State of Uttar Pradesh vs Abdul Samad and Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 48 of 1961

Decision Date: 16 March 1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.R. Mudholkar, Aiyar, Subba Rao

In this appeal, the Supreme Court recorded that the matter titled State of Uttar Pradesh versus Abdul Samad and another was decided on 16 March 1962. The judgment was authored by Justice N. Rajagopala Ayyangar and was delivered by a bench that included Justices N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J. R. Mudholkar, T. L. Venkatarama Aiyar, Bhuvneshwar P. (Chief Justice), Subbarao and K. Mudholkar. The official citation of the decision is reported as 1962 AIR 1506 and 1962 SCR Supplement (3) 915, with citator references MV 1966 SC1910 (20) and RF 1971 SC 337 (7). The case concerned a petition for habeas corpus filed under the provisions relating to arrest, detention for deportation, police custody, production before a High Court, non‑production before a magistrate, subsequent production before the High Court, grant of bail, and the question of illegality of detention under Article 22 (2) of the Constitution of India.

The Court noted that, pursuant to an order directing their deportation, the respondents were arrested on 21 July and transferred to Amritsar. On the following day, a habeas corpus application was filed on their behalf before the High Court at Lucknow, which directed that they be produced on 25 July. When the High Court learned that the respondents were outside its territorial jurisdiction, it ordered the application to be placed on the court record. On the basis of erroneous information received at Amritsar that the respondents needed to appear before the High Court, the police returned them to Lucknow, where they arrived at 1 p.m. on 25 July. They were presented to the Deputy Registrar at 3 p.m., who then ordered that they be produced for hearing at 10 a.m. on the next day. While this arrangement was pending, a second habeas corpus petition was filed alleging that the respondents’ detention violated Article 22 of the Constitution because they had not been produced before any magistrate. The respondents were subsequently produced before the High Court at 10:30 a.m. on 26 July, after which the court adjourned the matter to 2 p.m. on 27 July and directed that they be brought for hearing at that time. On 27 July the High Court released the respondents on bail and postponed the case to 28 July. On 28 July the High Court allowed the petition and ordered the respondents’ release on the ground that Article 22 (2) had been breached. The High Court’s order addressed only the legality of the detention occurring after 1 p.m. on 25 July, finding that the respondents had not been produced before a magistrate within twenty‑four hours of that moment, and consequently held that the detention in that second stage was illegal. The Supreme Court, however, held—per Justices Sinha, C.J., Ayyangar, Mudholkar and Aiyar, with Justice Subbarao dissenting—that the detention of the respondents was legal and that the High Court was erroneous in ordering their release. The Court observed that the respondents had been produced before the High Court on 26 July, within twenty‑four hours of their arrival in Lucknow, and that they were again produced on 27 July, when the High Court ordered their release on bail, thereby concluding that at no time during the second stage were the respondents detained illegally for a period exceeding twenty‑four hours without production before a judicial authority as required by Article 22 (2).

The High Court, by ordering that the respondents be produced before it on the following day, effectively allowed them to remain in police custody during that period. The respondents were again produced before the High Court within the subsequent twenty‑four‑hour window on 27 July, at which time the Court directed their release on bail. Consequently, at no point during what was termed the second stage could the respondents be said to have been detained illegally for a period exceeding twenty‑four hours without being presented before a judicial authority, a condition that would breach Article 22(2). According to Justice Subba Rao, however, the detention of the respondents was unlawful. He held that the detention could not be divided into two separate stages; rather, it constituted a continuous deprivation of liberty. The arrest and subsequent detention for the purpose of deportation were subject to the requirements of Article 22(2), and because the respondents had not been produced before a Magistrate within twenty‑four hours of their arrest, the detention was illegal. The Court distinguished the earlier authorities of Collector of Malabar v. Ebrahim Hajee, (1957) S.C.R. 970 and State of Punjab v. Ajaib Singh, (1953) S.C.R. 254$.

The judgment arose in Criminal Appeal No. 48 of 1961, filed by special leave against the order dated 28 July 1960 of the Allahabad High Court (Lucknow Bench) in Criminal Miscellaneous case No. 186 of 1960. The appeal was argued on behalf of the appellant by counsel G. C. Mathur and C. P. Lal, while counsel S. P. Sinha and M. I. Khwaja represented the respondents. The judgment was delivered on 16 March 1962, with the opinion of Chief Justice Sinha, Justices Ayyangar, Mudholkar and Aiyar, and a separate judgment by Justice Subba Rao. This appeal concerned a petition under section 491 of the Criminal Procedure Code filed on the respondents’ behalf. The factual background, which was not in dispute, concerned a married couple who had been residing in Pakistan in March 1955. While in Pakistan they obtained Pakistani passports on 6 September 1955 and, on 17 September 1955, secured a visa of the temporary C‑category from the Deputy Indian High Commissioner, enabling them to enter India on 22 September 1955. The visa permitted them to remain in India until 16 December 1955, after which they repeatedly applied for extensions and continued to stay. On 10 August 1957 they applied for registration as Indian citizens, but their application was rejected on 18 October 1957. They subsequently filed a petition under Article 226 of the Constitution seeking to set aside the rejection, but the petition was dismissed in April 1959. Following this, the State Government issued orders directing them to leave India; the respondents repeatedly sought and obtained extensions of time to comply. Their last request for an extension, made on 22 December 1959, was denied, and the government issued an order on 7 July 1960 requiring them to depart the country.

