a s.c.R. suPREME couRT R:Eroitrs !Ji5

STATE OF UTTAR PRADEISH

ABDUL SAMAD & ANOTHER.

(B. P. srnHA, c. J., K. suBBA RAo, N. RAJAGOPALA

AYYANGAR, J. R. MuDHOLKAR and T. L.

VENKATARAMA AIYAR, JJ.)

Habeas Corpus-Arrest and detention for de1Jortalion- Petition for haheas corpus-Police holding detenues for production before High Court-Non-1iroduction before Magistrate- Production before High Court and grant of bail-Detention, if illegal-Con•titution of India Art. 2 2( 2).

In pursuance of an order for their deportatio11 the respondents were arrested on July 21, and sent to Amritsar.

The next day a habeas corpus application was filed on their behalf before the High Court at Lucknow and they were ordered to be produced on July 25, but on the High 'Court being informed that the respondents were beyond its jurisdiction it directed the application to be consigned to the records.

On spurious information being received at Amritsar that the respondents had to be produced before the High Court the respondents were sent back to Lucknow which they reached at 1 P.M. on July 25.

They were produced before the Deputy Registrar at 3 P. M. and he directed them to be produced at I0.15 A.M. on 'the next day. In the mean time a second habeas corpus application was filed on behalf of the respondents, inter a1ia, on the ground that the detention of the respondents was in violation of Art.22 of the Constitution as they had not been produced before any Magistrate. The respondents were produce¢ before the High Court at 10.30 A.M. on July 26, when the High Court adjourned the case till 2 P.M. onJuly

0 27, and directed the production of the respondents at the time of hearing. On July 27, the High Court ordered the release of te respondents on bail and adjourned the case till July 28. On July 28, the High Court allowed the application and directed the respondents to be released on the ground of a contravention of Art. 22(2). It did not consider the legality of the detention in the first stage, i.e. from July 21 to 1 p.m. on July 25, but held that the detention in the second stage was illegal as the respondents were not produced before a Magistrate within 24 hours of l P.M. of July 25.

Held, (per Sinha, C.J., Ayyangar, Mudholkar and'Aiyar,

- J.J., Subba Rao, J., dissenting), that the detention of the

196:!

March16.

19G2

Stales of Uttar

I'rarksh

A /.c}ul Sa11uJcl

!)Hi SUPREME OOUitT HEPORTS [1002] SUPP.

respondents was lei; al and the High Cou1 t '''a=> , .. 1ong in orUer ing their relcast'.. rhc rcsponrlc:nts \\'Crc produced before the High Court on .July 26, within 2+ hours of their airival at Luckno\v and the lligh C0urt by ordcrini.;· their production the . next day permitted the rr:spondcnts to rcn1ain in police custody. 'I hey were again produced before the 1-Iigh (; ourt within the

next 24 hours on July 2i, \Vhr:n they \Vere ordered cu be rrleased on bail. "fhus at no tin1e during the sccund sragc wuld the respondents be said to have been 11legally detainer! for 1nore than 24 hours \Vithout production before a j udical authority in violation of Art. 22(2).

Per Subba Rao, J. The detention of the respondents \Vas illegal.

The detention could no! b: dissected into t\\'O stages; it ,.,,.as a continuous one.

Arrest an<l detention for purposes of deportation was subject to t e provisions of Art.22(2) and the 1espondents not i1aving been produced lieforc a ~11fal{istr<itc \\oithin 24 liours of their arrest the delc11tion ~\'as illegal.

Collector of Ma/, af, ar v. },"/17ohim llajee, (19:i7) S.C.R. ~70 and State of l'unjab v. Ajaib Sinyh, (1953) S.C.R. 254,

distinb>'Uishj .

CRIMJNAL APPELLATE .JuHJ~!JfCTlOl'i : Criminal Appeal !\o. 48 of UHll.

Appeal by special leave from the judgment and order dated July 28, I fHiO, of the Allahabad High Court (Lucknow Bench) at Lucknow in Cr. :\iisc. rase :No. 186 of IU60.

G. C. , Jfot/mr and C. /'. Lal, for the appellant.

S. P. Siiiha and JJJ. I. JOmuj11, for the respondents.

19(i2. March !ti. The , Judgment of Sinha., C. , J., Ayyangar, 7lludholk1; r and Aiyar, , J, J., was delivered by Ayyangar, J., Subba Rao, J., d1•livcrPd a separate Judgment.

