1. This is a petition under Article 226 of the Constitution for a writ of the nature of habeas corpus presented on 10-3-1966, by Abdul Gafoor who had been arrested on 27-2-1966 moving about in Neemuch and having a Pakistanee Passport with the photograph removed, which as well as the visa ceased to be valid in 1956 itself The civil authority proceeded on the footing that he is a Pakistanee citizen who having coma to India in 1956 and having reported departure in March 1956, had come again and had remained in concealment for ten years till he was arrested. Accordingly, an order under Paragraph 5 (1) of the Foreigners Internment Order 1962 was served on him and he was arrested and detained at Neemuch pending removal to the internment camp which for this area is the one at Ajmer.
2. After the petition was filed an order was made by this Court staying deportation the civil authority withdrew the internment order, and after releasing the petitioner served another order, under Clause (3) of the Foreigners (Restrictions on Pakistanee Nationals) Order 1965 restricting his movement to the limits of Neemuch Cantonment, and directing that he should not absent himself from that area for any period exceeding 24 hours without the prior permission in writing from the civil authority which in the instant case is the Superintendent of Police, District Mandsaur The point to note is that while this latter order is made under the Foreigners Order, the restrictions on movement imposed by it are such as could have been made even in respect of a citizen of India under the Defence of India Rules, and In view of the emergency and the abeyance of Article 19, even a citizen may not be able to move the Courts against it. The petitioner however, has insisted on challenging both tht orders, the first one which ceased to operate on 18-3-1966. and the second one which is in force now on the basic contention, that in spite of all that has happened which will in lime be set out in some detail he is a citizen of India and therefore any action on the footing of his being a Pakistanee National is ultra vires of the fundamental rights given by the Constitution.
3. The case has been argued at a very great length: but the questions for decision are simple.
(1) Whether at all in view of the concealment and devices practised by the petitioner and his prompters he is entitled to any assistance from this Court under Article 226. (2) Whether on the materials before us we would in fact be justified in believing that he is the son of the late Ramzani who he says has an alias name Mammu and was resi-dent in Chhaoni Neemuch till his death in 1958-59. (3) Whether assuming that he is the son of somebody in Neemuch, and that he left India in 1954, and came back on a Pakis tanee passport obtained on a declaration of Pakistanee citizenship and went again to Pakistan in 1956, whether because of all this he could be deemed still to be an Indian citi-zen. (4) Assuming that he was a minor while he obtained the Pakistanee Passport and came back to India and went again and returned his father guardian's conduct was such as to approve of his migration, and as such he would not be entitled to contend that his movements were involuntary and without the guardian's consent.
4. It is necessary to set out the facts at some length because they are of great ligniflcance and sound like pages from Kipling's 'Kim', except that they are based on the petitioner's own papers. The story begins at Karachi in December 1955, when somebody called Babu a butcher as he described himself with a Karachi address, obtained a passport for a boy he named Abdul Gafoor. said to have been born at Gwalior in 1943 We do not know the very special circumstances in which a separate individual passport was granted to a person described as a boy of 12 years, because the usual practice is to endorse it in the passport of the guardian in whose charge the minor was expected lo cross the border Another peculiar feature is that the father as such has not been named in the passport, but in the column for guardian. 'Babu' is mentioned which naturally meant that the boy was the son of this Babu.
It may be noted here itself that we are not at all in a position to decide who this Babu was and whether any such person existed what is even more to the point, the Court can be sure whether at all the person for whom this passport No. 377750 was made out was the present petitioner The key to identifica-tion is the photograph which is expected to be signed by the holder in such a way that part of the signature lies on the photograph has disappeared, and had already disappear-ed when the petitioner was arrested by the end of February 1966 Nor is the signature partly on the one or the other but there are the words Abdul Gafocu written quite outside the space for the photo. All that we know from the internal evidence is that this petitioner was found with the passport minus the photograph, when arrested and was most probably the person who had the passport when he reported departure from India in March 1956 but this is to anticipate future events.
5. Immediately after obtaining the passport Babu applied to the High Commissionerfor India at Karachi for a visa for its holder.Here again the visa was a separate one nowthe applicant Babu describing himself as the'uncle', of course with the same permanentKarachi address mentioned in the passport.The holder, that is, Abdul Gaffor, was supposed to be going to see his father at 'Neemuch. in District Gwalior'; but now also thefather is not named as such, but the Neemuchaddress of the holder is 'C/o Mahmood Mohol-la Chhoti Mandi Neemuch M. B.' If thisconveys any meaning, the holder who nowturns out to be the nephew of Babu is Iheson of one Mahmood at Neemuch. The duration of the absence was till the end of Marchand the visa-holder was to return to Karachiby that date: The visa was numbered 77231.
