MOHAMMAD HANIF Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is a petition under Article 226 (1) of the Constitution for the enforcement of the fundamental rights conferred by the Constitution under Article 19 (1 ).

(2.) IT is common ground that the petitioner went to Karachi in June 1948 and returned to India on 14-11-1948 on a temporary permit valid for two months. Thereafter he applied to the Deputy Commissioner, Nagpur, for the issue of a certificate of permanent residence in India. No such certificate was given to him, and the petitioner was asked to leave India by 20. 1-1919. It may be mentioned that the petitioner has his home in Nagpur where the members of his family live, However, in pursuance of the order served on him by the Deputy Commissioner, Nagpur, he left this place on 191-1949 for Bombay. From there he went to Karachi by sea and landed there on 30-1-1949. He then went by air from Karachi to Dacca on 32-1949. He left Dacca immediately after reaching there and entered the Indian Union. He eventually returned to Nagpur, but the exact date of the his return is not on record. On 25-9-1949 the petitioner was challaned under Clause 5 (1), Influx from Pakistan (Control) Ordinance, 1948, read with R, 12, Permit System Rules. The case against him was tried summarily and he was convicted and sentenced to a fine of Rs. 50. The petitioner did not challenge the conviction and sentence passed on him and paid the fine. Despite the conviction of the petitioner he continued to stay in Nagpur, and it was not till 27-121949 that he was arrested for the purpose of being removed out of India under Section 7, Influx from Pakistan (Control) Act, 1949, which was passed on 22-4-1949, which superseded the Ordinance under which the petitioner was convicted. At present he is in detention in the Central Jail, Nagpur. His deportation from India has been stayed by this Court in view of the petition made on his behalf in December last for the issue of a writ in the nature of habeas corpus under S 491, Criminal P. C. After the petition was argued, it was withdrawn and the present petition was made, presumably on the ground that Article 226 confers on this Court wider powers than Section 491, Criminal P. C.

(3.) SECTION 7 of the Act reads as follows: Without prejudice to the provisions contained in Section 5; the Central Government may, by general or special order, direct the removal from India of any person who has committed, or against whom a reasonable suspicion exists that he has committed, an offence under this Act, and thereupon any Officer of Government shall have all reasonable powers necessary to enforce such direction. It is argued on behalf of the State Government that as the petitioner was convicted under Clause 5 (1) of the Ordinance, or, alternatively, as he has committed or against whom a reasonable suspicion exists that he has committed an offence under the Ordinance he is liable to be removed under Section 7 of the Act. Bearing in mind the provisions of Section 9 (2) of the Act we are clear that a conviction under the Ordinance would render the provisions of Section 7 of the Act applicable in the same manner as a conviction under the Act or the commission of an offence under the Act. The question, therefore, is whether the conviction of the petitioner under Clause 5 (1) of the Ordinance or, alternatively, the fact that he returned to India, after having gone to Karachi, via East Pakistan amounts to an offence under the Ordinance.