AYYA:SGAR, J.- This is an appeal by special lcaYc against the judgment and orcl!'r of the High Court of Allahabad by l\hich it allowed a petif.ion under, s. , l!)l of the Criminal Proc<'<lure Code filed

on behalf of the rcspondrnts.

We shall now narrate the facts which are not in dispute. The two respondents, who are husband and wife, were in Pakistan in March 1955. While there, they obtained a Pakistani passport on September 6, 1955, and obtained from the Deputy Indian High Commissioner on September l 7, 1955, a visa to enter India which theY. did on September 22, 1955. The visa granted to them was of the •C' category i.e., for temporary stay, which permitted them to remain in India till December 16, 1955.

By repeated applications they had the term of the visa extended and continued to stay in India. On Angust 10, 1957, they applied for their registration as Indian citizens but the application was rejected on October 18,

1957. Thereupon they moved the High Court by a petition under Art. 226 of the Constitution to have this order of the rejection of their application set . aside but the petition was dismissed in April, 1959.

Thereafter orders were iosued by the State Government and served on them asking them to leave India but they repeatedly applied for and were granted extensions of time for so doing.

The last extension applied for was on December 22, 1959, but .this was rejected and_ the government passed an order on July 7, 1960, requiring them to leave India within 24 hours after its service upon them.

This order was served on them on , July 20, 1960, at about 10 a.m. but they made no efforts to comply with it.

The order not having been complied with the police took the two respondents into custody on the evening of July. 21, 19ti0, at about 6 p.m. and sent them on by train to Amritsar for being deported to Pakistan.

The respondents with their escort reached Amritsar in the early hours of July 23,

1960. The Head Constable who had the custody of the respondents produced them before the Reader of the District Magistrate, Amritsar as directed by the Senior Superintendent of .Police, Kanpur anq

State of Uttar ·

Pradesh

A bdn'/ Sam ad

AyyangtlrJ,

J961

Stolt of Ullar

l'"'hsh v.

Abdul Stmad

!ll8 SUPREME COURT REPORTS [1962] SUPP:

the Reader took thorn by about IO a.m. to a Magistrate who ordered that they be kept in the Civil

Lines Thrma till further orders.

Meanwhile, afccr the departure oft.he rcsponrlents from Lucknow, proceedings were started on their behalf under R. 491 of the Criminal Procedure Code before the Lucknow Bench of the Allahadad High Court.

This application was filed on July 22, 1960.

The learned Judgo before whom the application was placed directed notice to the State of Uttar Pradesh and required the State to take a.II possible steps to detain these two persons and produce them before the Court. It ma.y be mentioned that the ground upon which the detcntiou was challenged as illegal in this petition was that the respondents were "British subjects" within the meaning of the Foreigners Act a.nd hence "their arrest was illegal as they were citizens of India." In other words, what was challenged was the validity of the deportation order. On the same day, i.e., on July 22, 1960 the petition wa.s placed hefore the Bench dealing with the matter which fixed tho date for the hearing of the petition as 10.15 A.:11. on July 2ii, l!lliO, R.twhich hour the rr•spon<lents ·, vcr<' directed to bo produced before the Court..

On July 2;~, 1()()0, a count<ir-affidavit waH filed on behalf of the State, which was affirmed by n Sub-Inspector of Police who, after denying that there was anything iilDgal in the order of deportation, stated that the respondents had been taken into custody on July 21, 1960, and were immedia.telv thereafter sent to AmritJ1ar and were therefore 1!0 more in Vtt-0.r Prade8h within the jurisdiction of the Court.

The petition under R. 491 of the Criminal Proeedure Code was taken up for hearing by the Court. on , July 25, 1960, nR originally fixed, and after perusing the counter-affidavit filed on behalf of the State, the learnod .Judges in their ordor

stated that the two respondents had been sent away to Amritsar and were no longer within the territorial jurisdiction of the Court, and recorded~

"We find that we have no jurisdiction in the matter"

Their further direction was :

"The proceedings are consigned to records".

