1. This is an application under Article 226 of the Constitution for issue of (a) a writ in the nature of habeas corpus to the State directing it to produce the person of the petitioner's brother Izhar Ahmed Khan alleged to have been illegally arrested and detained and to release him from custody; (b) a writ of certiorari declaring the order of arrest and detention to be improper, illegal, inoperative and void and (c) to issue such orders or directions as may be required for the enforcement of Izhar Ahmed Khan's fundamental rights under the Constitution.
2. The petitioner alleges that Izhar Ahmed, who is his brother, is a citizen of India, on various grounds stated in paras. (4) to (14) of the petition viz., that he was born at Bhopal and finished his education here; that his father was born at Merrut in Uttar Pradesh and died in Bhopal; that his mother was also born at the same place and was a teacher in the Girls' School at Bhopal and resides here; that Izhar Ahmed's wife and entire family lived at Bhopal and he is a tenant of one Mahmuda Begum and also had a shop taken on lease from the Custodian of Evacuee Property; that his name is entered in the Municipal Electoral Roll as also in the Electoral Rolls of the Legislative- Council, Bhopal and the Bhopal Legislative Assembly and is a voter from the Shishmahal Constituency etc.
3. Izhar Ahmed was arrested by the Sub-Inspector of Police at 9 p. m. on 20-8-1952 at a hotel, under a warrant and taken to the Kotwali Station House, Bhopal where he was informed that he was arrested under an order from the Bhopal Government under 8. 7, Influx from Pakistan (Control) Act. He was then taken away from Bhopal the next morning. It is said that Izhar Ahmed never went to Pakistan nor was he prosecuted under the above Act and his arrest and detention were illegal, mala fide and contrary to law and contravened his fundamental rights; that the order under Section 7 of the Act 'ibid' was bad in law and void under the Constitution; that Section 7 of the Act militates against the fundamental rights of Izhar Ahmed under Article 19(1) (d) and (e) of the Constitution and is void. It is also added that no grounds were given to Izhar Ahmed for his arrest and thus the requirements of Article 22 of the Constitution were contravened and that he was not also produced before a Magistrate infringing the provisions of Article 21 of the Constitution.
4. On behalf of the State it was denied that Izhar Ahmed Khan was ever a citizen of India; the grounds stated in paras. (4) to (14) of the petition allegedly supporting such claim are also denied as not known. It is added that Izhar Ahmed was not a tenant of Mahmuda Bepum since May 1951 when he migrated to Pakistan.
5. It is also said that Izhar Ahmed was arrested and removed to Pakistan under the orders of the Government of Bhopal after showing him the order in question. It is further added that Izhar Ahmed did go to Pakistan in about June 1951 and returned to India by about May of 1952 without a permit requisite under the Influx from Pakistan (Control) Act and the rules thereunder and though was not prosecuted, was liable to be removed to Pakistan and that the order was legal and proper and did not contravene any such fundamental rights as claimed.
6. It was said that no grounds were required, under the law, to be supplied to Izhar Ahmed as he was not being detained. In the alternative it is said that even if Izhar Ahmed was a citizen of India, he lost his such right by going to Pakistan. He was removed from Bhopal within 24 hours for being taken to Pakistan.
7. It is contended that Izhar Ahmed having been removed to Pakistan, no relief, as claimed, could be granted and the order being an executive and administrative order, could not be challenged.
8. The petitioner, in support of his allegations, has filed some documents and affidavits of himself and some persons while the State produced affidavits of its officers and extracts of certain documents received by them which were claimed to be privileged under Sections 123 and 124, Evidence Act.
9. The question, whether the evidence regarding the documents referred to by the non-applicant-State were privileged, was reserved for a finding along with the merits of the case and is being discussed now. In this connection, the relevant provisions of the law are Sections 123, 124 and 162, Evidence Act. Under Section 123, information about the affairs of the State is protected from disclosure except with the permission of the Head of the Department on the ground of public policy in the interest of public. Two points arise in consideration of this matter viz., whether the document, from which the information is to be given, is on a matter relating to affairs of the State and whether the disclosure would be against public interest. It is for the Court to decide if the documents relate to the affairs of the State while it is for the Head of the Department concerned to decide if the disclosure would be against public interest: - Ijjatali v. Emperor AIR 1943 Cal 539 (A) and - Bhaiya Saheb v. Ramnath AIR 1939 Nag 358 (B).