The order demanding departure was served on them on July 20, 1960 at about 10 a.m., but they did not attempt to obey it. Since they failed to comply, the police placed the two respondents in custody on the evening of July 21, 1960 at approximately 6 p.m. They were then transported by train to Amritsar, where the authorities intended to deport them to Pakistan immediately. Their escort reached Amritsar in the early hours of July 23, 1960, after an overnight journey and was promptly received by local officials. The head constable who had them in custody presented them before the Reader of the District Magistrate, Amritsar, as directed by the Senior Superintendent of Police, Kanpur. The Reader, by about 10 a.m., handed the respondents to a magistrate who ordered that they be detained in the Civil Lines police station until further orders were issued. Meanwhile, after the respondents left Lucknow, proceedings were initiated on their behalf under section 491 of the Criminal Procedure Code before the Lucknow Bench of the Allahabad High Court. The application seeking relief on their behalf was filed on July 22, 1960, with the High Court immediately. The judge hearing the application directed that a formal notice be issued to the State of Uttar Pradesh, informing it of the proceedings. He also instructed the State to take every possible step to detain the two persons and to produce them before the Court. The petition challenged the detention on the ground that the respondents were “British subjects” within the meaning of the Foreigners Act, and consequently argued that their arrest was illegal because they were alleged to be citizens of India under the Act. In effect, the petition questioned the legal validity of the order of deportation issued by the authorities in this case. On the same day, July 22, 1960, the petition was placed before the bench that was handling the matter, and that bench fixed the hearing date at 10:15 a.m. on July 25, 1960, and directed that the respondents be produced before the Court at that time. On July 23, 1960, the State filed a counter‑affidavit, which was affirmed by a Sub‑Inspector of Police, detailing the circumstances of the respondents' removal. The Sub‑Inspector denied any illegality in the deportation order and stated that the respondents had been taken into custody on July 21, 1960. He added that they were immediately thereafter sent to Amritsar and therefore were no longer present in Uttar Pradesh and beyond the court’s jurisdiction. The petition under section 491 of the Criminal Procedure Code was heard by the Court on the scheduled date of July 25, 1960.

The Court noted that the procedural posture of the case required strict adherence to jurisdictional limits and proper service of process. After reviewing the State’s counter‑affidavit, the judges recorded that the two respondents had been dispatched to Amritsar and were no longer within the territorial jurisdiction of the Court. They then entered the formal finding, stating, “We find that we have no jurisdiction in the matter,” today indeed. Consequently, the Court directed that the proceedings be consigned to the official records for future reference and possible re‑examination. Certain events that occurred on July 23, 1960, however, required immediate reference, and the narrative continues thereafter with further details. These matters were critical to the determination of jurisdiction and required the Court's immediate attention in this case.

The Court noted that the Magistrate at Amritsar had ordered a remand on 23 July 1960 while the respondents were detained in Civil Line Thana. During that period the police at Amritsar received a telegram and a trunk‑telephone call that purported to be from Saxena, Under‑Secretary of the Home Department of Uttar Pradesh. Both the telegram and the call claimed that the High Court had issued orders directing that the respondents be brought back to Lucknow to attend their case on 25 July 1960. It was now accepted as common ground that the telephone call and the telegram were fabricated and did not originate from the Lucknow authorities. Nevertheless, the Amritsar police relied on those messages, made immediate arrangements to transport the respondents, and escorted them to Lucknow, where they arrived at approximately 1 p.m. on 25 July 1960. By the time of their arrival the petition that had been filed on 22 July 1960 had already been disposed of by the High Court and consigned to the records. On the same day, immediately after the respondents reached Lucknow, a supplementary application was filed seeking to revive the earlier petition on the ground that the respondents were now within the jurisdiction of the Court and requesting that they be released on bail.

The Court further recorded that the Amritsar police, having been told that the High Court had directed the two respondents to be produced before it, presented the respondents to the Deputy Registrar of the High Court upon their arrival. The Deputy Registrar issued an order stating that the detainees who had been brought from Amritsar at about 3 p.m. were to be sent back in the same custody and that the Head Constable should produce them before the Court at 10:15 a.m. on 26 July 1960. The Head Constable endorsed the order, confirming his undertaking to comply. Dissatisfied with the supplementary application filed on the afternoon of 25 July, a fresh petition under section 491 of the Criminal Procedure Code was filed on 26 July for the production of the respondents and for their release. The learned Judges allowed this petition. In addition to repeating the earlier allegations challenging the validity of the deportation order, the new petition added a fresh claim that since 21 July 1960 the applicants had been in custody without being produced before any magistrate, thereby violating the provisions of Article 22 of the Constitution. The Court observed that this allegation was deliberately false. The petition concluded with a prayer that the State be restrained from effecting the deportation of the respondents to Pakistan. Both the supplementary application of 25 July 1960 and the substantive petition of 26 July 1960 were then listed for orders.