Certain matters, however, transpired on July 23, 1960, to which it is necessary immediately to refer. After the remand by the Magistrate at Amritsar on July 23, 1960, and when the respondents were being kept in Civil Line Thana, a telegram was received by the police at Amritsar and also a call by trunk telephone, purporting to be from Saxena, Under Secretary, Home Department, U.P. informing them that the High Court had issued orders that the respondents should be brought back to Lucknow to attend their case on July 25, 1960.

It is now almost common round that the telephone call as well as the telegram were spurious and did not emanate from the authorities at Lucknow. The Amritsar polico however acted on these messages and immediately made arrangements for transporting the respondents back to Lucknow where they arrived at about 1 P.M. on July 25, 1960, by which time it would be noticed the petition filed on July 22, 1960, had been disposed of by the High Court by being consigned to records.

Immediately on their arrival a supplementary application was filed for reviving the petition which had been disposed of earlier in the morning founded upon the ground . that the respondvnts were then at Lucknow within the jurisdiction of the Court and praying for a direction that the respondents be released on bail. One other fact requires mention. The police at Amritsar h1tving been informrd th1tt the High Court had qirected the two respondent~ to be produceq before

tale of Uttar

PradeJh . v. .

Atdul Somod

AJ)'onpat #,

State of {Tttar

Pradtsh

v. ilhdul Samad

A.r.J'.l"l!.arJ.

920 SUPREME COURT REPORTS [1962J. SUPP.

it, the police constables who escorte<l the respondtntR from Amritsar immediately on arrival pr.oduced thPrn Lefore thP Deputy Hegi8trar of tho High Court and this officer pass,:d an order in these terms:

"Tho detcnuPs who were Lrought from Amritsar today at. about 3 P.M. to this Court ......... are sent back under the same custody with the direction that the Head Constable ... .. . ... should produce them before this Court at IO.Iii A.M. tomorrow, the :Wth July, l!J60 po sitiV<dy."

1md the Head Constable made nn endorsement on th<' order undertaking to produce as direckcl.

Not contont with what was termed the supplemPntary application filed on the 2iith aftrrnoon, a fresh petition unrlcr s. 4!ll of tl1P Criminal Procedure Codo was filrd on tho 26th for the production of the respondent; i and for thrir being set a.t liberty and it is this aprlication that was allowed hy the learned Judges. In the petition, beaicles repeating the allegation8 nlrcad.v made in the petition filed on .Tnly 22, 1960, chalJt.nging the validity of the rkportntion order, n fresh one wnR addNI which ran:

"Since .Tuly 21, 19n0 the applicants are in custody without. being produced before any Ma!!istrate and hence the provisions of Art.. 22 of thri Constitution have been violated".

Which, as would be seen from tho abo:ve narration.

was delibRrately false, and.it ended with th~ prayer that the Stato be rcstrame<l from effeetm!( the

<lcportation of the reaponrlentl! to Pnkistan. Both the "supplementary appl.intion" elated .July 2fi,

1960 to r"vh" thP pct1t1on dat<'d .July 22, l!l60, as w"ll as the fresh substantive petition clat.ed .July 26, 1960, camo up for orders before the Bench on

July 26, 1960, and the learned .. Jud.ges,', afterdisp.os- . :ing of the "supplementary apphcat10n by directmg

that no orders were necessary thereon because of the other petition, passed an 0rder on the petition dated July 26, 1960, that it would be taken up for hearing the next day (i.e., 27th at 2 P.M. and alo

directed that the respondents should be produced m Court at the time of the"hearing.

The petition was taken up on July 27, 1960, as directed the previous day when the le:i, rned Government Advocate prayed for :i, n adjournment of one day, i.e., till July 28, 1960, to enable hirn to file proper affidavits particularly as r'egards the bogus communication received by the police at Amritsar which as responsible for the respondents being brought back to Lucknow. The adjournment asked for was granted bt1t in doing so the learned Judges made this ob;; ervation :

"As it is not denied that the two applicants have been in police custody since 21st July, 1960, it appears to us that their non-production before a Magistrate within 24 hours of ttheir being taken in custody is pr-ima facie open to 0bjection under the Constitution of India. We, therefore, without corning to any decision, direct that the two applicants sh.all forthwith be released on bail on each of them furnishing a personal bond in the sum of Rs. 1,000/- (one thousand) and two sureties in the like amount to appear before this Court tomorrow at 10.15 A.M. sharp and on all

daes to which the hearing of the case may be adiourned... ...... .. . .. . ..... In case of default the two applicants ill be remanded to jail custody."