6. Now there is a blank, but anyway, the passport and the visa were soon at Neemuch, the holder presumably staying with Mahmood whose address he had given. If he was indeed a minor it was certain that he was brought here bv a major, may be Babu or another of his acquaintances, but we do not know because there is no record of Babu's or the other companions' movements. Anyway after staying at Neemuch between 23-12 1955 and 4-3-1956 the holder of this pass-port and visa reported to the police at the latter place that he was returning to Pakistan on 4-3-1956 leaving for Karachi viz Bar-mer Another point of interest is that in this report he has described himself as 'Mas-ter Abdul Gafoor son of Babu urf Mammoo of Karachi', in another column, as son of the same Babu Mammoo 'Musalman' of Neemuch Cantonment It may be noted even here that this is a certified extract from the police registers of the time made long before the present controversy and there is altogether no basis for the suggestion bv the petitioner that this is not genuine The authorities assumed that the holder of this passport, that is. 'Master Abdul Gaffor son of Babu alias Mammoo of Karachi' had gone on the expiry of the visa and thought no more about it But actually he was in India soon after as he himself says, escaping the attention of the authorities, thnt is. living 'underground' as the popular saving is till he was arrested by the end of February 1966, of course by the later date the civil authorities were trying to be more alerl than it was in 1956 about the movements of persons who came here on Pakistanee Passports.
7. Now the story starts again with the arrest of the petitioner on 27-2-1966 keeping with him the time expired passport (number already given) without the photograph Certainly, a time expired passport without the photograph is not a valid travel document; but it could be used at a convenient bluff, and what is more to the point, to enable more than one person to evade identification because the same paper can be carried by any member of a group or a gang-for in the absence of the photo it cannot be said to which of them the passport had been originally issued. Be that as it may. he was arrested at the first instance under Section 109 of the Criminal Procedure Code and by the time the internment order was ready on the next day that is, the 28th February, bail had been given; the petitioner had to be re-arrested in accordance with the Internment Order The procedure for internment is that the person arrested should without any delay be sent to one of the internment camps. There are different camps for different parts of the country and in the instant case the camp is outside the bounds of Madhya Pradesh and near Ajmer. At the internment camp itself the cases are more fully studied, and arrangements are made either to deport the internee, or for special reason to cancel the internment order and let them remain in Fndia Thus the internment camp is not a place of permanent or semi permanent detention but a clearing house for deportation
8. In the petition presented on 10-3 1966 we have got for the first time the story upon which the petitioner relies. He now states that he was born not at Gwalior but at Neemuch. and is the son not of Babu alias Mammoo. but of Ramzani alias Mammoo. the latler a resident of Neemuch this it is to be noted being the first time we hear of this parentage Ramzani himself had died in 1958 or 1959 so that the affidavit about the story is filed by. Samsuddin son of Ramzani. as the petitioner alleges, his brother According to this, the petitioner, then a boy. was living peace fully at Neemuch when in 1954 a mysterious person called Shafi who has not been heard of before or since appeared from some-where and 'either kidnapped or abducted this minor boy and took him to Pakistan' Why on earth he should have done it is not men tioned: but it is said that this Shafi whoever he was 'a person of view bad character and on the whole quite undesirable'. It is said further that Ramzani having missed his boy had reported to the police at Neemuch. but no trace whatsoever is found of such a report nor is a copy placed for our purposes; it has to be treated as a myth. The story further goes on that while the petitioner was wandering about helplessly in Karachi one Babu took pity on him and having obtained this passport and visa brought him back to Neemucb and placed him with his father The petitioner asserts that he did not leave or report his departure in the manner mention-ed in the police register in March 1956 hut stayed all the time at his own place openly with his parents and the rest of his family For reasons he is unable to understand, he was suddenly arrested in 1966 in the man-ner already mentioned. He states that the authorities were acting mala fide because knowing that he was an Indian citizen they first tried to arrest him under Section 109 and when bail was given tried to detain him as an internee and again restricted his movements when this petition was admitted for hearing.
9. While the crucial problem here is whether in spite of the sequence of happenings set out above we can hold that the petitioner is still an Indian citizen. three important special features must be touched upon to begin with. First, we have the thick cloud created by the petitioner himself and his prompters like the mysterious Babu butcher of Karachi, obvioush with the intention of concealing his movements This alone might disentitle the petitioner to get the assistance of this Court under Article 226; a petitioner for an equitable relief cannot by throwing dust into every body's eyes and behaving with the clear intention that he should be able to indulge in some activities which he does not want others to know The Courts in such cir-rumstances can have no choice except to refuse the assistance.
