Amdad Hussain vs The State

Khanna, J.—This is a habeas-corpus petition filed by Amdad Hussain. who has been ordered by the District. Magistrate, Amritsar, to be detained under Rule 30(1)(b) read with Sub-rule (4) of Rule 30-A of the Defence of India Rules. The detention order is to the following effect:

Whereas I, P. N. Bhalla, I A. S District Magistrate, Amritsar, am satisfied in respect of Shri Amdad Hussain son of Rahim Bux originally resident of Sur Singh, P. S. Bhikhwind and now twenty seven Ludwick Road, London, that with a view to preventing him from acting in a manner prejudicial to the defence of India and the efficient conduct of Military operations, it is necessary to detain him.

Now, therefore, in exercise of the powers. conferred by Sub-rule (4) of Rule 30-A of the Defence of India (Second Amendment) Rules 1962 read with Punjab Government Notification No. 70(868)-cJ 63/2986, dated 23rd January. 1963, I, P N. Bhalla, I. A. S., District Magistrate, Amritsar, hereby order that Shri Amdad Hussain son of Rahim Bux, resident of 27, Ludwick Road, London, shall be arrested and detained under Rule 30(1)(b) of the Defence of India Rules, 1962, at Amritsar in the Police lock-up Sarai Agha Khan.

According to the allegations of the Petitioner, he was arrested by the police on 11th February, 1963 within two hours of his arrival in the Union territory of India under Sections 411 & 414, Indian Penal Code, 19 of the Arms Act, 9 of the Opium Act and 3 of the Official Secrets Act. The Petitioner was produced before the Additional District Magistrate on 2nd March, 1963 and was discharged, but within a few minutes of that he was arrested under Rule 30(1)(b) of the Defence of India Rules.

It is stated that the Petitioner is a British Subject and citizen of the United Kingdom. He has not visited India since June 1962 and, therefore, could not be a source of impediment in the successful and efficient conduct of military operations. The order of detention is stated to be illegal because it is for an unspecified period. The Petitioner denies the correctness of the statement in the detention order that he was originally a resident of village Sur Singh, District Amritsar. According to the Petitioner, he has never been a citizen of India at any time and as such he cannot be detained without any trial under the Defence of India Rules. The detention of the petioner is described by him to be null and void. The Petitioner has, accordingly, prayed that he be set at liberty.

Notice of the petition was issued to State and the State Government has filed the affidavit of Mr. P. N. Bhalla, District Magistrate, Amritsar, in reply. It is admitted that the Petitioner is a British National and holder of British passport. It is, however, stated that the Petitioner has been coming to India off and on to collect intelligence connected with military movements and to take it back to Pakistan to pass the same on to Pakistan Intelligence Officers. The Petitioner, it is stated, has been detained on the basis of authentic police reports with a view to preventing him from acting in a manner prejudicial to the defence of India and the efficient conduct of military operations. According further to the affidavit of Mr. Bhalla, the Petitioner originally halfed from village Sur Singh which, before the partition of the country, was part of Lahore District, but is now in Amritsar District. The Petitioner is stated to be an Indian National by birth though he might have acquired other nationality by domicile. The other allegations made in the petition have been denied and it is claimed that there is no bar to the detention of the Petitioner when his activities were found to be prejudicial to the defence of India and the efficient conduct of military operations.

I have heard the Petitioner who was personally present at the hearing of the petition and his counsel, Mr. A. S. Bains, as also Mr. M. R. Punj, on behalf of the State, and am of the view that no case has been made for interfering with the order for the detention of the Petitioner. It is stated in the detention order that the District Magistrate was satisfied that it was necessary to detain the Petitioner with a view to preventing him from acting in a manner prejudicial to the defence of India and efficient conduct of military operations. The affidavit of Mr. Bhalla, District Magistrate, goes to show that he was satisfied on authentic police reports that the Petitioner was collecting intelligence connected with military movements and to take it back to Pakistan, and that with a view to preventing the Petitioner from acting in a manner prejudicial to the defence of India and the efficient conduct of military operations, he ordered the detention of the Petitioner. The grounds on which the Petitioner has been ordered to be detained have a rational connection with the objects mentioned in Rule 30 of the Defence of India Rules and as such the validity of the detention order cannot be assailed. It is, however, urged on behalf of the Petitioner that the allegations made against him about his having collected intelligence connected with military movements and about his acting in a manner prejudicial to the defence of India and the efficient conduct of military operations, are not correct. In this respect, I am of the view that this Court cannot substitute its own judgment for that of the detaining authority and hold that even though the detaining authority was satisfied about the necessity of the detention, it should not have been so satisfied on the material before it. According to the law as it exists it is the detaining authority which has to be satisfied about the need of the detention provided the grounds of detention are related to the objects mentioned III(sic) Rule 30 and in case the detaining authority is satisfied about the existence of those grounds the Court cannot, in a petition for habeas-corpus interfere unless it is shown that the order of the detaining authority is mala fide of which there is no proof or even allegation in the present case. I may, in this context, refer to case Sohan Singh v. The State of Punjab (1963) 65 P. L. R. 457.