Thei respondents took advantage or this order for their release on hail :i, nd they were accordingly released the same day. The State filed a counter-

:1ffidvit on July 28, 1960, in the course of which

State of Uttar

Pradesh

Abdul Samad

A7yangar J •

)962

Stal• of VIiar

Praduh

•• Abdul Samad

Ayyan_ear J.

922 SUPREME OOURT REPORTS (1962) SUPP.

they pointed out that the respondents had been produced bAforo a Magistrt-0 !at Amritsar and recounted the other facts which

we have already narrated.

The matter came on for final orders on , July 28, 1960, when the learned .Judgpe held that the respondents bad been detained in violation oft.ho provisions of Art. 22(2) of the Constitution and thorefore directed their hoing set at liberty. It is the correctness of this order that is challenged by the State in this appeal.

Pausing here we consider it necessary to mention one matter. We were informed by ::IIr. Sinhalearned Counsel-who appeared for the respondents that subsequent to tho order of release now under appeal the respondents had instituted a suit in a

Civil Court challenging the validity of the deportation order and had obtained n.u interlocutory injunction restraining the State from effecting their deportation pending the disposal of the suit.

On this ground he urged that tho question of the correctness or propriety of the order of the High Court was no louger a livo issue hut had become acadcmic.

Having carefully considered this aspect of the mn.tter wo have arrived at the cimclu8ion that the grounds on which the learned .Judges J..inve directed the reli:n.sc nre Ruch as to require examination at

our hn.nds.

It would be noticed that he respondents had been in custody from a bout G P.llf. on the 2 I st , July to the evening of the 27th July when on the orders of the High Court they were rclt>ased on bail.

Tho learned Judges have divided this into two periods-the dividing line being

1 P.'.IT. nn 25th July l(lUO, when they were brought to Lu"know

in pursuance of the telephonic message purporting to emanate from the Under Secrctarv to G0\'1 rnment for being proclucerl before the High Court.

The Learned , Judges of t.he High Court confined their attention to tho second period aud holding

that during this period there had been a violation of the requirements of Art. 22(2) of the Constitution, in that the respondents had not been produced before a Magistrate within 24 hours of the commencement of the custody, expressed their opinion that the detention was illegal and directed the release of the respondents. It is the correctness of this order . of the High Court that arises for consideration in this appeal.

Before p:'oceeding to examine the reasoning of the learned Judges it it necessary to state one matter. In view of the ver, v limited question before us we do not feel called upon to deal with the scope of Art. 22(1) or .22(2) or of the two clauses read together in relation to the taking into custody of a person for the purpose of executing a lawful order of deportation which would require to be considered in regard to the detention durin~ what has been stated earlier as the first period. When the question does arise for decision the following circumstances would be among those to be considered before the scope of the constitutional guamntee could be properly determined: (1) An alien has no legal and enforceble

right to enter the country and can do so only subject to the permission granted by the executive under our law and when such a person overstays in the country beyond the period for which he i' so permitted, the State acting through the executive is entitled to require the alien to quit the country for the mere reason that the period for which he has been permittd to stay has elapsed. - (2) That where an alien is takn into custody in pursuance of a valid order of deportation he is not charged with any offence within the meaning of these words in Collector of Malabar v. Ebrahim Hajee (1 J but the State is merely effecting his removal from the country - an act which the alien was himself bound by law to have done. (3) When the Constitution makes a provision for procluction before a Magistrate, the requirement is not to be trea.te1l as any

(1) [1937J S.C.R, 970. .

196B .

State of Uttar

Praderh

Abdul Samad

Ayyangar J.

19C2

Stalt nf Uttar

PradtJh v.

Abdul Sr; mad ---.

A vangor J.

924. SUPREME COURT REPORTS [1962) SUPP.

formality but as purposeful designed to enable the person arrested an<l detained to be releaRed on bail or other provision made for his proper custody pending the investig1tion into the offence with which h<' is charged or pending an enquiry or trial.

In the caRe of a lawful deportation order the Magis trate can obviously pasR no order for release on bail or direct any other custody than that of the officers who have to execute the order of deportation.

