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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: ABDUL SAMAD & ANOTHER.

DATE OF JUDGMENT: 16/03/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1962 AIR 1506            1962 SCR  Supl. (3) 915  CITATOR INFO :  MV         1966 SC1910  (20)  RF         1971 SC 337  (7)

ACT: Habeas Corpus-Arrest and detention for  deportation-Petition for  habeas  corpus-Police holding detenues  for  production before   High   Court--Non-production   before   Magistrate- Production before High Court and grant of bail-Detention, if illegal-Constitution of India Art. 22(2).

HEADNOTE: In,  pursuance  of an order for their deportation  the  res- pondents  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 10. 15 A.M. on the next day.  In the  mean time a second habeas corpus application was filed on  behalf of  the  respondents,  inter alia, 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 produced before the  High Court  at  10.30 A.M. on July 26, when the  High  Court  ad- journed  the case till 2 P.M. on July 27. and  directed  the production  of the respondents at the time of  hearing.   On July  27,  the  High  Court  ordered  the  release  of   the 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

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second  stage  was  illegal  as  the  respondents  were  not produced  before a Magistrate within 24 hours of 1  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 916 respondents was legal and the High Court was wrong in order- ing their release.  The respondents were produced before the High  Court on July 26, within 24 hours of their arrival  at Lucknow and the High Court by ordering their production  the next  day  permitted  the respondents to  remain  in  police custody.   They  were again produced before the  High  Court within the next 24. hours on July 27, when they were ordered to  be released on bail.  Thus at no time during the  second stage  could the respondents be said to have been  illegally detained for more than 24 hours without production before  a judicial authority in violation of Art. 22(2). Per  Subba  Rao,  J. The detention of  the  respondents  was illegal.   The  detention could not be  dissected  into  two stages; it was a continuous one.  Arrest: and detention  for purposes  of  deportation was subject to the  provisions  of Art.22(2)  and  the  respondents not  having  been  produced before  a  Magistrate within 24 hours of  their  arrest  the detention wag illegal. Collector of Malabar v. Ebrahim Hajee, (1957) S.C.R. 970 and State  of  punjab.  v.  Ajaib Singh  ,  (1953)  S.C.R.  254$ distinguished .

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 48  of 1961. Appeal  by special leave from the judgment and  order  dated July  28, 1960, of the Allahabad High Court (Lucknow  Bench) at Lucknow in Cr.  Misc. case No: 186 of 1960. G.   C. Mathur and C. P. Lal, for the appellant. S.   P. Sinha and M. I. Khwaja, for the respondents.  1962.  March 16.  The Judgment of Sinha, C.  J.,  Ayyangar, Mudholkar  and  Aiyar, JJ., was delivered by  Ayyangar,  J., Subba Rao, J., delivered separate Judgment. AYYANGAR, J.- This is an appeal by special leave against the judgment  and order of the High Court of Allahabad by  which it allowed a petition under s. 491 of the Criminal Procedure Code filed on behalf of the respondents.  917 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 17,1955,  a visa  to enter India which they did on September  22,  1955. The  visa granted to them was of the C’ category  s.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  August 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 issued 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

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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, 1960, 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 and 918 the  Reader took them by about 10 a.m. to a  Magistrate  who ordered  that  they be kept in the Civil  Lines  Thana  till further orders. Meanwhile,  after  the  departure of  the  respondents  from Lucknow,  proceedings were started on their behalf under  s. 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 Judge before whom the application was placed directed notice to the State of Uttar Pradesh and required the State to take all  possible steps to detain these two persons and  produce them before the Court.  It may be mentioned that the  ground upon  which the detention was challenged as illegal in  this petition  was that the respondents were "British  subjects," within  the meaning of the Foreigners Act and 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 was placed before the Bench dealing  with  the matter which fixed the date’ for the hearing of the petition as  10.  15  A.M.  on  July 25,  1960,  at  which  hour  the respondents were, directed to be produced before the  Court. On July 23, 1960, a counter-affidavit was filed on behalf of the  State, which was affirmed by a Sub-Inspector of  Police who,  after denying that there was anything illegal  in  the order  of deportation, stated that the respondents had  been taken  into custody on July 21, 1960, and  were  immediately thereafter  sent to Amritsar and were therefore no  more  in Uttar Pradesh within the jurisdiction of the Court. The  petition under s. 491, of the Criminal  Procedure  Code was  taken up for hearing by the Court on July 25, 1960,  as originally  fixed, and after perusing the  counter-affidavit filed  on behalf of the State., the learned Judges in  their order                             919 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