At the hearing of the petition, the Petitioner has stated that the statement made in the affidavit of the District Magistrate that the Petitioner originally hailed from village Sur Singh is incorrect, and he can substantiate his stand in this respect. In my opinion, it is not necessary to go into the question as to whether or not the Petitioner originally hailed from village Sur Singh because the validity of the detention order does not depend upon that fact. Argument has also been advanced on behalf of the Petitioner that he being a British Subject, no order for his detention under the Defence of India Rules can be made and that the only order which can be made is that he should remove himself from India. In this connection I find that Clauses (a) and (b) of Sub-rule (1) of Rule 30 read as under:-

Restriction of movements of suspected persons, restriction orders and detention order.-

(1) The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India''s relations with foreign powers, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations, it is neecessary so to do, may make an order -

(a) directing such person to remove himself from India in such manner, by such time and by such route as may be specified in the order, and prohibiting his return to India ;

(b) directing that he be detained.

Perusal of the above provisions goes to show that the power can be exercised with respect to any particular person with a view to preventing him from acting in a manner prejudicial to the defence of India and the other objects specified therein. There is no limitation imposed in the rule that the power can only be exercised in respect of Indian citizens and not with respect to foreigners. To accept the contention raised on behalf of the Petitioner would be tantamount to reading the words "who is an Indian citizen" after the words "any particular person" in Sub-rule (1) reproduced above, although the words "who is an Indian citizen" are not there. Clauses (a) and (b) of the sub rule make it clear that power in given circumstances can be used for directing a person to remove himself from India as well as for detention. The power of directing a person to remove himself from India would normally be used against foreigners and not Indian citizens, and the fact that Rule 30 includes the power of directing a person to remove himself from India goes to show that foreigners are not excluded from the operation of Rule 30. There is also no force in the contention that the Petitioner can only be ordered to remove himself from India and not detained because Rule 30 gives the power of not only directing a person to remove himself from India but also of detaining him. Indeed, in certain circumstances detention may be the only appropriate remedy. Supposing, for example, an enemy agent comes into India and gathers information of vital strategic importance. In his case it would be hardly proper to send him out of India because on going out he would convey the information gathered by him and of which he might have made a mental note. On the contrary, it would certainly be more appropriate to detain him rather than send him out of India. It is no doubt true that Rule 30 refers to the Central or the State Government which can exercise powers under the rule. Reference to notification No. 70(868)-5J-63/2986, dated the 23rd January 1963 issued by the Punjab Government in exercise of the powers conferred by Sub-section (2) of Section 40 of the Defence of India Act, goes to show that the District Magistrates within the areas of their respective jurisdiction have been authorised to exercise the powers exercisable by the State Government under Rule 30 of the Defence of India Rules.

It has next been argued that under an international convention or treaty, to which India is a party, no foreigner can be detained without a trial. I have, however, not been shown any such convention or treaty at the hearing of the petition. The Defence of India Rules contain a clear provision for detention of any person for the objects mentioned in Rule 30 and if the order for detention is in conformity with the aforesaid law of the land it cannot be struck down in a Court of Law. I would, therefore, hold that the order for the detention of the Petitioner cannot be deemed to be invalid because he is a British Subject.

Ground was also taken in the petition that the detention order was bad because it did not fix any period of detention. No provision of law has been shown to me which makes it obligatory upon the detaining authority to specify the period of detention in the detention order. Indeed, no argument was advanced on that score at the hearing of the petition.

The petition, accordingly, fails and is dismissed.