As stat<'d earlier, the learned , Judges having confined their scnit.iny to the second period we shall not pronounce on the precise scope of Art.22(1) or (~) or the two clauses read together in n'lation to an arrest and dPtcntion for the purpose of exeeu

ting a lawful order of deportation, which arises by n:ason of tho non.production before a magistrate within 24 hours after the respondents w"rn taken into custody on the evening of the 21st , July or before the nearest Magistrnt c, but shall restrict ourselves to the very narrow question whether there was any basis for th(! conclusion of the Learned

.Judge~ that there had been a. viol:ition of the constitutional guarantee after the respondents were brought to Lucknow at beyond middny on 2iith .July, l9GO.

The main judgment in the case wa~ r1mdercd by igam, .J., who reasoned as follows :

"I do not propose to give a considered view on the matter of (arrest and detention

of a person for the purpose of deporting him out of India not being an arrest and detention within Art. 22(2)) at this stage for I am of opinion that even if tho contention of the

learned Counsel iH accepted the detention on 2ith July, I %0 could not IH' said to Ii(• n detention for the plll'posc of deportation".

This he explained lat.er by stating :

"After return from Amritsar the t:w"

applicants were being detained not for the vurpose of deportation for bad that been the guiding purpose they would never have been brought back from Amritsar.

They were brought back to Lucknow and were being detained in the custody in connection with the writ petition pending before this Court. Thus, I find as a matter of fact th<it

in tbe present circumstances the detention was not in connection with the deportation of the petitioners and as such, it being admitted that the petitioners were not produced befofe a Magistrate within 24 liours of their arrest and were not being detained in connection with a warrant for jail or police custody signed by a Magistra, te or other judicial officer, it cannot be suggested that their detention was legal." Mulla, J., the other learned Judge also divided the case into the same two stages. And this learned Judge also thought that at the second stage a violation of Art. 22(2) had occurred. His reasons. were stated thus :

"l need not dwell upon the first stage but I feel that once the petitioners came back within the jurisdiction of this Court and a writ waR filed on their behalf eailier, which was entertained and on which the State was asked to submit a return, the matter• had become sub-judice and the detention or custody of the petitioners ceased to b peurely au administrative custody for the purpose of carrying out an executive order. It is wellknown that in writ of habeas corpus. the presence of the petitioners before the court is necessary and therefore they became parties to a judicial proceeding and they can be lawfully kept only in judicial custody ............ The courts of law do not approve

State of Uttar

Pradesh

Abdul Samad

Ayyango1 J.

Slat, of Ullo.

P•aduh

Abdul Samt1tl

ll26 SUPREME COURT REPURTS [1962] SUPP.

of citizens or aliens remaining in tho custody or detention of the police for a long time.

The police is certai11 ly carrying out its executive duties and it i8 in the discharge of these duties that the police has to keep some persons

in their custody, but the courts a1e vi@ilant that tho police does not detain persons in their cuatody beyond the }Jcriod which is necessary for the discharge of their duties. hi this case it was not necessary for the polico to detain the petitioners in their custody for diseharging their dutios urn! their duty wuuld start after the writ 1ietit.io11 was decided.

L p to that time the presence of the n1J!lie1111ts \la~ noe<led in tho hearing of the writ petition fi]c, d

by thorn and their detention for thiH pt riod was primarily to help the court in deciding the Writ Petition." It is not very clear from the learned Judge's judgment as to what according to him was the duty of the police after a petition for a writ of habeas corpus had Lel'n filed. It is not. possible to make out whether it was the opinion of the learned Judge that on the filing of a petition for habeas corpus the polico were bound immediately to have released the detained person or whether the authorities could la"l\folly detain the perBon till the Court decided the mattC'r.

The leamed Judge Wf'llt on to add :

"l am, therefore, clearly of the or: inion t }l!l t t bf' pct it iouns hould have bce1' •presented either before the High Court itst';: for a suitable remand order or at any rate efore a MagiBtrate so that a judicial mind B~ ould have operated in deciding the question \a to their being kept in cuBtody and the cond1 •ions under which they should be kept in oust ody.