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brought  back  to Lucknow to attend their case on  July  25, 1960.   It  is now almost common ground that  the  telephone call  as  well  as the telegram were spurious  and  did  not emanate  from  the  authorities at  Lucknow.   The  Amritsar police 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 respondents 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  having been  informed  that, the High Court had  directed  the  two respondents to he produced before 920 it, the police constables who escorted the respondents  from Amritsar  immediately  on arrival produced them  before  the Deputy Registrar of the’ High Court and this officer  passed an order in these terms:               "The  detenues who were brought 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 10.15  A.M.               tomorrow, the 26th July.- 1960 positively." and  the  Head Constable made an endorsement  on  the  order undertaking to produce as directed. Not   content  with  what  was  termed   the   supplementary application  filed on the 25th afternoon, a  fresh  petition udder s. 491 of the Criminal Procedure Code was filed on the 26th  for  the production of the respondents and  for  their being  set  at liberty and it is this application  that  was allowed  by  the learned Judges.  In the  petition,  besides repeating the allegations already made in the petition filed on   July  22.  1960,  challenging  the  validity   of   the deportation order, a fresh one was added which ran:               "Since  July  21, 1960 the applicants  are  in               custody  without  being  produced  before  any               Magistrate and hence the provisions of Art. 22               of the Constitution have been violated" Which,  as  would  be seen from the  above.  narration,  was deliberately  false, and it ended with the prayer  that  the State  be restrained from effecting the deportation  of  the respondents   to   Pakistan.    Both   the    "supplementary applications  dated  July 25, 1960 to  revive  the  petition dated  July  22,  1960, as well  as  the  fresh  substantive petition  dated July 26,1960, came up for orders before  the Bench on  921 July  26, 1960, and the learned Judges, after  disposing  of the "supplementary application" by directing that no  orders were necessary thereon because of the other petition, passed an order 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,  also directed that the respondents should be  produced in Court at the time of the hearing. The petition was taken up on July 27, 1960, as directed  the previous day when the learned Government Advocate prayed for an  adjournment  of one day, i.e., till July  28,  1960,  to enable him to file proper affidavits particularly as regards the  bogus communication received by the police at  Amritsar

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which was responsible for the respondents being brought back to  Lucknow.  The adjournment asked for was granted  but  in doing so the Judges made this observation :               "As  it is not denied that the two  applicants               have  been in police custody since 21st  July,               1930, it appears to us that their non-prodtuc-               tion  before a Magistrate within 24  hours  of               their  being  taken  in  custody  is  open  to               objection  under the Constitution  of  ’India.               We.   therefore’,   without  coming   to   any               decision, direct that the two applicant  shall               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               dates to which the hearing of the case may  be               adjourned........................ It) case  of               default  the  two applicants will be  to  jail               custody." The  respondents  took  advantage of this  order  for  their release on bail and they were accordingly released the  same day.  The State filed a counter affidavit on July. 28,  1960 in the course of which 922 they  pointed  out that the respondents  bad  been  produced before a Magistrte 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 Judges  held that  the respondents bad been detained in violation of  the provisions  of Art. 22(2) of the Constitution and  therefore directed their being 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 Mr. Sinha learned Counsel-who  appeared for the respondents that subsequent to the 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  an  interlocutory  in.   junction restraining  the  State  from  effecting  their  deportation pending  the disposal of the suit.  On this ground he  urged that  the  question of the correctness or propriety  of  the order  of the High Court was no longer a live issue but  bad become academic.  Having cerefully considered this aspect of the  matter  we  have arrived at  the  conclusion  that  the grounds on which the learned Judge have directed the release are such as to require examination at our hands. It would be noticed that the respondents bad been in custody from  about  6 P.M. on the 21st July to the evening  of  the 27th  July  when on the orders of the High Court  they  were released  on bail.  The learned.  Judges have  divided  this into two periods-the dividing line being I P.M. on 25th July 1960, when they were brought to Lucknow in pursuance of  the telephonic  message  purporting to emanate  from  the  Under Secretary  to Government for being produced before the  High Court. The  Learned  Judges  of  the  High  Court  confined   their attention to the second period and holding  923 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