10. In deciding the first question the document should be produced before the Court because without if it would not be possible to find if it is an unpublished record of the affairs of the State. Under Section 162, Evidence Act a witness is bound to produce a document in his possession or power notwithstanding any objection to its production or admissibility and the Court may inspect the document unless it refers to matters of State affairs, or take other evidence to enable it to determine on its admissibility and for this purpose the Court may obtain its translation which, however, may be directed to be kept secret. It would thus appear that ordinarily a document Is bound to be produced in the Court unless it relates to the affairs of the State and even if the latter, it must be produced for inspection of the Court and the Court may obtain other evidence, if it relates to the affairs of the State.
11. After examining the rules governing the privilege their Lordships of the Judicial Committee in - Robinson v. State of South Australia AIR 1931 PC 254 (C), have held that it is the supreme duty of the Court to protect the privilege when it exists, but in order to determine the validity of the objection, the Court has power to inspect the document in appropriate cases: - 'Robinson's case (C)' is the leading authority on the principles involved in the question of privilege.
12. Unpublished records of affairs of State may, in my opinion, include (1) documents that passed between two States; (2) documents between the State and its own subject; (3) documents between the State and a subject of another State; (4) documents between subjects of more than one State and (5) documents that passed between Heads of Departments or between Ministers of a State etc.
13. The Government Advocate for the State has laid a statement before the Court that information was received by a secret method about the movements of a certain person and has placed before the Court a translation of a relevant extract or the secret information. The other document consists of a copy of the record of the information given by the Head of one Department to a Minister of Bhopal. Both these are kept in a sealed cover on the record. The first document is, therefore, an unpublished record of State affairs consisting of secret information acquired by the State by a secret process both of which cannot be compelled to be disclosed. The other document is a record of communication in the confidential administration of the State. It is stated by the learned Government Advocate on behalf of the State that the Heads of the Departments concerned considered the documents and came to the conclusion that they cannot be produced in the interest of the public. In my opinion, both these documents, therefore, are privileged and as such cannot be disclosed but such parts of their contents as are disclosed can be made use of for the consideration of the question or questions arising for consideration in the case on hand.
14. Turning to the merits, the first question for decision is whether Izhar Ahmed is a citizen of India. It must appear that the very basis for the tenability of the petition is the Indian Citizenship of Izhar Ahmed because the fundamental rights as declared in Article 19 of the Constitution, particularly Article 19(1)(e) and (d) are claimed for him and it is said that his latter right is infringed and violated. Article 5 of the Constitution lays down the essentials for clothing a person with citizenship of India or Indian union. It runs as follows:
At the commencement of this Constitution every person who has his domicile in the territory of India and-
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.
It would thus appear that two things are essential in this connection viz., that a person should have domicile in the territory of India and one of the clauses out of the above three Clauses (a), (b) and (c). In - B. Choudhary v. The State of Bhopal AIR 1951 Bhopal 1 (D) it is observed that:
Domicile is the place where a man has his home or a person's regular place of abode or generally speaking, the place where he has his permanent home. That place is properly the domicile of a person in which he has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his permanent home.
Applying this meaning to the word, it would appear that Izhar Ahmed satisfied these essentials. Several documents are filed on record which clearly indicate that Izhar Ahmed was born at Bhopal in 1921, had his education in one of the Schools at Bhopal and carried on business at this place since then. It also appears that he was married to one Mst. Wahida Begum under the 'Nikahnama', dated 20-11-1946 and was residing in a rented house of one Mahmuda Begum in respect of which rent-receipts are filed on record. Sugar ration-cards were also obtained in his name from time to time and subscription for a mosque also was paid on his behalf or by him. Certified copy of the Electoral Boll to general elections held in 1952 and ' copies of the Voters' List of the Legislative Council Bhopal 1947 and of Voters' List for the Municipal Board, 1949 are also filed on record and his name is included amongst the voters. In the circumstances it can be safely held that Izhar Ahmed had his permanent home in Bhopal and as such had his domicile in the territory of India.
15. This is, however, not enough. It must be shown that he was either born in the territory of India or at least one of his parents was born here or he had been ordinarily resident in the territory of India for not less than five years, immediately preceding the commencement of the Constitution. In support of this, his brother Iqbal Ahmed has filed an affidavit dated 3-9-1952 and in para. 4 of his affidavit it is stated that 'Izhar Ahmed was born at Bhopal in 1921' and this is supported by the extract from the School Register. The same affidavit, in paras, 5 and 6 states that both his parents were born at Merrut in Uttar Pradesh and as stated above the documents referred to indicate that he was a resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution.
16. The State has not seriously denied these allegations in the reply that was filed. These allegations were merely denied as not known and in my opinion, in view of the above evidence it is proved that Izhar Ahmed was a citizen of India.
