SAKEENA Vs. STATE OF RAJASTHAN
LAWS(RAJ)-1967-7-8
HIGH COURT OF RAJASTHAN
Decided on July 27,1967

SAKEENA Appellant
VERSUS
STATE OF RAJASTHAN Respondents

JUDGEMENT

BHANDARI, J. - (1.) THIS is a habeas-corpus petition purporting to have been filed on behalf of Mst. Sakeena, though this petition is not signed by her, nor was the counsel who presented this petition empowered to present it on behalf of Mst. Sakeena. Along with this petition, affidavit of Mst. Lachman has been filed stating that she was the daughter of Mst. Sakeena and that the paras Nos. 1 to 5 of the petition were correct. The counsel appearing in this case was empowered to appear by a Vakalatnama by Mst. Lachmman. The petition is not properly drafted, but in view of the fact that it is a habeas-corpus petition, we have thought it proper not to reject this petition on this ground, but to treat it as a habeas-corpus petition on behalf of Mst. Lachmman for release of her mother Mst. Sakeena from the illegal detention by the State of Rajasthan.
(2.) THE case for release of Mst. Sakeena is based on the ground that she was an Indian national and was an Indian citizen. She was married to an Indian and she never went or migrated to Pakistan. THE State of Rajasthan wanted to deport her to Pakistan. THEreupon, she filed writ petition No. 116 of 1965, and obtained a stay order against deportation. She has been detained by the State of Rajasthan and it has been prayed in the petition that the detention order be set aside The reply of the State of Rajasthan is that the petitioner Mst. Sakeena is not an Indian national. She migrated to Pakistan in the year 1947, and remained there for a considerable period and returned to India on a Pakistani passport and visa on the 6th of June, 1963, and thereafter she was illegally staying here. With regard to her detention, it has been mentioned that she was detained under the order of the State Government bearing No. F12 (7) HF/66 dated 26-4-1966, passed u/sec. 3 (2) (g) of the Foreigners Act, 1946. The affidavit of Shri H. S. Rawat, Dy. Secretary, to the Government in the Home Department has also been filed and the order of the State Government referred to above has been produced. Another affidavit of Shri S. N. Bhargava, Superintendent of Police (C. I. D) Security Branch, Jaipur, has been filed. The material part of the affidavit is that the petitioner was a widow of Zahiruddin and she migrated to Pakistan in the year 1947/48 and acquired nationality of Pakistan, and that these facts were borne out from the enquiry report of C. I. Gajendra Pal, C. I. D. , Zone Office, Jaipur dated January 11, 1965. It is further stated in the affidavit that the petitioner obtained Pakistani passport for coming to India. She also obtained visa from the High Commissioner for India in Pakistan at Karachi and showed there her date of migration from India as 1949. It is further stated that on the strength of the aforesaid travel documents, i. e. , Pakistani passport bearing No. 117499 dated May 11, 1953 and visa No. 7486 dated May 12, 1953, she came to India on June 6, 1953, and thereafter has stealthily and illegally remained in India and did not go back to Pakistan. It was further stated in the affidavit that the petitioner was deported to Pakistan on March 2, 1965, under his order dated February 27, 1965, but she stealthily crossed the border and entered India without valid and proper document and began to live secretly at Jaipur. She was again deported to Pakistan on March 21, 1965, but she again illegally came to India. Then she was taken under detention on April 26, 1966, under the detention order. The order of detention has been passed in exercise of the powers under clause (g) of sub-section 2 of sec. 3 of the Foreigners Act, 1946, read with the Government of India Notification No. F. 1/45/63-Intt. dated December 31, 1964. In this case it is to be examined whether this detention order is valid. But before proceeding to examine this matter, it is necessary to take notice of another contention. Learned counsel for the petitioner has urged that in another writ petition No. 116 of 1965, Mst. Sakeena vs. The State of Rajasthan and others, the petitioner had prayed that the respondent No. 1 in that case, the State of Rajasthan be directed not to deport the petitioner to Pakistan. On January 31, counsel for the petitioner in that case stated that his client was prepared to approach the Central Government for obtaining an order as to her being an Indian national under sec. 9 of the Indian Citizenship Act, 1955, within 15 days if the Government Advocate was prepared to undertake that the petitioner would not be deported from India till the decision of the matter by the Central Government. Learned Government Advocate submitted that if the petitioner agreed to present an application to the Central Government within 15 days, and satisfied the respondent of her having made such an application, the respondent would not be deporting the petitioner till the matter was decided by the Central Government. On this statement of the learned Government Advocate the petitioner did not press her writ petition, and the same was dismissed. It is said that thereafter, Mst. Sakeena had made an application to the Central Government which has not been decided. It is contended by the learned counsel that in such a situation this Court has no jurisdiction to determine whether Mst. Sakeena was an Indian national or not. We may, however, point out that there is no dispute that the writ petition No. 116 of 1965 was not decided on merits and it was merely dismissed as withdrawn. Moreover, that writ petition was for directing the respondent not to deport