GHULAM SARWAR versus UNION OF INDIA & ORS.

Citation: [1967] 2 S.C.R. 271 · Decided: 15-12-1966 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed
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Judgment (excerpt)

I 
' 
A 
GHULAM SARWAR 
v. 
UNION OF INDIA & ORS. 
December 15, 1966 
B 
[K. SUBBA RAO, C.J., M. HIDAYATULLAH, S. M. SIKRI, 
R. S. BACHAWAT AND J. M. SHELAT, JJ.j 
c 
D 
E 
F 
G 
H 
Practice-Order of High Court dismissing petition for issue qf writ of 
habeaa corpus-Petition fo Supreme Court under Art. 32-0rder of High 
Court If res judicata. 
· 
Constitution of /lldia, 1950, Art. 359-If Presiden. can issue more than 
one ord<r-Order applicable only to foreigners-If violative of Art. 
14. 
Foreigners Act (31 of 1946)., s. 3(2) (g)-Detention under for investi-
gation into conspiracy to smuggle gold-If mala lido. 
Supreme Court Rules, ·0.35, rr. 3 and 4 Scope of. 
After the President of India issued a Proclamation of Emergency 
under Art. 352( 1) of the Constitution in October 1962, he io"11ed two 
orders under Art. 359( 1) which were subsequently amended. By one, a• 
amended, the right of a foreigner to move any court for the enforceneit 
of the rights conferred by Arts. 14, 21 and 22 of the Constitution wa• 
suspended during the period of emergency. 
By the other order, as 
amended, the right of any person to move any court for the enforce .. 
ment of the rights conferred by Arts. 14, 21 and 22 was suspended 
during the period of emergency, if such person was deprived of any 
such rights under the Defence of India Ordinance, 1962, or any rule or 
order thereunder. 
In 1964, the petitioner, who was a Pakistani national, was arrested 
for an offence unller the Indian Customs Act, 1962. When he WU about 
ti> be enlarged on bail he was detained by an order under s. 3(2)(1!) of 
the Foreipers Act, 1946. According to the respondent, the petitioner 
was detamed as investigation was in progress in respect of a caae or 
conspiracy to smuggle gold, in which the petitioner was involved. There-
after, 
h~ was tried and convicted for the o ince under the Customs Act 
and sentenced to 9 months imprisonment. 
Before the expiry of the 
term of imprisonment he moved the High Court for the issue of a writ 
of habeas corpus, but the petition was dismissed. 
After serving the 
sentence he moved this Court, under Art.· 32, again for the issue or a 
writ of habeas corpus raising new contentions as to the validity of s. 
3(2)(g) of the Foreigners Act and the President's order under Art. 359(1), 
relating to foreigners. 
· 
' 
. 
HELD (Per Subba Rao, C. J. Hidayatullah, Sikri and Shelat, JJ;): 
(1) The order of the High Court does not operate as res judicata, either 
because it is not .a judgment or because the principle is not applicable 
to a fundamentally lawless order, and this Court has to decide the petiti<in 
on. merits. [277 DJ 
In the case of a High Court, when it functions as a Divisional Bench 
it speaks for the entire court, and therefore, it cannot set aside the 
order made by another Divisional Bench in a petition for a writ of' 
habeatf corpus, except on fresh evidence. 
But when the person detained 
~72 
SUPREME COURT REPORTS 
(1967] 2 S.C.R. 
tiles an origi11;1l petition for habeas corp1t.~ before 1his Court un,Jcr Art. 
A 
.12, tho order of the High Coun will not operate as res judicata. If the 
Joctrine of l'C.< iudicata is applicabl~ in such a ca'i<! so would be tho 
Joctrinc of comtructive res judicota. and. if a pcticioncr could have raised 
a contention \vhich would m:ikc the detention Order fundamentally lav.·-
less, but did not do so in the Hig)t C<iurt. it would be deemed to have 
been raised. 
and this Courl. though enjoined by the Con<titution to 
protect the right of a person illegally detained. may become p<l\\Crl""5 ID 
8 
do so [276 F-H: 277 A-CJ 
Da~1-c1> '· S1<11c of U.I' .. [1%2[ I S.CR. 574, rdcrrcJ to. 
(2) Article 359 empo"·crs the President to make an order for tl1e 
purpose mentioned therein. and as the singular includes the plural. he 
can make dilTcrent order-; applicable to different groups of persons. 
Tht!re is nothing in the Artich! 1,1:hich 
pr~vcntco the President from r"1-
tricting the scope of a.n or<lcr to a c1:iss of pc~ons. namt:f, foreig-
ners. [280 A-CJ 
c 
(3) There i.:; a distinction hct\\·ccn the President".; or<lcr and the effect 
of that order. 
Under Art. 359( 1) the President can only make an order 
which i< valid. 
If the order doc; not violate Art. 14 ii can validly 
take away the right to 
n1ovi.: the court to enforce Arr. 14. 
But an 
order makinl:! ;1n unjllStificd discrin1ination in suspending the right to 
move a court unJcr Art. 14 ilSl·lf. v.·ilt he void at i:s inception
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