17. It was also stated on behalf of the State that Izhar Ahmed having migrated to Pakistan -had lost his rights of citizenship. What is 'migration' is very elaborately discussed and laid down In - Shabbir Hussain v. State of U. P. : AIR1952All257 and several other decisions of the different High Courts, The expression 'migrated from the territory of India to the territory now Included in Pakistan' seems to have been used in Article 7 of the Constitution in the sense of departure from one country to another with the intention of residence or settlement in the other country. A temporary visit to another country on business or otherwise cannot amount to 'migration.' There is nothing on record to indicate that Izhar Ahmed had accordingly 'migrated' to Pakistan and if anything, the fact that his family continued to reside at Bhopal even during his alleged absence, the fact that his business was carried on and such other facts clearly indicate that Izhar Ahmed had not 'migrated' to Pakistan.
18. The proof of these facts, however, loses its Importance in consideration of this petition in view of the provisions of Section 3, Influx from Pakistan (Control) Act (No. 23 of 1949). Izhar Ahmed is admittedly removed from Bhopal under an order dated 18-8-1932 passed on the strength of an order of the Central Government on 8-2-1949 as found in the Notification No. II (5-E) 49 N. I. in exercise or the powers conferred by Section 7, Influx from Pakistan (Control) Ordinance, 1948 etc. The powers under Section 7 of the Act can be made use of 'without prejudice to the provisions contained in Section 5 of the Act,' This latter section provides for punishment for contravention of the provisions of Section 3 of the said Act which lays down that:
No person shall enter India from any place in Pakistan, whether directly or indirectly, unless-
(a) he is in possession of a permit, or
(b) being a person not domiciled in India or Pakistan, he is in possession of a valid passport as required by the Indian Passport Act, 1920 (No. 34 of 1920), or
(c) he is exempted from the requirement of being in possession of a permit by or in accordance with the rules made under this Act.
In brief under this provision, every person entering India from Pakistan whether a citizen of India or otherwise, is required to be in possession of a permit unless he is exempted. It is not the case of the petitioner that Izhar Ahmed was so exempted and therefore, it is not necessary to enter into that question. It is also not his case that he held any kind of permit.
19. On behalf of the State it is said that Izhar Ahmed went to Pakistan in or about June 1951 and returned to India, without a permit, by about the end of May, 1952 and therefore, whether he is a citizen of India or otherwise, he should have possessed a permit and in the absence of such permit, he has contravened the provisions of Section 3 referred to above and as such was not only liable to be prosecuted and punished under Section 5 of the Act, but was liable to be physically removed from India to Pakistan, under Section 7 of the Act 'ibid'. The question, therefore, is whether Izhar Ahmed went to Pakistan and returned to India. On behalf of the State a translation of an extract of an information received from an independent source and gathered by a secret system for the administration of India is shown to the Court and it clearly indicates that in May or early June 1952 Izhar Ahmed was in West Pakistan and that he was asked to return to India via Dacca in East Pakistan. It has been held that the evidence of the other contents of the above information as also the source from which and the method by which it was received is privileged and thus inadmissible. It must be remembered that movements of such persons, from one country to another, where relations are unfortunately not very cordial at present, are undertaken in secrecy and as such it would be unreasonable to expect direct evidence to prove by such evidence the movements of Izhar Ahmed if any, from one country to another. In my opinion, the evidence prima facie proves the fact of Izhar Ahmed's going over to West Pakistan and his presence there sometime in June 1952.
20. On behalf of the petitioner certain documents and affidavits are filed on record. Prom out of the affidavits none of them is verified from personal knowledge or from information received from a particular person and believed to be true. Only two affidavits viz., the one dated 11-12-1952 by Mst. Wahida Begum and another by one Mohammad Bashir Khan dated 17-12-1952 indicate that Izhar Ahmed did not go to Pakistan and was at Bhopal throughout the alleged period. Both these affidavits are defective and cannot, in my opinion, carry conviction as to the truth of their contents and that of Mst. Wahida Begum is obviously from a highly interested person while it is not known who this Mohammad Bashir Khan is and how far his word can carry conviction and can be relied upon. Curiously enough, the very first affidavit accompanying the petition and sworn to by the petitioner Iqbal Ahmed, on 3-9-52, does not as should be expected, say a word about Izhar Ahmed's not going to Pakistan. The documents viz., the cash-memo dated 24-1-1951, sugar ration-card No. 427/33, the rent-receipt dated 3-5-1951 and the letter dated 14-6-1951, the rent-receipt dated 27-8-51, another ration-card in favour of Izhar Ahmed dated 5-3-1952 and the certified copies of the Electoral Rolls and the Voters' Lists do not contain anything so as to rebut the evidence of Izhar Ahmed's going to Pakistan. At any rate they do not clinch the issue as most of the transactions that these documents evidence, can be made by any other person on behalf of Izhar Ahmed and I am not persuaded to accept that these documents demolish the case of Izhar Ahmed's trip to West Pakistan and return to India.
