D.P. Uniyal, J. - (1.) This petition for habeas corpus under Section 491 Cr.P.C. has been filed by one Mukhtar Ahmad challenging an order No. 3597 T.Y. A/VIII-D-292 PT/55 Lucknow, dated June 19, 1964 made by the State Government in exercise of the powers conferred by Clauses, (a), (b) and (c) of Sub-section (2) of Section 3 of the Foreigners Act, 1946 (No. XXXI of 1946) as amended by the Foreigners Laws (Amendment) Act, 1957 (II of 1957), directing the deportation of the petitioner from India on the ground that he was a Pakistani national and, as such, a foreigner. In pursuance of the order aforesaid the petitioner was arrested on 23.6.1964 and was sent to the Pakistan border for deportation under police escort. He could not be sent across the border without a passport as the Pakistani authorities had tightly sealed the border and did not allow anybody to cross the same without travel documents. The petitioner was being kept in detention ever since and it was claimed that his detention in police custody was unlawful, firstly because he was not a 'foreigner', and secondly because the Central Government had not determined the question of his citizenship in accordance with Section 9(2) of the Indian Citizenship Act.
(2.) The facts giving rise to the present petition may be stated briefly as follows. The petitioner was born on 16.9.1934 of parents domiciled in India. Some time in 1948, when he was still a minor, he left India and went to Pakistan. On 2.12.1954 he applied for a Pakistani passport and declared himself to be a Pakistani national in his application for visa dated 22.12.1954. At his request the visa was extended up to 20.10.1955. He, however, did not leave India after the expiry of the extended period. He was then served with a notice dated 31.7.1957 requiring him to leave India within one month. He did not do so. Instead he filed a petition under Article 226 of the Constitution praying for the issue of a writ of mandamus directing the State of U.P. and its officers not to arrest, prosecute or deport him. The petition was dismissed by Chaturvedi, J., on 24.9.1957 on the ground that it was open to the petitioner to apply to the Central Government to determine his nationality in accordance with Sub-section (2) of Section 9 of the Citizenship Act. He was then prosecuted under Section 14 of the Foreigners Act for contravening Para 7 of the Foreigners Order 1946 but was acquitted on appeal by the learned Sessions Judge of Allahabad on the finding that he was not a foreigner within the meaning of Section 2(a) of the Foreigners Act (XXXI of 1946) as it stood before amendment. The order of acquittal passed by the Sessions Judge was upheld by the High Court on 8.9.1960 and the State Appeal was dismissed.
(3.) It appears that the petitioner had meanwhile addressed an application to the Central Government under Section 9(2) of the Citizenship Act, 1955 praying that his prosecution under Section 14 of the Foreigners Act be withdrawn and that he be declared as an Indian citizen. In paragraph 9 of the said application it was stated that he had previously moved an application under Section 5(1) of the Citizenship Act for registration as a citizen of India but he had received no intimation of the decision of the government thereon. It appears that by an order dated 31.12.1958 the Government of India rejected the application of the petitioner for grant of permanent re-settlement in India and the decision of Central Government was communicated to the petitioner by a letter dated 16.1.1959. Thereafter the petitioner moved respondent No. 1, the State of U.P., to "revise' its order and "grant the applicant permanent resettlement right in India and withdraw the case under Section 14, Foreigners Act". Apparently nothing came of it and the petitioner was arrested on 23.6.1964 for being deported to Pakistan. It is under these circumstances that the petitioner has moved this Court for issue of a writ of habeas corpus seeking his release from detention.;