Yashoda Nandan, J. - (1.) This is a petition by Mohd. Qadar Khan Under Sec. 491 of the Code of Criminal Procedure for directions of the nature of habeas corpus. The petition is accompanied by an affidavit sworn to by Mirza Khursheed Beg, uncle -in -law of the Petitioner. It is stated in the affidavit that the Petitioner is a citizen of India, has his permanent domicile in this country and his parents also are citizens of India. According to the affidavit, the Petitioner was also a citizen of this country at the commencement of the Constitution and went to Pakistan in 1952 for a short visit from where he returned back in 1953 on the basis of a passport issued by the authorities in Pakistan. After his return to India in 1953, it is asserted, he obtained service of the State Railways in 1957 and has been so employed without any break since then. In paragraph 5 of the affidavit, it is asserted that the Petitioner neither gave up his Indian citizenship nor acquired citizenship of Pakistan. It is further asserted that the question of the Petitioner's citizenship has never been the subject matter of proceedings Under Sec. 9 of the Citizenship Act, 1955. Admittedly on the 5th December, 1971, the Petitioner was arrested for an alleged offence Under Sec. 14 of the Foreigners Act. He was by an order dated 16th December, 1971, granted bail. According to the Petitioner, on the 30th December, 1971, he was re -arrested by an order of the Superintendent of Police, Gorakhpur, a second time during the period of his release on bail.
(2.) A counter affidavit has been filed on behalf of the opposite -parties which has been sworn by Harihar Bux Singh, a Sub -Inspector of the Local Intelligence Unit, Gorakhpur. According to it, the Petitioner migrated to Pakistan on the 20th June, 1952 and came to India at the end of the year, 1953 on an Indian Visa dated 14th July, 1953, valid upto 30th July, 1954 and a passport issued by the Pakistan authorities dated 1st June, 1953, describing himself as Mohammad Qadar Khan and declaring himself as a Pakistani national. It is asserted in the counter -affidavit that after his arrival in India, the Petitioner, neither reported his arrival to the 'Civil Authorities' nor obtained any residential permit as required by para 7 (2) of the Foreigners Order, 1948, but went underground. It is stated that the Petitioner's name was consequently brought on the list of untraced Pakistani nationals of district Gorakhpur. It is admitted that the Petitioner obtained service with the North Eastern Railways but it is stated that he managed to do so by wrongly describing himself as Mohammad Qadir Khan and ultimately on receipt of information about his presence at Gorakhpur, he was taken in custody Under Sec. 14 of the Foreigners Act. It is admitted that by an order dated 16th December, 1971, passed by the learned Sessions Judge, Gorakhpur, the Petitioner was released on bail on the 17th December, 1971. In paragraph 6 of the counter affidavit, it is disclosed that when the recent war broke out between India and Pakistan, the Government advised the Superintendent of Police to take action against the Petitioner under the Foreigners (Internment) Order, 1962 and consequently on the 29th December, 1971, the Superintendent of Police, Gorakhpur, in his capacity as 'Civil Authority' constituted under the Foreigners (Internment) Order, 1962 -hereinafter referred to as the 1962 Order - -issued an order for his arrest and detention under paragraphs 5/8 thereof. On the basis of that order, the Petitioner was arrested on the 30th December, 1971 and lodged in the District Jail, Gorakhpur.
(3.) It thus transpires that the Petitioner is in fact being detained on the basis of an order issued by the Civil Authority under the 1962 Order. We have consequently to decide as to whether the Petitioner's detention under the 1962 Order is legally justified or not.;