21. The most important document referred to by the petitioner consists of a report by the Sub-Divisional Magistrate, Bhopal dated 13-12-1952 obtained on an application dated 11-12-1952 which bears no court-fee label as required and it states that:
In the Case, State v. Babu Khan on an offence under Section 457, Indian Penal Code, No. 129 It appeared that Izhar Ahmed son of Amir Ahmed attended the Court as a witness and his deposition was recorded on 26-9-1951.
In further support of this report is filed an affidavit, by one Mohammad Ahmed, dated 17-12-1952, stating that:
The same Izhar Ahmed, whose evidence was recorded in the above criminal case, has been removed to Pakistan.
This Mohammad Ahmed describes himself as an ex-criminal-clerk of the Sub-Divisional Magistrate's Court. This affidavit is again seriously defective in that it does not indicate whether the statement is made on personal knowledge or on information received from a particular person and believed to be true. It also appears that after the case was taken up for hearing, all these attempts were made to somehow or other meet the allegations of the State and this kind of evidence is thrown into serious suspicion by the affidavit dated 17-12-1952 by the Additional District Magistrate, Bhopal, on the best of information and belief gathered from the papers and documents and believed to be true that Iznar Ahmed, who was said to have appeared as a witness in the Court of the Sub-Divisional Magistrate, Bhopal, on 7-9-1951 and 26-9-1951, was the same person. In my opinion, again such evidence from the side of the petitioner, to indicate that Iishar Ahmed was in India throughout the alleged period, is not enough to demolish the independent and disinterested evidence from the side of the State.
22. One more affidavit dated 9-12-1952, by one Devi Narain Kapur, which is equally defective, has been filed and it merely states that
Izhar Ahmed had gone to Bombay in September, 1951 and the deponent had asked him to bring a glass Lemonade Set which he had brought for him.
In my opinion, this statement in the affidavit cannot meet the situation clearly indicating that Izhar Ahmed had not gone to Pakistan, as it is not said that Devinarayan had actually met him.
23. It must appear that action has been taken against Izhar Ahmed under Section 7, Influx from Pakistan (Control) Act (No. 23 of 1949) and therefore a question arises whether the essentials of that section were present in the case to support the action. The question involved, therefore, is whether there could exist a reasonable suspicion that Izhar Ahmed had contravened any provisions of the Act. Section 7 of the Act runs as follows:
Without prejudice to the provisions contained in Section 5, the Central Government may, by general or special order, direct the removal from India of any person who has committed, or against whom a reasonable suspicion exists that he has committed an offence under this Act, and thereupon any officer of Government shall have all reasonable powers necessary to enforce such direction.
It is apparent that under this section it is not necessary that there should be a conclusive proof of the fact of the person's having committed an offence, but it is enough if there is a reasonable suspicion. It need not be pointed out that the material justifying a reasonable suspicion may vary in the degree of evidentiary value with the material required for a conclusive proof of a fact. What may be enough for the former may not be enough for the latter.
24. It is further clear that the authority concerned cannot act arbitrarily. It is not a remote suspicion that must exist. This is postulated by the essential that the suspicion should be reasonable and not merely arbitrary. In order to be reasonable, the authority has to consider, weigh and marshal the material he has before him and then the suspicion may be reached on rational consideration of the material. In doing so, the authority has naturally to weigh the material on considerations of the source, the status, the presence or absence of bias or prejudice of the source from which the material is received or' obtained and gathered and it is only if satisfied on all these considerations that he reaches the suspicion. The question is whether there was material before the authority concerned enough to reach a reasonable suspicion that Izhar Ahmed had contravened the provisions of the Act and had exposed himself to the penalty provided for in the Act. What is required under Section 5 of the Act 'ibid' is conclusive proof of the fact that the person concerned had contravened the provisions of the Act. What is required under Section 7 of the Act, is material enough to reach a suspicion that he had contravened such provisions. It has been shown above in the earlier part of this order that the authority concerned had before him information gleaned from an independent source and received by a system provided for the proper administration of the country. It was, therefore, not unreasonable to reach the suspicion that Izhar Ahmed had contravened the provisions of the Act.