10. Secondly, as the matters now stand, the deportation order has been withdrawn and certain restrictions on the petitioner's movements outside the cantonment area of Neemuch have been imposed. They have no doubt been imposed under Ihe Restriction of Movements of Pakistanee Nationals Order 1965 But exactly the same restrictions can be imposed on any Indian citizen under the Defence of India Rules, in such event because of the proclamation of emergency even an Indian citizen will not be in a position to seek the Court's assistance against such restrictions. In this connection the petitioner has cited the rulings reported in Makhan Singh v. State of Punjab. AIR 1964 SC 381 and I. K. Ananda Nambiar v Chief Secy, to Govt. of Madras. AIR 1966 SC 657 these cases lay down the circumstances in which (he proclamation notwithstanding the Indian citizen will be able to seek Court's assistance from orders made against him restricting Ihe movements Bill those circumstances are not found here. In spite of the softening of Ihe original order into one of restrictions of movement within the cantonment area, the petitioner still wanted to pursue his petition with the express purpose of getting a finding thai he is an Indian citizen In that sense the petition is made with an ulterior purpose.
11. Yet another point is that the entire basis of the petitioner's case is the factual allegation that sometime in 1954 while he was a boy of about 11 or 12 years a mysterious evil minded person came and kidnapped him and left him at Karachi Again when he was brought back from Karachi by Babu alias Mammoo he did not go buck though be reported at the police station on 4-3-1956. that he was leaving for Karachi via Barmer. The story of the kidnapping is certainly false as also the assertion that his father whether or not it was Ramzani or somebody else gave a report to the police. Again his lather or the guardian whoever it was at Neemuch if indeed the petitioner was a minor at that time did not report or show any objection against his informing the police that he was leaving for Karachi and at any rate leaving Neemuch on 4-3-1956. These special features have to he borne in mind when examining the narrower questions that arise out of the petition.
12. The return does not expressly question the averment that the petitioner had originally belonged to Neemuch whether or not his father's name was Ramzani or Mammoo or any such thing. In spite of the uncertainly in this regard we have to proceed on the assumption that this man had originally belonged to Neemuch, and his or his prompter's statement at Karachi that he belonged to Gwalior was false. If he was a minor at about the time when he says he migrated to Pakistan which again is uncertain, he was in charge of a guardian who might have been his father himself at Neemuch. It was in 1954 or sometime earlier. There is absolutely no indication that the petitioner's migration to Pakistan was in any manner without his father's active consent or even participation The 'Shafi' story is obviously false because in the event of somebody having kidnapped or abducted the petitioner his father must have started a case or at least given a report. As it is, he has failed to pro-duce any copy of such information or report and no such thing is in existence. The only conclusion is that the petitioner migrated to Pakistan of his own accord. It is uncertain if indeed he was a minor at the time of his migration whenever it was; but even if he was his father or guardian was a party to it and did not in any manner dissociate him self from it. The Stale cannot be expected to know the circumstances in which he migrated. The alternatives are that the father himself went to Pakistan and if he did come back came back quietly more or less in the manner Babu butcher with the Karachi address did come to India. As the latter has been done without a trace it should have been equally possible for the father of the petitioner assuming it was somebody other than Babu to have done the same Anyway, it is certain that there was no kidnapping and no objection by the father.
13. This finding is strengthened by the happening in March 1956. That the holder of this passport which was presumably the petitioner, did go and report at Neemuch is altogether beyond doubt. This is in fact what he also says; but while he says that he did not report the intended departure on 4-3-1956 the State's case is that he did make a report. and having gone came back secretly or hav-ing made a show of going, concealed himself for ten years till he was arrested in Febru ary 1966. The copy of the report itself is from an old register made ten years before the present controversy we certainly accept it as having been made at the instance of the passport holder, that is, the petitioner, on that date. How and in what circumstances the petitioner either went back or returned or jus! went underground in India itself is certainly a matter upon which we cannot expect the Stale to have first-hand knowledge They expected him to go back in due course and when somebody with the same passport in the manner already described was found moving about suspiciously they arrested him. For ten years the petitioner has been moving about in India.
What we have to note here is that in 1956 when according to the petitioner he was still a minor in the guardianship of his 'father, the latter did not make any attempt to prevent his going away back to Pakistan or at all events behaving as if he was really going away and then concealing himself. About the person who brought him back from Pakistan on that occasion we are in dark. What happened to the passport on which this Babu alias Mammoo came or whether he had himself a passport or whether he return ed to Karachi we do not know. For aught we know he might be the same person as the father or the guardian In these circumstances the theory that the migralion was volunlary cannol be accepted. If the migralion was voluntary then certainly the declaration of Pakis-tanee citizenship was also voluntary and the petitioner is a Pakistanee citizen.