Mst. Sakeena, while in the present case we have to examine whether Mst. Sakeena had been illegally detained under detention order dated April 26, 1966. On the basis of the affidavits filed by the parties we take it that Mst. Sakeena migrated to Pakistan in the year 1947/48 and thereafter came to India having obtained Pakistani passport and visa from the High Commissioner for India in Pakistan at Karachi. There is the affidavit of Shri S. N. Bhargava, Superintendent of Police ( C. I. D.) Security Branch, Jaipur. There is no counter affidavit filed by Mst. Sakeena. The only affidavit is of Mst. Lachmman, which is to the effect that Mst. Sakeena never went to Pakistan. There is no reason why we should not rely on the affidavit of Shri S. N. Bhargava. Sec. 9 of the Citizenship Act, 1955, runs as follows: 9. Termination of citizenship (1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January, 1950, and the commencement of this Act voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, ceases to be a citizen of India: Provided that nothing in this sub-section shall apply to a citizen of India, who during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs. (2) If any question arises as to whether when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf. " Sub-sec. 2 of that section only applies to a person who was a citizen of India before 26th January, 1950, and has by naturalisation, registration or otherwise voluntarily acquired or has at any time between January 26, 1950, and the commencement of the Act voluntarily acquired the citizenship of another country, and not to a person who was not a citizen of India before January 26, 1950. This is the interpretation of sec. 9 (2) of the Act as pointed out by their Lordships of the Supreme Court in Akbar Khan Alam Khan vs. Union of India (1) In this view of the matter, the contention of the learned counsel for the petitioner that this court has no jurisdiction to decide the question of citizenship of Mst. Sakeena has no force as she had migrated to Pakistan in 1947-48 and became a Pakistani national. The State of Rajasthan has detained the petitioner under detention order dated April 26, 1966. That order, as mentioned therein, has been passed in exercise of the powers under clause (g) of sub-sec. (2) of sec. 3 of the Foreigners Act. 1946. The relevant part of sec. 3 of that section runs as follows "powers to make orders - (1) The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class of description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into (India), or their departure therefrom or their presence or continued presence therein. (2) In particular and without prejudice to the generality of the foregoing powers, orders made under this section may provide that the foreigner: (g) Shall be arrested and detained or confined and may make provision for any matter which is to be or may be prescribed and for such incidental and supplementary matters as may, in the opinion of the Central Government, be expedient or necessary for giving effect to this Act. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Sec. 3 empowered the Central Government to exercise legislative power and to make subordinate legislation by making provision by an order for the purposes mentioned in S. 3. But at the same time S. 3 is wide enough as empowering the Central Government to pass on executive order in appropriate case. In this case there is an order with regard to a particular person. There can be no doubt the Central Government could make such an executive order. The question is whether the Rajasthan Government could have passed such an order. Under clause (1) of Art. 258 of the Constitution, the President with the consent of the Government of a State may entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive powers of the Union extends. The President entrusted the functions of the Central Government under clause (g) of sub-sec. (2) of sec. 3 to the State of Rajasthan by Notification No. F. 1/45/63 Intt. dated the 31st December, 1964, which runs follows: "gsr 48 - -In exercise of the powers confer- namely-red by cl. (1) Art. 258 of the Constitution and of all other powers enabling him in this behalf, the President, with the consent of the State Government concerned, hereby entrusts to the Government of each of the States of Andhra Pradesh, Assam, Bihar, Jammu and Kashmir, Kerala, Gujrat, Maharastra. Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, West Bengal and Nagaland, the functions of the Central Government under cl. (g) of sub-sec. (2) of sec. 3, and sub-secs. (1) and (4) of sec. 4 of the Foreigners Act, 1946 (31 of 1946), subject to the following conditions, namely - (a) that the functions so entrusted shall be exercised in respect of persons to whom Chapter II of the Foreigners (Internment) Order, 1962, applies ; (b) that in the exercise of such functions the said State Government shall comply with such general or special directions as the Central Government may from time to time issue ; and (c) 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. " Thus, the State of Rajasthan could pass an order under clause (b) of sub-sec. 2 of sec. 3 in respect of a person to whom Chapter II of the Foreigners Internment Order, 1962, applied. Smt. Sakeena became a Pakistani national on her migration in the year 1947-48 and the state Government could pass an order of her detention. In this view of the matter, we find that Mst. Sakeena had not been illegally detained by the State of Rajasthan and she cannot be ordered to be released by this court. The application, therefore, fails, and we dismiss it with costs. . ;


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