25. The next question for consideration is whether the order was invalid in law and improper. It was urged that the order dated 8-2-1949 of the Central Government was not applicable to Bhopal and could not be acted upon for action under Section 7, Influx from Pakistan (Control) Act (No. 23 of 1949). Examining this question it appears that the first Ordinance on the subject viz., Ordinance No. 17 of 1949 was promulgated by the Governor-General on 18-7-1948 and the second Ordinance was promulgated on 10-11-1948. The State of Bhopal acceded to the Dominion of India by an Instrument dated 14-8-1947 and it was accepted by the Governor General on 16-8-1947. In clause 1 of the said Instrument, a true copy of which is produced on record, the Ruler of Bhopal State declares as below:
I accede to the Dominion of India with the Intent that the Governor-General of India, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession, but subject always to the terms thereof, and for the purposes only Of the Dominion, exercise in relation to the State of Bhopal such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on the 15th day of August 1947.
In clause 3 the Ruler states that:
I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State.
It would appear that in part (B) of the Schedule in sub-el. 2, under the head 'External Affairs' is stated 'Admission into and emigration and expulsion from India etc'.
26. Under Section 2(1), Indian Independence Act, 1947, two dominions were created as from 15-8-1947, which was declared to be the 'appointed day.' The Dominion of India created, under this section, consisted of the territories under the sovereignty of His Majesty which, immediately before the 'appointed day', were included in British India except the territories which under Sub-section (2) of this section, are to be the territories of Pakistan. To this territory was added, under Sub-section (4) of this section the Indian State which acceded to the Indian Dominion. Then under the Indian Provisional Constitution Order, 1947, modifying the Government of India Act, 1935, Section 42 gave power to the Governor-General to promulgate Ordinances in cases of emergency for the peace and good government of the whole of the territory of the Dominion. The Governor-General had thus the power to promulgate the Ordinances referred to above for the whole of the territory of the Indian Dominion including the Bhopal State which had acceded to the Dominion on the subject of 'External affairs,' including, as stated above in part (B) of the Schedule of the Instrument, on the subject of 'Admission into and emigration and expulsion from India etc.' The Central Government then, under Notification No. II(5-E) 49 N. I., passed a general order dated 8-2-1949 under the Ordinance No. 34 of 1948. Then was passed the Influx Prom Pakistan (Control) Act, 1949 and under Section 9(2) of this Act it was provided that;
Notwithstanding such repeal, any rules made, action taken or thing done in the exercise of any power conferred by the Influx from Pakistan (Control) Ordinance, 1948, shall for all purposes be deemed to have been made, taken or done in the exercise of the powers conferred by this Act, as if this Act had commenced on the day such order was made or such action was taken or such thing was done.
It would thus appear that the action taken and the order passed on 8-2-1949 was saved despite the repeal of the previous Ordinance. This state of affairs' continued to subsist till the Influx from Pakistan (Control) Act (No, 23 of 1949) was repealed by the Ordinance No. 7 of 1952 on 15-10-52. The order of the Central Government dated 8-2-49 was, therefore, enforceable in Bhopal State and under Section 7, Influx from Pakistan (Control) Act, on the strength of the above order of the Central Government, an officer of Government could take action under it by a special order of any date till at least the 15-10-1952. The order, on the strength of which Izhar Ahmed was taken into custody, was, therefore, perfectly legal order in this aspect.
27. It was said that if this was so and the Act No. 23 of 1949 was already enforceable in Bhopal State, then it was not necessary to apply the same Act over again by the Merged States (Laws) Act, 1949. The answer to this contention is that till the Bhopal State merged into the Dominion of India for all purposes, it was merely an acceding State only for certain matters as stated in the Instrument of Accession, but since the Agreement dated 30-4-1949 Bhopal State having merged into the Dominion of India and under Notification dated 29-7-1949, No. S. O. 26 providing: for an Order cited as the States Merger (Chief Commissioner's Provinces) Order, 1949, the Bhopal State came to be administered since the 1st of August, 1949 as if it were a Chief Commissioner's Province and it was on this account that the Influx from Pakistan (Control) Act (No. 23 of 1949) was again made applicable and enforceable to such new provinces under the Merged States (Laws) Act.
28. The learned Counsel for the petitioner referred to the case of - Mohammad Zahural Huque v. State AIR 1950 Madh. B. 17 (F) in. support of his contention that the Ordinances Nos. 17 and 34 of 1948 and the order dated 8-2-1949 of the Central Government could not be applicable to Bhopal. The mere consideration of the relevant dates in that case and their comparison with the dates obtained in this case on hand, is in my opinion, alone sufficient to point out that the facts and the decision based on them in that case are clearly distinguishable from those in the case on hand. In that case the petitioner came to India on 4-9-1948 with a permit for six weeks and he did not leave within that period and was therefore, arrested on 5-11-1948 for contravention of Section 3 of the Act. It was held that
the Instrument of Accession dated 19-7-1948 to the Dominion of India was accented only on 13-9-48 i.e. after the petitioner came to India and published in the Gazette on 30-10-1948 and therefore under Section 6(1)(a), Government of India. Act either the Governor-General or the Dominion Legislature could make laws only on matters in List I, and List III of the Sen. No. VII on which the Dominion Legislature could make laws for Madhya Bharat. Therefore only the Dominion Legislature could make such laws and not the Governor-General under Section 42, Government of India Act and the latter could not promulgate an Ordinance in the State.
