R.S.Narula - (1.) Hukam Chand, petitioner has submitted this application under section 491 of the Code of Criminal Procedure on the allegation that he has been illegally and improperly detained in public custody by respondent No. 3, the Superintendent, Central Jail, Tehar, New Delhi under the orders of respondent No. 1, the District Magistrate, Delhi acting on behalf of the Administration of the Union Territory of Delhi and praying that he be ordered to be set at liberty. The order of the District Magistrate, Delhi, dated 20th October, 1965 by which the petitioner has been detained under rule 30 of the Defence of India Rules, 1962 is in the following terms:- "Where as I, S. G. Bose Mullick, District Magistrate, Delhi, am satisfied from information received that it is necessary to detain Shri Hukam Chand alias Hukarn Chand Seth alias Hukam Chand Jain alias H. C. Seth son of Shri Amar Nath, resident of 4302, Akbar Manzil Gali Khani Khana, Urdu Bazar, P. S. Jama Masjid, Delhi with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the maintenance of public order, and the maintenance of peaceful conditions in Delhi. Now, therefore, in exercise of the powers conferred upon me under Rule 30 of the Defence of India Rules 1962, read with Order No. F. 3(2) 62-S. C. C. dated 20th November, 1932, issued by the Adminstiator of the Union Territory of Delhi, I do hereby direct that the said Shri Hukam Chand alias Hukam Chand Seth alias Hukam Chand Jain alias H. C. Seth be "detained in the Central Tail, Tehar, New Delhi in the custody of the Superintendent of the said jail. Given under my hand and seal of this court. This 20th day of October, 1965,"
(2.) In pursuance of the above mentioned order the petitioner was arrested on October 20th, 1965. His case was reviewed by the Administrator of the Union Territory (Chief Commissioner, Delhi) on 21st October, 1965 and his detention was confirmed. Information about the confirmation of the detention order was communicated to the petitioner by the District Magistrate, Delhi on 27th October, 1965. Though various grounds had been taken up in the petition forwarded by the petitioner from the Jail Shri D. Latifi, Advocate, who appeared for him he. fore me expressly stated that he was not pressing the same. He urged only the following four grounds against the petitioner's detention;- (i) that the notifications of the President of India dated 3rd and 11th November, 1962 under Article 359 of the Constitution do not save detentions made under the Defence of India Rules after the cesser operation of the Defence of India Ordinance, 1962 i. e. after December 12,1962; (ii) even if the above-said notification under Article 359 of the Constitution can be set up as a defence to the normal fundamental rights of the petitioner under Articles 21 and 22 of the Constitution those notifications do not save detentions made under that part of rule of the Defence of India Rules which was added thereto on December 28, 1962 after the repeal of the Defence of India Ordinance by the Defence of India Act ; (iii) that the impugned order of detention shows that the District Magistrate of Delhi had not in fact applied his mind before passing the impugned order ; and (iv) that the detention of the petitioner was improper as it had been sought to be supported in the Written statement filed in reply to the writ petition on grounds which are not identical in all respects with those given in the order of detention
(3.) In order to decide the first two questions raised by the learned counsel for the petitioner, both of which are inter-connected, certain statutory provisions and rules may first be noticed. Part XVIIT of the Constitution (Articles 352 to 359) deals with the emergency provisions. The declaration of emergency is left by Article 359(1) to the President of India. It is not disputed that emergency under that Article was declared in this country on October 26, 1962 immediately on the out-break of hostilities with China. Article 359(1) provides that where aproclamation of emergency is in operation the President may by order declare that the right to move any Court for the enforcement of any of the fundamental rights (conferred by Part III of the Constitution) as may he mentioned in the order shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order. In exercise of the powers conferred by Article 359(1) of the Constitution the President of India issued a notification on the 3rd of November, 1962 providing that the right of any person to move any Court for the enforcement of the fundamental rights guaranteed by Articles 21 and 22 of the Constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of Article 352 of the Constitution on 26th October, "1962 remained in force if such person has been deprived of any such rights "under the Defence of India Ordinance, 1962 (4 of 1962) or any rule or order made thereunder.".;