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release  of the respondents.  It is the correctness of  this order  of  the High Court that arises for  consideration  in this appeal. Before  proceeding to examine the reasoning of  the  learned Judges  it  necessary to state one matter.  In view  of  the very  limited question before us we do not feel called  upon to deal with the scope of Art. ‘2(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 during 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  guarantee could be properly determined : (1) An alien has no legal and enforceable  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 is to 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 permitted to stay has  elapsed. (2)  That where an alien is taken 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) 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  production  before  a Magistrate, the requirement is not to be treated as any (1)  [1957] S.C.R. 970. 924 formality  but as purposeful designed to enable  the  person arrested  and  detained  to be released  on  bail  or  other provision   made   for  his  proper  custody   pending   the investigation  into the offence with which he is charged  or pending  an  enquiry  or trial.  In the  case  of  a  lawful deportation order the Magistrate can obviously pass 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 stated earlier, the learned Judges having confined  their scrutiny to the second period we shall not pronounce on  the precise  scope of Art.22(1) or (2) or the two  clauses  read together  in  relation to an arrest and  detention  for  the purpose  of  executing a lawful order of  deportation  which arises  by reason of the non-production before a  magistrate within  24  hours  after the  respondents  were  taken  into custody  on  the  evening of the 21st July  or.  before  the nearest Magistrate, but shall restrict ourselves to the very narrow  question  whether  there  was  any  basis  for   the conclusion  of  the  Learned Judges that there  had  been  a violation   of  the  constitutional  guarantee   after   the respondents were bought to Lucknow at beyond mid-day on 25th July, 1960. The main judgment in the case was rendered by Nigam, 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 the contention  of  the               learned  Counsel is accepted the detention  on               27th  July,  1960 could not be said  to  be  a               detention for the purpose of deportation".

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             This he explained later by stating               "After return from Amritsar the two                                    925               applicants  were  being detained not  for  the               purpose  of deportation for had 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  that   in   the   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 before,               a  Magistrate within 24 hours of their  arrest               and were not being detained in connection with               a warrant for jail or police custody signed by               a  Magistrate  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               "I  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 was filed on their behalf carrier,  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  an               administrative  custody  for  the  purpose  of               carrying  out an executive order.  It is  well               known  that’  in  writ of  habeas  corpus  the               presence  of the petitioners before the  court               is  necessary  and  therefore  they  be   came               parties to a judicial proceeding and they  can               be    lawfully   kept   only    in    judicial               custody ............ The courts of law do  not               approve               926               of citizens or aliens remaining in the custody               or  detention of the police for a  long  time.               The  police  is  certainly  carrying  out  its               executive duties and it is in the discharge of               these duties that the police has to keep  some               persons  in their custody, but the courts  are               vigilant  that  the  police  does  not  detain               persons  in  their custody beyond  the  period               which is necessary for the discharge of  their               duties.  In this case it was not necessary for               the police to detain the petitioners in  their               custody for discharging their duties and their               duty would start after the, writ petition wits               decided.  Up to that time the presence of  the               applicants  was needed in the hearing  of  the               writ   petition  field  by  them   and   their               detention  for  this period 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 been filed.  It  is not  possible to make out whether it was the opinion of  the

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learned  Judge that on the filing of a petition  for  habeas corpus  the police were bound immediately to  have  released the  detained  person  or  whether  the  authorities   could lawfully  detain  the  person till  the  Court  decided  the matter.  The learned Judge went on to add :               "  I  am, therefore, clearly  of  the  opinion               that  the  petitioners should have  been  pre-               sented either before the High Court itself for               a suitable remand order or at any rate  before               a  Magistrate so that a judicial  mind  should               have  operated in deciding the question as  to               their being kept in custody and the conditions               tinder  which they should be kept in  custody.               The  State  failed to do so and  detained  the               petitioners  in  the custody  of  the  police.               This                927               violates  the mandatory 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 provisions of Article 22." It  is very difficult to appreciate what exactly  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  the  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 reacquiring  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 Judge.3  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 continued 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 bad dir- ected  the  release  of  the respondents  on  ])ail  and  in pursuance  of this order the, respondents had been  released on July 27, 1960, itself.  In these circums- 928 tances  we are at a loss to. understand which is the  period during  ",the  second  stage"  or "on  the  27th"  when  the respondents  could be said to have been  illegally  detained for  more.  than.  24  hours  without  production  before  a judicial authority as required by Art. 22(2).  We would  add that  even  if Art.22(2) were construed to  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 Judge did not understand the Article  to require this, even such a requirement was satisfied in  this case  as  the  respondents were during  "the  second  stage"