It was on this account that it was held that the Ordinance No. 17 of 1948 had not the force of law.
29. It was then said that the original order, under which Izhar Ahmed was taken into custody, was not produced and therefore every adverse inference should be drawn against its correctness and validity. Whatever inference was, however, possible, the controversy has been set at rest by the production of the original order, though at a very late stage in the proceedings. There is no doubt that it is incumbent, on the part of the State, to produce the order in original at the earliest stage of the proceedings in connection with the action and this Court has power to refuse to consider the mere copy of the main order for failure to produce the original, but the learned Government Advocate assured this Court that the original order would be produced at once and produced it, as stated above, at a later stage. It is expected that the Gevernment would take this as a caution in the matter of the powers of this Court to refuse to examine the original order produced at a later stage and draw an adverse inference as to the validity and propriety of the order and question even the bona fides of the action taken.
30. Turning to the merits of the order, under which Izhar Ahmed was taken into custody, it consists of an order dated 18-8-1952 from the Home Secretariat, Bhopal, addressed to the Inspector General of Police by reference to his notes on the subject of physical removal, under Section 7, Influx from Pakistan (Control) Act (No. 23 of 1949), directing him to physically remove to Pakistan under Section 7 of the Act, some persons including Izhar Ahmed. It is signed by one V. S. Borgaonkar for the Home Secretary, Bhopal.
31. It is conceded on behalf of the State that the order is not happily worded and is not in a legal proper form. In my opinion, however, it contains all the essentials of a valid order, stating the powers under which the action is taken, by whom it is taken and against whom it is taken. It is not for this Court to lay down the form or the wording of this kind, but it is the duty of this Court to examine if the conditions essential for its validity are present in the order before it and if it carries out the intention of the officer concerned. It can be said that the order only substantially satisfies the essentials, but it cannot be held to be invalid merely on the ground that it is not in proper form of an order.
32. It was faintly suggested that the order, having been signed by one V. S. Borgaonkar for the Home Secretary and it being not known who this gentleman is, should be held invalid and inoperative. In this connection the State has filed copies of certain notes that passed between the Home Secretary and the Chief Minister of Bhopal on behalf of the Government of the State. It is made clear from these documents that the Chief Minister applied his mind to the case arid accepted that a reasonable suspicion, as required under Section 7 of the Act No. 23 of 1949, existed against Izhar Ahmed and that the said Minister ordered his physical removal. It is apparent that V. S. Borgaonkar, who is reported to be an Assistant Secretary in the Hemp Department, only formally signed the order for the Home Secretary who acted on behalf of the above Minister for the Government of Bhopal. I cannot but add here that all this grievance and discussion could have been avoided and the time of this Court and of all others concerned could have been saved, if the original order had been produced at the earliest stage in the proceedings and had been properly worded in a legal form and signed by an officer indicating his designation and for whom he was acting, either for himself or for any other authority. In the end I find that the order dated 18-8-1952 was not invalid in law.
33. The next question for consideration is whether Section 7, Influx from Pakistan (Control) Act (No. 23 of 1949) infringes the fundamental rights under the Constitution or is it saved as a reasonable restriction. This question came before the different High Courts in different aspects. In every case, however, the person affected was either prosecuted under Section 5 of the Act or had an opportunity to meet the action contemplated affording him an opportunity to have recourse to the Court. It was not so in this case. In the Bombay High Court the matter was dealt with in the case of - State v. Noor Mohomed Ali Mohemed, Cri. Appln. No. 706 of 1951 (G). Slightly different matter, but mainly concerning Section 7 of the Act and the rules made thereunder, came before the Allahabad High Court as reported in : AIR1952All257 . Such question again had come before the Judicial Commissioner's Court at Kutch in - Mandhara Jakab v. Kutch Govt. AIR 1951 Kutch 38 (H). Three cases also came before the Nagpur High Court as reported in - Mohammad Ibrahim v. High Commr. for India in Pakistan AIR 1951 Nag 38 (I); - Atau Raheman v. State of Madhya Pradesh AIR 1951 Nag 43 (J) and - Mohammad Hanif v. State of Madhya Pradesh AIR 1951 Nag 185 (K).