The State failed to do so and detaine ithe

petitioners in the CUBtody of tho police. C'his

violates the manda'tory provision of clause (2) of Article 22. It cannot be said that the arrest and detention of the petitioners subsequent to their coming back to Lucknow was that type of detention which is not covered by the mandatory proviions of Article 22." It is very difficult to appreciate what ex, actly either of the learned Judges had in mind in making these observations holding that the guarantee under Art. 22( 2) had been violated. During the "second stage" at which tho learned Judges held that the detention has been illegal because of violation of Art. 22(2), the facts were these : The respondents had brought back to Lucknow on a message requiring their production before the High Court. They reached Lucknow on the 25th at 1 p.m. and were produced at 3 p.m. the same day, i.e., within two hours of reaching Lucknow before the Deputy Registrar. The Deputy Registrar had directed their production the next day and they were accordingly so produced.

Even taking it that the Deputy Registrar was not a judicial authority such as the learned Judges had in mind, the respondents had been produced on the 26th morning at 10.15 a.m. before the learned Judge3 when they were at liberty to make any order regarding the custody which they considered proper and the time when they were produced before the Judges was admittedly not beyond 24 hours from the time the respondents reached Lucknow .. On the 26th the learned Judges who took part in the final decision passed an order directing the production of the respondents on July 27, 1960; at 2 p.m. which obviously permitted the previous custody to be con tinned till further orders. They were produced accordingly at 2 p.m. on that day and by a further order of July 27, 1960, the learned Judges had directed the release of the respondents on bail and in pursuance of this order the respondents had been released on July 27, 1960, itself. In these circums

State of Uttar

Praduh

Abdul Samad

AyyangMJ.

.tolr nj Uttar

I'radesh

Abdul Samad

1IJJU1.g:1r J.

928 SUPREME COURT REPORTs (1962) SUPi'.

tances we are at a loss to unden; tand which is the period during "the second stage" or "on tho 2ith", when the respondents could be ea.id to have been illegally detained for more than !!4 hours without produotiou before a judicial aut, hority as required by A, t. 2~('.!).

We would add that oven if Art.22(2) wcrn construed tu require that a person arrested and detained has to be produced before a Magistrate every 24 hours during his detention, a meaning which it assuredly cannot bear, though it is not clear to us whether the 'learned J udgo did not undorstand the Article to require this, even such a requirement wau satisfied in this case as the respondenU:l were during "the second stage" produced before the High Court itself "for suitable orders" on the 26th and again on the 27th. We have no desire to comment further on this judgmeu t 9f the learned Judges except to s<ty that tht>re was no justification whatsoever for the finding on tho basis of which the loamed Judges directed the release of the respondents.

We have given anxious thought to the quPstion as to the proper order to pass in the appeal.

In the first place, we have to take into account that it is the liberty of the person that is involved and that it is the duty of the Courts to ensure that there is no encroachments on that liberty anrl particularly of infringements of the guaranteeB which the Constitution has conferred on all persons, oitizens and others in that regard. When the highest Court in a Sta.te has made an order upholding such a libCrty, this Court would naturally be slow to intorfero with it unless satisfied that there has been a miscarriage of justice caused by a patently erroneous interpretation of the law, though it need hardly bo added that a miscarriage of justice might equally be occasioned by the improper order of release of a person whose custody is lawfo!. We are alsn conscious of the fact that the appeal before us is

by virtue of special leave under Art. 136, and that

3 S.O.R. SUPREME CC>URT REPORTS 929

in such cases, it is not every error that would be corrected, and in a case of the kind now before us, the conscience of the Court should be satisfied that interference is called for before the order of the Court below is interfered with. It is bering these considerations in miad that we have arrived at the conclusion that the order of the High Court should not be allowed to stand.

The appeal is accordingly allowed and the order of the High Court set aside.

SUBBA RAo, J.-I regret my inability to agree. The facts are simple. The two respondents, husband and wife, were arrested at Lucknow by the polioe on July 21, 1960 at about 6 p.m.

