- (1.) IN these petitions the validity of certain proclamations issued by the Chief metropolitan Magistrate, Madras, under S. 82 (1) of the Criminal Procedure Code read with S. 7 (1) (c) of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974, on 16-1-1975, is challenged mainly on the ground that the detention orders passed against the petitioners by the State government under S. 3 of the latter Act which formed the basis for the said impugned proclamations are invalid. These petitions originally came up for hearing before Krishnaswamy Reddy, J. , who, after hearing the arguments for some time referred them to a Division Bench, as he felt that the petitions involve constitutional points of considerable public importance. These petitions were then heard by a Division Bench consisting of Paul and Varadarajan, JJ. On account of a difference of opinion between them, they were posted before natarajan J. as per S. 392 Crl. P. C. Before him it was urged by the State for the first time, that the above petitions which indirectly challenge the validity of the detention orders passed against the petitioner cannot be maintained in view of the decision of the Supreme Court in A. D. M. Jabalpur v. S. Shukla, The learned Judge felt that the said question deserves consideration by a Full Bench. He, therefore, referred all the petitions to a Full bench, and accordingly they have come before us.
(2.) K. T. M. S. Abdul Khadar, the petitioner in Crl. M. P. 445 of 1975, A. M. Ahmed yaseen, the petitioner in Crl. M. P. 449 of 1975 and B. S. A. Rahman the petitioner in Crl. M. P. 449 of 1975, are alleged to have been smuggling or dealing with smuggled goods. This led the State Government to reasonably apprehend that unless they are detained forthwith, they will continue to indulge in similar activities which may prove a hazard to the safety and security of the country. Hence detention orders were originally passed against each of the petitioner under S. 3 (1) (c) of the Maintenance of Internal Security (Amendment) Ordinance 1974. As the petitioners in each of these petitions left the country even before the passing of the detention orders and continued to live abroad, the warrant of arrest against them could not be executed. Therefore, on a report made by the State Government, the Chief Metropolitan magistrate, Madras issued proclamations under S. 82 (1) Crl. P. C. , hereinafter referred to as the Code, on 2-12-1974. In the meanwhile the Conservation of foreign Exchange and Prevention of Smuggling Activities Act 1974, hereinafter referred to as the Act, came into force and fresh orders of detention under the said Act were passed against each of the petitioners on 19-12-1974. As before, the warrants of arrest following the detention orders could not be executed due to the continued absence of the petitioners abroad, and therefore, at the instance of the State Government, the Chief Metropolitan Magistrate, Madras, had issued fresh proclamation under S. 7 (1) (c) of the Act, read with S. 82 (1) of the Code on 16-1-1975.
(3.) BEFORE the Division Bench, the principal point urged by the petitioners was that as the Act has no extra-territorial application, the State Government has no power under the Act to pass orders of detention against persons who at the time when the orders were made, were not within India but were outside its territorial limits, that the orders of detention passed against them being illegal, the State was not entitled to invoke S. 7 (1) (c) of the Act, and S. 82 (1) of the code for issuing the proclamations in question to compel their attendance in court and, that therefore,, the impugned proclamations are liable to be quashed. Paul, J. rejected the said contention holding-- "there is noting in the provisions of the Act which would invalidate a detention order passed in respect of a person who is an Indian citizen and who is a resident of India and owes allegiance to the Indian government, merely because that person was at the time of the passing of the order, not within the territorial jurisdiction of India. " varadarajan, J. took a different view and held that-"on a strict construction of the provisions of the Act it must be held that it has not been made applicable to the citizens of India outside india. " It was on account of this difference of opinion the petitions were posted before a third Judge, Natarajan J. Thus the substantial question for consideration before us is as to whether the detention order under S. 3 of the Act could be passed in respect of persons outside India. As already stated, Paul J. has held that detention orders can be passed against any person outside India provided he is an India citizen while Varadarajan J. is of the view that detention orders can not be made in respect of persons outside. India even if they are Indian citizens. Since one of petitioners before us is a foreign citizen, we have to necessarily deal with the validity of the detention orders passed against Indian citizens as also foreign Nationals who were outside India at the time when they were passed.;