34. While considering the question of the constitutional nature of the section referred to above, it must be remembered that the law in respect of the influx from Pakistan affects only infinitesimal minority of persons and was made only because of the existence of an emergency and after allowing sufficient opportunity for free movements of persons from and to the two dominions and making all other considerations in view of the intensity of the feelings that arose before and after the creation of the two dominions. Even after the Ordinance No. 17 of 1948 sufficient scope for free movements between the two countries was allowed and it was only because of the continuance of the emergency that the Act No. 23 of 1949 was passed. It is in the light of these conditions prevailing in the country that the provisions of the Act, are in my opinion, to be put to the touch-stone as now laid down under Article 13 of the Constitution.
35. The grievance of the petitioner is that Izhar Ahmed's fundamental rights under Article 19(1)(d) and (e) are infringed while on behalf of the State it is urged that this Act and the provisions thereof fell within the purview of reasonable restriction under Clause 5 of the said Article.
36. Reasonableness of a restriction can be examined from two aspects viz., substantive and procedural part of the provision i.e. what it restricts and how it restricts. As pointed out in the Bombay case 'ibid' the entry of a person, without a permit, from Pakistan into India, is alone restricted. Then again sufficient means and machinery are provided for obtaining a permit and thus movements and continuance in India of only those, who entered into India without a valid permit 'are restricted and are liable to a challenge and action by the State. Substantively, therefore, the provisions of Section 7 of the Act are applicable to a very minute number of persons who, whether citizens of India or otherwise, have not complied with the provisions of Section 3 of the said Act.
37. It is not said that the whole Act is void or unconstitutional. This is possibly because it is well known that all civilized countries in the world have their Pass-port Laws. I would here only refer to the discussion in para. 5 of the order in the Bombay Case 'ibid' and a portion can be quoted with advantage:
It is rather significant to note that even under the Passport Act under Section 5, power is given to Government to remove any person from British India who contravenes any rule made under a. a or course, it may be that if Section 7 is void, 8. 5 of the Passport Act may equally be void. The only reason for drawing attention to Section 5 is that Section 7 contains a provision of law which is not something exceptional or a novel encroachment upon the liberty of the subject. Therefore it seems that just as Section 5 of the Passport Act was intended as a consequential piece of legislation to carry out the purposes of the Passport Act, equally so Section 7, Influx from Pakistan Act was intended as a consequential piece of legislation to carry out the provisions of the Influx from Pakistan Act. If there is nothing in the Constitution, as we think there is not, to prevent the legislature from legislating about conditions on which a person can enter India, there seems to be no reason why consequential legislation to give effect to that should be contrary to the provisions of the Constitution or should affect the fundamental rights guaranteed to the citizen, Logically it is difficult to distinguish between the right of the Legislature to prevent a person who has entered India contrary to the Passport or Permit Regulations.
The learned Chief Justice, after considering the various decisions of the High Courts, repelled the contention that Section 7 of the Act was void).
38. It would further appear that if the provision preventing a person's entry in India, without a permit, cannot be castigated as unreasonable, can a provision of law to meet the situation created by such entry, be condemned or impugned by a person claiming the rights under Article 19(1)(d) and (e)? In my opinion, he can make no such claim as he exposes himself to prosecution under Section 5 of the Act for contravention of the provisions of Section 3 of the Act. If this is the position of the citizen, as curtailed by the above provisions and created by his own actions, then, in my opinion, he cannot claim the rights under Article 19(1)(d) and (e) because his movements and residential rights are already under a cloud and not free from doubt.
39. The provisions of Section 7 of the Act are intended and enforced only as a remedy for the mischief or wrong already committed by the person, whether a citizen or otherwise. They only provide for restoring status-quo merely as a consequence of his own wrong. In this view then, in my opinion, it is doubtful if the citizen can question a provision of law enforceable only as a consequence. It would be proper here again to quote the observations of Chagla C. J., in the Bombay Case 'ibid', that:
But if once it is conceded that Section 3 is valid and restrictions can be placed upon the entry of the citizen into India, then as pointed out. it must follow as a logical corollary that the Legislature would be entitled to make provisions in law in order to carry out the provisions contained in section.
40. In this aspect then Section 7 of the Act cannot be considered void but would fall within the purview of a 'reasonable restriction'. A similar contention was made before the learned Judicial Commissioner at Kutch in - 'AIR 1951 Kutch 38 (H)' 'ibid' and it was held that:
Article 19 (1) (d) is subject to Article 19(5). The Influx from West Pakistan (Control) Act (1949) does not absolutely bar the right of freedom of movement. It merely imposes a restriction on that right which is both reasonable and in the interest of the public generally consequent upon the partition of the country. The provisions of the Act are, therefore, not inconsistent with the rights under Article 19(1)(d).
The Nagpur decisions referred to above take a similar view, though in my opinion, they are liable to be distinguished on facts.
