Decided on December 14,1965



- (1.)BY this petition under Section 491 of the Code of Criminal Procedure read with Article 226 of the Constitution the petitioner challenges the validity of his detention in the district Jail at Meerut.
(2.)THE undisputed facts which are relevant to the questions in controversy are these:--The petitioner is a national of Pakistan. In June 1965 he came to India to see some of his relations on a Pakistani passport and an Indian visa permitting his stay in India for a period of three months only. The period granted under the visa expired on 7-9-1965 but owing to the extraordinary conditions prevailing on the border on account of the hostilities between India and Pakistan the petitioner in spite of his best efforts could not go back to his country. After reporting his departure to the police at Meerut the petitioner reached Delhi on 7-91965. He was, however, arrested by the Delhi police during the same night and was sent up for trial under Section 14 of the Foreigners Act for overstaying in India. On 16-9-1965 the learned Sessions Judge, Delhi, allowed the petitioner to be released on bail. The petitioner could not go back to his country as the borders between India and Pakistan were sealed on account of hostilities. Finding himself in such a helpless condition the petitioner, after his release on bail, came to Meerut to stay with his father. On 21-9-1965 the petitioner's father addressed a communication to the Senior Superintendent of Police, Meerut, informing him that his son who was a Pakistani national was staying with him since his release on bail by the learned Sessions Judge of Delhi on 169-1965. In pursuance to an order of the civil authority. Meerut, dated 27-9-1965 purporting to be under Paragraph 5/8 of the Foreigners' Internment Order, 1962, the petitioner was arrested by the Police at Meerut on 6-10-1965 and was lodged in the District Jail at Meerut where he is still under detention.
(3.)MR. Asif Ansari, learned counsel for the petitioner has raised the following points in support of the petition. Firstly that as the petitioner was on bail granted by the Court of Session, in law he was in the custody of the Court and, therefore, could not have been arrested by the police. Secondly the petitioner could be arrested under Para. 8 of the Foreigners' Internment Order only if there was a reasonable suspicion of his having indulged or likely to indulge in any prejudicial activity mentioned in the aforesaid paragraph. It is contended that the suspicion to be reasonable envisages that it has to be put to an objective test and the detaining authority has to satisfy the Court that it had sufficient material for entertaining a reasonable suspicion about the detenu and as there is nothing on the record to show that there was any material on the basis of which the civil authority could arrive at a reasonable suspicion regarding the petitioner indulging in any prejudicial activities his arrest under Para 8 is wholly unsustainable. Learned counsel contends that a comparison of the provisions of Paras. 5 and 8 of the Foreigners' Internment Order makes it obvious that while under Para. 5 the civil authority had the power to arrest or cause to be arrested any person Para. 8 envisages the arrest of the person by the civil authority himself and not by his agent and as the arrest of the petitioner has been effected by a Sub-Inspector it cannot be held to be a legal arrest within the meaning of Para. 8 of the Order. It is contended that in Para. 8 it has been specifically mentioned that the civil authority can arrest a person without any warrant but as arrest without a warrant it must be held that an arrest under that paragraph can be made by the civil authority only after obtaining a warrant from some other authority and as in the instant case no such warrant of arrest was shown to the petitioner, his arrest and subsequent detention are illegal. Learned counsel contends that whenever the power has been given to a police officer to arrest any person without warrant it has been specificially mentioned in the provision giving him such a power. It is contended that the entire order being inconsistent with Article 14 of the Constitution is ultra vires and must be struck down. Another argument raised by the learned counsel is that persons under arrest under Para. 5 must be surrendered as soon as may be to the Commandant of an Internment Camp as provided under Sub-clause (2) of the aforesaid paragraph and neither the civil authority nor the Jailor, District Jail, Meerut, had any authority in law to keep the petitioner under detention in the premises of the District Jail. It is argued that if the arrest of the petitioner under Para. 8 of the order is held to be invalid his arrest under Para. 5 too cannot be sustained because it is settled law that if an order of detention is based on two grounds one of which proves to be illusory the entire order must be held to be invalid.

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