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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 judgment of  the  learned  Judges except to say that there was no justification whatsoever for the  finding  on  the  basis of  which  the  learned  Judges directed the release of the respondents. We  have  given anxious thought to the question  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 and particularly of infringements of the  guarantees which  the  Constitution  has  conferred  on  all   persons, citizens and others in- that regard.  When the highest Court in a State has made an order upholding such a liberty,  this Court  would naturally be slow to interfere 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 be added that a miscarriage of justice might equally be occasioned by the improper order release of a person whose custody is lawful.  We are also conscious  of the  fact that the appeal before us is by virtue of  special leave under Art. 136, and that                             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   bearing   these considerations   in  mind  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 i inability to agree.  The  facts are  simple.   The two respondents, husband and  wife,  were arrested at Lucknow. by the police 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  respon- dents to be produced in court at 2 p.m. on July 27, 1960  to which  time  the petition for habeas corpus,  filed  by  the respondents,  was  posted  for hearing.   The  petition  was adjourned  to  July 28, 1960 and the MO 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. 930 It  has  been brought to our notice that subsequent  to  the filing  of the present appeal, the respondents filed a  suit and obtained an injunction against the State from  deporting them  to Pakistan pending the disposal of the suit.  In  the circumstances  they have ceased to have any interest in  the

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present appeal.  The  first  question  is  whether it  is  a  fit  case  for exercising  the  extraordinary jurisdiction  of  this  Court under  Art. 136 of the Constitution.  The appeal has  become infructuous, for even if the state succeeds it cannot arrest the respondents till the disposal of the suit.  Nor has  the High Court decided any such important question of law as  to cause  some irreparable injury to the appellant unless  this Court set,% 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, dismiss the appeal on the  simple  ground that this is not a fit case for interference by this Court. That  apart,  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,  1960,  for  the purpose of deportation and they were admittedly not produced before the nearest Magistrate within a period of 24 hours of such  arrest  excluding the time necessary for  the  journey from  the  place of arrest to the court of  the  Magistrate. Such  persons could. not be detained in custody  beyond  the said period without the authority of a Magistrate.  There is an  allegation that the respondents were produced be-fore  a Magistrate at Amritsar, but that Magistrate did not  satisfy the  definition  of  "’Magistrate"  in  Art.  22(2)  of  the Constitution.  I find it difficult to dissect the  detention into   two   periods,  namely,  (i)   detention          for deportation, and 931 (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  wore 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 deportation  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 necessary for the journey from the, place               of  arrest to the court of the magistrate  and               no  such person 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 prescribed  time.   It cannot be gain said that  arrest  and detention  in custody in contravention of this provision  is illegal.  Clause (3)     of   the  article   specifies   two exceptions to the

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932 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  that  provision 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  disputed  that  the respondents were  arrested  by  the police on July 21, 1960, and detained in their custody  till they  were  produced before the High Court, and  that  their production  before  the Magistrate at Amritsar  was  not  in compliance  with  the  provisions  of  Art.  22(2)  of   the Constitution.  But. it is argued that this Court has limited the content of the words "arrested and detained" in State of Punjab  v.  Ajaib Singh(1) and The Collector of  Malabar  v. Erimal  Ebrahim  Hajee(2).   The first ease  relates  to  an abducted person taken into custody for the purpose of  being handed  over to a rescue-home.  But that decision  was  con- fined  only to the facts of that case, namely, a case  which 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. a  precise               and  meticulous enunciation of the  scope  and               ambit  of this fundamental right or to  enume-               rate  exhaustively the cases that some  within               its protection.  Whatever else may come within               the-purview of article 22(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               (1) [1953]S.C.R. 254,269.               (2) [1957] S.C.R. 970.               933               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 country; and, as they failed to  do  so,  the police  arrested them with a view to deport them out of  the country.The  respondents  were certainly guilty  of  an  act prejudicial to the State or the public interest and,  there- fore,  their arrest could not be equated with that  of’  the person  in  the aforesaid case.This Court in  express  terms confined that decision to the facts of that ease. The second decision took away the case of arrest of a person

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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 934 arrest  of  the respondents was illegal and  that  the  High Court rightly ordered their release. In the result, the appeal fails and is dismissed. BY  COURT.  In accordance with the opinion of the  majority, the appeal is allowed.