41. Reference is then made to the decision of the Allahabad High Court in : AIR1951All257 'ibid'. In that case the person had returned with a permit and thus complied with the provisions of Section 3, but had continued in India in breach of certain conditions regarding the period of the stay permitted. What was found was that as a citizen of India he had a right to reside in India in spite of the expiry of the period of his stay permitted. Raghubar Dayal J. in para. 34 (a) observed that:
A law allowing the removal from the territory of India of any citizen would be in contravention of Article 19(1)(d) and (e) of the Constitution and will therefore be void in view of Article 13(1) of the Constitution.
In the next para, he observed that;
I agree that the condition to require a permit on entering the territory of India is a reasonable restriction on such rights. But I am not satisfied that the condition that after entering the territory of India he has to move in a certain manner and should leave the country after the period mentioned in the permit can be said to be a reasonable restriction on the exercise of the aforesaid rights of the citizen. I consider these conditions an infringement of the rights given to a citizen in Article 19(1)(d), (e) as his free movement is controlled and he is deprived of his right to settle anywhere.
42. This observation explains the mind of the Judge in so far as the question for the decision in the case on hand is concerned. In the next paragraph (35(a)) the same Judge observes that:
The necessity of having a check on the entry of a person from Pakistan can justify the entrant's having a permit but does not justify the imposition of the other conditions after his entry in the country.
It would thus appear that what the learned Judge was considering was not whether the condition requiring a permit and the consequence of its absence was, taut the condition of restricting his movements or residence after the permit had expired i.e. Rule 19 of the Rules made under the Act. In the same case Bhargava J. in para. 77 dealt with Rule 19 of the Permit System Rules and observed that:
Rule 19 of the Permit System Rules, 1949 and Section 7 of the Act and the order of the Central Government issued thereunder, in so far as they are applicable to the citizens of India and are inconsistent with the fundamental rights guaranteed to them under Article 19(1)(d) and (e) of the Constitution have, after the commencement of the Constitution, became void in view of the provisions contained in Article 19(1) of the Constitution.
It was Rule 19 of the Permit System Rules that . was mainly being considered by the learned Judges in that case and as such it is liable to be distinguished from the case on hand.
43. Looking at the provision (S. 7 of the Act) from the procedural point of view It was urged that it permits an officer of Government to remove a citizen without notice, without giving him an opportunity to cry out his grievance in a Court of law and thus a perfectly innocent citizen may be whisked away out of India, thus infringing Jus fundamental rights above and he will have no remedy and therefore this provision was void. There is nothing in Section 7 of the Act or in any other provision of the Act preventing a person so arrested from at least giving an application in writing to the very officer arresting him, for a writ as provided under Article 226 of the Constitution. The writs are in the nature of prerogative writs and as such the Court is bound to take notice of such information in the matter of the infringement of his rights and is bound by law to protect the fundamental rights of a citizen and to pass suitable orders and stay the removal. Then again an officer of Government is a responsible person and is ordinarily expected to know that he could not lay his hands on any person unless he is armed with a reasonable suspicion, as required, and supported by material enough to entertain it, It is difficult to come across a case of this kind except in imagination and it is not, in my opinion, necessary to pursue this aspect of the provision. In the end I find that Section 7, Influx from Pakistan (Control) Act, 1949 is not void under the Constitution.
44. The next question is whether the order violates Articles 21 and 22 of the Constitution. In the view taken above, Article 21 is not applicable. The person was arrested in enforcement of the direction in the order and I would only refer to the observations in the Bombay Case 'ibid' in para. 5 viz.:
It is doubtful whether removing a person from India would constitute deprivation of his personal liberty. It is possible to take the view that the deprivation of personal liberty referred to in Article 21 refers to a total deprivation such as is brought about either by imprisonment or by preventive detention. But even if Article 21 were to apply and if the view was possible that when a citizen is prevented from living in his own country he is deprived of his personal liberty, even so the deprivation may be considered to be according to the procedure established by law because the deprivation is not by an executive flat but it is by an order of the executive which could be supported by law passed by a competent Legislature.
45. In the Allahabad case 'ibid' not much notice of this contention was taken and Bhargava J. only observed in para. 75 (a) that:
The arrest and subsequent detention in jail was for the purpose of his removal from India under Section 7 of the Act No. 23 of 1949 and in pursuance of the order of the Central Government made thereunder.
No question of violation of Article 22 of the Constitution also arises in view of the fact that Izhar Ahmed was informed of the orders of the Government at the time of his arrest. This, in my opinion, was substantial compliance with the provisions of Article 22 of the Constitution.
46. For all these reasons it is held that the petitioner is not entitled to any of the writs or orders or as prayed for and the petition is dismissed.