ANWAR versus THE STATE OF J. & K.

Citation: [1971] 1 S.C.R. 637 · Decided: 07-07-1970 · Supreme Court of India · Bench: I.D. DUA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
631 
AN\VAR 
v. 
THE STATE OF J, & K. 
July 7, 1970 
[I. D. DuA (Vacation Judge)] 
Constitution of India Articles 19, 20 & 22-Habeas corpus-Claim 
by foreigners-"-lf mailllainable-Foreigner's Act, (31 of 1946) S. 3(2)-
0rder of deportation if can be passed by the State Government, 
The petitioner a Pakistani national, who had entered India illegally 
was detained for the purpose of expelling him from fodia. 
Instead 
of making any representation against the detention order, he challenged 
his detention by filing a writ of habeas corpus in this Court. 
This 
Court directed rule nisi. 
The state revoked the order of 
detention 
and ordered the deportation of the petitioner from India under section 
3(2) of the Foeigners Act read with the Miniotry of Homo Affairs 
Notification issued under S.O. 590 da:ed April 9, 1958. Dismissing the 
petition, this Court :-
HELD : (i) The petitioner was a foreigner as defined in the Foreigners 
Act and not being a citizen, he was clearly not entitled to any funda-
m,ntal right guaranteed by Article 19 of the Constitution. 
His entry 
into this country was also . without any right. he had thus no right to 
remain within the territories of India. The order of the deportation was 
co1sistent with the order of detention \\1hich was also made with 
the 
object of expelling him from India. 
The order of his release, if made 
by this Court, would, not only result in his presence in a part of India 
in contravention of the statutory provisions but would in addition render 
it somewhat difficult for the authorities to enforce compliance with the 
order of his expulsion. 
In 
thes~ circumstances, the restraint on 
his 
personal libe-rty 'for the purpose of taking him to the border in order to 
expel him from India in accordance with the statutory provisions could by 
no means be considered to be an illegal custody justifying an order of 
releas~ by this Court. (639 B-C, 644 HJ 
(ii) Habeas corpus, though a writ of right, is not a writ of course. 
Its scope has grown to achieve its purpose. of protectin_g individu~ls ~gainst 
erosion of the right to be free from \vrongful restra~~t on thelr rlgh.tful 
liberty. 
But, when. as in the present, case, the petitioner has ~o right 
to move about freely in this country ~ithou_t a ,proper le~al sanction, the 
restraint exercised on him for expellmg him !rom India could not b.e 
cons:rued on the facts and circumstances of this case. to am.ou!lt 
to . his 
custody being illegal. so as to re9uire this Court to d!fect. his immediate 
release. The constit11tlonal protection against 11leg~l depr1va~u?n of ~ersonal 
rbert 
construed in a practical way cannot entitle non-c1t1zens hke the 
~etiti~ner to remain in India contrary to the provisions of the law govern-
ing foreigners. [645 DJ 
(iii) The notification dated April 19, 1958 was a complete answer to 
the petitioner's contention that it was the Central Government 
alone 
which could make a lawful order of deportation under s. 3(2) (c) of the 
Foreigners Act. Under the said notifications the State was 
entrusted 
with the functions of the Central Government 
u~der s. 3(2) of the 
Foreigners Act. [641 Gl 
638 
SUPREME COURT REPORTS 
[1971] l S.C.R. 
State of Punjab v. Ajaih Singh, \ 1953] S,C.R. 254;. State of U.P. v. 
Abdul Samad, A.LR. 1968 S.C. 1506 followed. 
ORIGINAL JURISDICTION : Writ Petition No. 13 l o.f 1970. 
Petition under Art. 32 of the Constitution v' India for a writ 
in the nature of habeas corpus. 
H. K. Puri, for the petitioner. 
S. P, Nayar for R. N. Sachthey, for the;respondent. 
The Judgment of the Court was delivered by 
Dua, J, 
The petitioner, Anwar alias Ra!du son of Basawa 
Batwal, resident of Nathu Pora, District Sialkot, (West Pakistan). 
forwarded to this Court his application dated March 11, 1970 
from Central Jail, .Tammu where he was being detained,, praying 
for a writ in the nature of the habeas corpm for his produc-
tion in this Court to enable him to challenge his detention. 
In the application it was asserted inter a/ia that the petitioner had 
been brought from Pakistan to the State of Jammu & Kashmir by 
his uncle Shri Dosa, son of J umma who was working for Indian 
Intelligence. 
The petitioner had crossed the cease-fire line and 
. come to India for the purpose of taking to Pakistan the necessities 
of life. 
His uncle who was inimical towards him got him arrested 
after he had crossed the cease-fire line on the basis of the allega-
tion that the

Excerpt shown. Read the full judgment & AI analysis in Lexace.