14. Quite a quantity of case law has been placed by the parties but the general lines on which such petitions have to be dealt with are by now fully established. Where there has been no migration at all or where the migration has been involuntary or under compulsion the person does not become the citizen of the receiving country. Typical of such rulings are the two Allahabad cases reported respectively in Sharafat Ali Khan v. State of Uttar Pradesh. AIR 1960 All 637, and Saghir Ahmad v. State. AIR 1961 All 507 and the Madhya Pradesh case in Usman Ali v. State, 1964 Jab LJ 53. In the first case a minor had migrated to Pakistan and there was no approval of this migration by the guardian. In the second case it was held that there was nothing to show that the minor's father ever wished him to renounce his Indian nationality In both these decisions parts of the wording are somewhat general but the key to the decisions of the Single Bench is the finding that the minor's migration was withoul the approval of the father guardian In the Jabalpur case which is by a Divisional Bench the position was the person concerned who was a minor went with a relation of his without the approval of the father and then came back once and continued to stay with the father at his usual place of residence In the instant case, however apart from the fact we are not certain that the person was a minor, even on the assumption of the minority he went once, the father doing nothing whatsoever to prevent it or even to record his dissent: he came back and went again, on this occasion also the father did nothing to stop it. So the principle of these three rulings has no application to the instant case.
15. That a person voluntarily migrating to Pakistan and obtaining a Pakistance passport on a declaration of that nationality loses his Indian citizenship is the effect of the Indian Citizenship Act and Rules and has further been affirmed by a number of decisions of our Courts. Typical among them are the following. In Sulaiman Hussain Abidi v. State of Hyderabad, AIR 1955 Hyd 34 there was a question of alleged minority on the date of migration though by the time the person returned he was undoubtedly a major. The exact purport of the word 'mi grate' has also been examined; but it is unnecessary to enter into it as this has been fully explained in the Supreme Court judgment reported in Smt. Shanno Devi v. Man-gal Sain, AIR 1961 SC 58. The other cases in which it has been held that migration properly so called has the result of taking away Indian citizenship are State of Bihar v. Kumar Amarsingh, AIR 1955 SC 282 and Fateh Mohommad v. Delhi Administration, AIR 1963 SC 1035.
16. In the recent decision of the Supreme Court in Kulathila Mammoo v. State of Kerala, Criminal Appeal No. 24 of 1965 decided in the Supreme Court on 2-3-1966 = (AIR 1966 SC 1614) the migrant was a minor both at the time of departure to Pakistan and on his return. Most of what has been said there applies fully to the present case, Certainly the migration there was before 1950 while the petitioner alleges with what degree of truth or otherwise we are unable to verify that his migration was after that daic But the relevant grounds do not involve this question. This ruling definitely rules out the thesis propounded by the petitioner that a minor cannot at all be deemed to migrate.
17. All things considered we are unable to verify any of the statements of the petitioner. Assuming that he came originally from Neemuch and not from Gwalior as he had stated at Karachi, and even assuming that he was the son of somebody born and originally living at Neemuch. still his migration has not been established to be without his approval. On the contrary the two relevant incidents fully establish that he went away with the father guardian's approval on both the occasions and had not been kidnapped on the first. Thus even if he was a minor on which point also we are not able to verify his averment still in the circumstances the ruling of 1964 Jab LJ 53 (supra) has no application. The petitioner had accepted Pa-kistanee citizenship and had come to India on a Pakistanee passport with which he was still staying on for ten years in secret; the removal of the photograph only adds to that confusion.
18. One more point has been argued upon by the parties subsequently to the main hearing. The petitioner's allegation is that there was something ulterior in the civil authority vacating the internment order and substituting the restriction order. The authority has given its return on this new point also; it is jo the effect that when the High Court stayed the deportation which is of course the, ultimate purpose of the intern merit; the authority did not want that the petitioner should be removed outside the bounds of this State, and at the same time did not also want thai he should be free to do any of the apprehended mischief. Accordingly, it made the restriction order. In fact, from the view point of the petitioner the restriction order is a great relaxation. We find nothing ulterior in it. If anything, it was an excessive anxiety on the part of the authority not to appear to evade or to disobey the High Court's order. Internment necessarily implied the removal to a camp near Ajmer outside Madhya Pradesh, It is not deportation because the internee would still be in India; but the civil authority did not, out of excessive regard to the High Court's order, want any mistake to be committed or a deportation to take place. Thus no special action by us is called for in this regard.
19. The petition is accordingly dismissed and the petitioner is ordered to pay hearing fee of Rs. 100 (one hundred) to the opposite party. The balance of the deposit maybe refunded to the petitioner on verification.