Soon thereafter, they were sent by train to Amritsar for being deported to Pakistan. They reached Amritsar in the early hours on July 23, 1960, and were produced before a Magistrate at Amritsar at

10 a.m. on the same day. They were ordered by the said Magistrate to be kept in Civil Lines Than& till further orders. They were brought back to Lucknow in the afternoon on July 25, 1960, and, immediately thereafter, they were produced before the Deputy Registrar, High Court, Lucknow Bench, who directed them to be produced before the Court at 10.15 a.m. on the next day. At 10.15 a.m. on July 26, 1960, the High Court directed the respondents to be produced in court at 2 p.m. on July 27, 1960 to which time the petition for habeas cor- pus, filed by the respondents, was posted for hearing. The petition was adjourned to July 28, 1960 and the High Court directed the two applicants to be released on bail on certain terms. On July 28, 1960, the learned Judges allowed the petition for a writ of habeas corpus on the ground that the arrest of the respondents was in violation of the provisions of Art. 22(2) of the Constitution and, therefore, directed them to be set at liberty.

The State of Uttar Pradesh has preferred the present appeal against the said order of the High Court.

196t

State of Uttar

Pradesh

Abdul Samad

Subb11 Rao, J •

"'tali of Utldr

l'r11d, sh

Abdul Sa1nad

930 SUPll™E OOUH:r Rl>ORTS [1962] SUPP.

It has been brought to our notice that subsequent to the tiling of the present appeal, the

respondents filed a smt and obtained an injunction against the State from deporting them to Pakistan pending the disposal of the suit. In the circumsta.nCCH they have ceased to have any interest in the present appeal.

The first question is whether it is a. fit oase for exercising the extraordinary juriRdiction of this Court under Art. 136 of the Constitution. The appeal has become infructuous, for even if the 1State succeeds it cannot arrest the respondents till the disposal of the suit. Nor has the High Court decided any such impcrta.nt question of law as to cause some irreparable injury to the appellant unless this Court sets the matter right. The learned Judges expressly left open the question raised, namely, whether Art. 22 would govern the arrest for the purpose of deportation. I would, therefore, dismiAs the appeal on tho simple ground that this is not a fit case for interference by this Court,

That a.pa.rt, I am also not satisfied that the conclusion arrived at by the High Court is wrong. On the said facts, the respondents were arrested on July 21, }!)60, for tho purpose of deportation and they wre admittedly not produced before the nearest Magistratp, wit.bin a period of

24 hours of such arrest excluding the time necessary for the journey from thfl place of arrest to the court of the Magistrate. .Such persons coulcl not be detained in custody beyond the said period without the authority of a Magistrate. There iH an allegation that the respondents were produced before a Magist.rat<' at Amritsar, I.Jut that i\Iagistrate did not satisfy the definition of ".:llagistrate" in Art. 2:!(2) of tho Constitution. I find it difficult to dissect the detentiou into two periods, namely, (i) detention for deportation, and

(i) detention for production before the High Court.

The act of detention was a continuous one and it did not cease to be one for the purpose of deportation by the fact that the respondents were brought back to Lucknow or thereafter to the High Court pursuant to the notice issued.

The question, therefore, is whether such an arrest for the purpose of deporta, tion is outside the ken of the constitutional protection given under Art.22(2).

Indeed, the State of Uttar Pradesh in its petition for. special leave contended that the detention was for the purpose of deportation and, . therefore, was not governed by the said provisions. The material portions of the article read:

"22. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessa.ry for the journey from the place of arrest to the court of the magistrate and no such persqn shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

( a) to any person who for the time being is an enemy, alien; or

'(b) to any person who is arrested or detained under any law providing for preventive detention."

It would be seen that under this provision there is a constitution injunction that a person arrested and detained in custody shall be produced before a magistrate within the prescribe~ tin; ie. It cann?t

be gainsaid that arrest and detention m custody m contravention of this provision is illegal. Clause

(3) of the article specifies two exceptions to the

196t

Stott of Uttar

Prarlesh

v. /bdul S motl

Subba Rao J.

SI•" of Uttar

Praclesla

Abdul Samoa

Subba Rao J.

932 SuPREME COURT REPORTS [1002] SUPP.

said injunction.

Admittedly the respondents did not fall under one or other of the two exceptions.

The constitutional provision is couched in clear

and unambiguous phraseology and it is not permissible to read into thn.t. proviRion exceptions other than those specially provided for.

When a provision issues an injunction in clear words and provides for two specific exceptions it must be held that it prohibits any other exceptions. In the present .case it is not. disp•1ted that the respondenta were arrested by the police on July 21, 1960,

and detained in their custody till they were pro, duced before the High Court, and tha.t their production before the Magistrate at Amritsar was not in compliance with the provisions of Art. 22(2) of the Constitution.

