FAZAL AZIM Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE petitioner, who claims to be an Indian citizen, has challenged the validity of the order of the Civil Authority (the Superintendent of Police, Saharanpur) dated 6-1-1972 directing that the petitioner be confined in the District Jail, Saharanpur. It appears from the orders of Sri R. S. Gupta, Magistrate 1st Class, Saharanpur and that of Sri Chandra Prakash, Civil and Sessions Judge, passed in Criminal Appeal No. 327 of 1970, that the Central Government has already decided the question of nationality of the petitioner. He has been declared to have acquired the nationality of Pakistan after 1950. In fact on that very basis he had been prosecuted earlier: The petitioner was deported on 19-4-1965 but some how managed to re-enter India. He was again arrested and alter a trial an order for his deportation was passed and he was actually deported outside India on 23-7-1967. The petitioner again managed to come back to India and he was arrested on 16-21968. After his arrest he was prosecuted under Section 3/6 of the Passports Act read with Section 3/14 of the Foreigners Act. The learned Magistrate by his order referred to above held the petitioner guilty of contravening the provisions of Section 3 of the Foreigners Act and convicted him under Section 14 of the said Act and sentenced him to rigorous imprisonment for six months, IJis appeal was dismissed by an order, dated 19-8-1972. The petitioner filed a revision in this Court which was similarly dismissed. When the period of the sentence awarded to the petitioner was to expire, the Civil Authority passed an order under Section 5 of the Foreigners (Internment) Order, 1962, (hereinafter referred to as the Order of 1962), which has been challenged before us.

(2.) THE only question urged by the learned Counsel was that before the amendment of Section 3 of the Order of 1962, in September 1965, it was not. applicable to a national of Pakistan. The Central Government delegated its power under Chapter II of the Order of 1962 to the State Government vide notification, dated 31st December, 1964. When the power was delegated. Chapter II of the Order of 1962 did not apply to a Pakistani national. It was made applicable only after the amendment. introduced on 6th September, 1965 and since there was no subsequent delegation in favour of the State Government, the order passed by the Civil Authority appointed by the State Government was incompetent and invalid.

(3.) THE Notification, dated 31-12-1964 delegating certain functions to some of the States, including Uttar Pradesh, is as under: In exercise of the powers conferred by Clause (1) of Article 258 of the Constitution and of all other powers enabling him in this behalf, the President with the consent of the State Government concerned, hereby entrusts to the Government of each of the States of Andhra Pradesh, Assam, Bihar, Jammu and Kashmir, Kerala, Gujarat, Maharashtra, Madhya Pradesh, Madras, Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh,. West Bengal and Nagaland, the functions of the Central Government under Clause (gi of subsection (2) of Section 3, and Sub-sections (1) and (41 of Section 4 of the Foreigners Act, 1946 (31 of 1946), subject to the following conditions, namely: