the argument proceeded before us on the basis that he is a citizen of Pakistan. As he is not a citizen of India, he is a foreigner within the meaning of the Foreigners Act and, therefore, he is liable to be proceeded against under Section 3(i)(b) of the Preventive Detention Act.

9. Coming to the merits, though in the petition it is stated that the action of the Government is mala fide, no serious attempt is made before us to substantiate that plea. We have carefully gone through the material placed before us on which the grounds were based and we cannot discover any mala fides on the part of the commissioner.

10. Nor can we say that the grounds are either vague or irrelevant. They give sufficient particulars for the petitioners to file his objections and indeed he filed objections denying that he made any of the statements attributed to him.

11. It is settled law that the satisfaction in B. 3 is that of the detaining authority and this Court can only scrutinise the grounds furnished to see whether they are in fact relevant to the object sought to be achieved. The object sought to he achieved in the present case is the security of the State. The petitioner in the contest of the disintegration of the State of Hyderabad and in the presence of a large concourse of Muslims made speeches eulogising the supremacy of the Muslims over others in the art of administration, promising to establish Muslim supremacy in India and to make the Nizam the Caliph and predicting the fall of present Government before his return from Pakistan which are sufficiently provocative to excite and rouse the passions of communally-minded persons tending to communal troubles in this State and affecting its security. When the authorities concerned were satisfied that, for the aforesaid reasons, the petitioner is acting in a manner prejudicial to the security of the State, we cannot say that the aforesaid grounds are irrelevant for their satisfaction. We are confident that the sufficiency of the grounds, as the liberty of a subject is involved, would have been carefully and conscientiously scrutinized by the Advisory Board appointed under the Act. That is not within our Province.

12. The petition fails and is dismissed.


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