But. it iH argued that this Court has limited tho eontcnt of the words "arrested and detained" in State of Pim jab v. Ajaib Sinyh{l) and The Collector of Malabar v. Erimal Ebrahim Hajee(').

The first case relates to an abducted person taken int@ custody for the purpose of being ha.oded over to a rescue-home. But that decision was confined only to the facts of that case, namely, a <'.ase whir:h dealt with an extraordinary situation of unprecedented exodus and abduction.

Das, J., as he then was, observed:

"It is not, however, our purpose, nor do we consider it desirable, to attempt 11 precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that some within its protection. Whatever else may come within the purview of article 2:!( 1) and ( 2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put .upon an abducted person in the process of recovering and taking that person into custody

{I) !1953)S.C.R. 254,269.

(2) [1957) $.C.R. 970.

without .any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in-charge of the nearest camp under section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of article 22(1) and (2)".

There, this Court was dealing with a case of the police taking into custody an abducted person with the limited object and with the sole view of delivering that person to the custody of an officer incharge of the nearest rescue-home. In the , view of this Court, such a person was not doing any act prejudicial to the State or the public interest and, therefore, the act of taking such a person into custody was not arrest within the meaning of the said constitutional provision. But in the present case the respondents, who are alleged to be foreigners, were directed to leave the eountry; and, as they failed to do so, the police arrested them wit, h a view to deport them out of the country. The respondents were certainly guilty of an act prejudicial to the State or the public intereAt and, therefore, their arrest could not be equated with thitt of the person in the aforesaid case. This Court in express terms confined that deciAion to the facts of that case.

The second decision took away the case of . arrest of a person in execution of a warrant by a

, civil court out of constitutional protection. That decision does not bear upon the present case.

For the foregoing reasons, I hold that the

Slate of Uuar

Pr-adesh

v •.

Abdul Samad

Subba Rao J,

S14, of Uttar

Pratk1h

Abdul Samad

Sribja Rao J.

March I'

934 SUPREME COC'RT REPORTS [1962) SUPP.

arrest of the respondents was illegal and that the High Court rightly ordered their release.

In the result, the appeal fuils and is dismissed.

BY Cov1a. In accordance with the opinion of the majority, the appeal is allowed.

M/S. SERAJUDDIN & CO.

1;.

THEIR WORKMEN

(P.R. GAJENDHAGADKAR and K. ~. WA~CIIOO, JJ.)

I11dustrial DispMle-Reference b11 Stau Gol'emmenlr alidity-"A1)1)ropriate Goiern1nent 1 i -''Industrial dispute'', in relation to 1nine-l'onstrur.tion of-1'J(ine"-DefinilionbidMslrial Dispuf.fs Ar.t, 1947 (J4of 1947), ss. 2(a), 2(a)(i), 2(j), 2(k)-Jfinr., Act, 1962 {-~··; of 19o2), "' 2(j), 2(k). 2(h).

/\. <lisp:.Ite covering clain1s n1adc by the employees \Yas referred for adjudication to rhc tribunal by the State Government of \Vest Bengal. The appellant r:iisecl a preliminary objection against the validity of the refcrencr and urged th<Lc uncler s. 2(a) the appropriate Govcrnmrnt \Yhich could make a valid reference in relation to the present dispute was the Central Govr.r11mcnt and not the Govcrn1nent of lVest Bengal and so, the refr.rcnce "''as unauthorised and inconlpetnt and the Tribunal had no jurisdiction to deal v.:ith it. The Tribunal over-ruled this objection an<l the case was set do\vn for hearing on the merit:;.

Against th_is finding, the appellant prei'errc<l the present appeal hy special leave and the only point raised \\as that the hr.ad office of the appellant at Calcutta hcing an interal part of the mine, any industrial dispute bet\vccn the said office and its ernployces is an industrial dispute concerning a 111ine under s. 2(a)(i) and so the appropriate Governn1cnt 1nust be the Central Government and not the State Go, ernmcnt. 'fhc q11cstion for decision \Vas \Vhcther the present dispute can h<· said to he an industrial dispute concrrnin~ a 1nine It \Vas argur.cl that the \\'ord ''industry" is wide enough to include the Head Office of a mining company though, it may be situate<l a\\'ay from the