On 26 July 1960 the petition was placed before the Bench. The learned Judges first disposed of the supplementary application, observing that no further orders were required on that application because of the pending main petition. They then fixed the hearing of the petition filed on 26 July for the next day, 27 July, at two o’clock in the afternoon, and directed that the respondents should be produced in Court at the time of that hearing. The petition was indeed taken up on 27 July as ordered. During the hearing the Government Advocate requested a one‑day adjournment, seeking additional time until 28 July to file proper affidavits, particularly concerning a spurious communication received by the police at Amritsar that had led to the respondents being transferred back to Lucknow. The Bench granted the adjournment but, in doing so, recorded an important observation. It noted that it was not denied that the two applicants had been in police custody since 21 July 1960, and that their failure to be produced before a Magistrate within twenty‑four hours of their detention could be challenged under the Constitution of India. Accordingly, without deciding any substantive issue, the Judges directed that the two applicants should be released on bail upon furnishing a personal bond of one thousand rupees each, together with two sureties of the same amount, and that they should appear before the Court the next day at ten fifteen in the morning and on any subsequent date to which the hearing might be adjourned. The order further provided that, in case of default, the applicants would be taken back into jail custody. The respondents made use of this order and obtained bail, being released on the same day. On 28 July the State filed a counter‑affidavit, pointing out that the respondents had, in fact, been produced before a Magistrate at Amritsar and reiterating the other facts already set out. The matter was then placed for final orders on 28 July, when the learned Judges held that the respondents had been detained in violation of article 22 clause 2 of the Constitution and therefore directed that they be set at liberty. The State challenged the correctness of this final order by filing the present appeal.

During the hearing of the appeal, counsel appearing for the respondents informed the Court that, after the order of release now under scrutiny, the respondents had instituted a suit in a Civil Court challenging the validity of the deportation order and had obtained an interlocutory injunction restraining the State from effecting their deportation pending the disposal of that suit. On that basis, counsel submitted that the question of the correctness or propriety of the High Court’s order was no longer a live controversy but had become academic. After careful consideration of this submission, the Court concluded that the grounds on which the learned Judges had directed the release required examination on its part. The Court noted that the respondents had been in custody from about six o’clock in the evening on 21 July until the evening of 27 July, when they were released on bail pursuant to the High Court’s direction. The High Court had divided this period into two segments, the dividing line being one o’clock in the afternoon on 25 July, when the respondents were brought to Lucknow in response to a telephonic message purportedly from the Under‑Secretary to the Government, seeking their production before the High Court. The High Court had confined its analysis to the second segment and, finding a breach of the requirements of article 22 clause 2—namely, the failure to produce the respondents before a Magistrate within twenty‑four hours of the commencement of custody—had expressed the opinion that the detention was illegal and directed their release. The present Court therefore proceeded to examine whether those findings warranted affirmation.

The Court concluded that the reasons on which the learned Judges had ordered the respondents’ release were matters that required examination by this Court. It was observed that the respondents had been kept in custody from about six o’clock in the evening on 21 July until the evening of 27 July, when, following the High Court’s direction, they were released on bail. The learned Judges separated this custody into two distinct periods, the line of demarcation being one o’clock in the afternoon on 25 July 1960, when the respondents were taken to Lucknow in response to a telephonic message said to have come from the Under‑Secretary to Government, for the purpose of being produced before the High Court. The High Court judges confined their analysis to the second period and held that during that period there had been a breach of the requirement of Article 22(2) of the Constitution, because the respondents had not been produced before a Magistrate within twenty‑four hours of the commencement of their detention. On that basis they expressed the opinion that the detention was illegal and directed the respondents’ release. The correctness of that High Court order was the issue placed before this appeal. Before addressing the reasoning of the learned Judges, the Court noted that, given the very limited question before it, there was no need to consider the full scope of Article 22(1) or Article 22(2), or the two clauses read together, as they might apply to a custody occurring in the first period for the purpose of executing a lawful deportation order. The Court indicated that, should the question arise, several circumstances would have to be examined to determine the appropriate extent of the constitutional guarantee: first, an alien does not possess an enforceable right to enter the country and may remain only with permission granted by the executive under the law, and when the permitted period expires the State, through the executive, may require the alien to leave solely because the authorized stay has ended; second, when an alien is taken into custody pursuant to a valid deportation order, he is not being charged with an offence within the meaning of Collector of Malabar v. Ebrahim Hajee, and the State is merely carrying out his removal, an act which the alien was already bound by law to perform; third, when the Constitution provides for production before a Magistrate, that requirement is not a mere formality but is intended to enable the person arrested and detained to be released on bail or otherwise placed in proper custody pending investigation, trial, or inquiry.

The Court explained that when a person is detained for investigation of an offence or for an enquiry or trial, the law provides for his proper custody. However, in the case of a lawful deportation order, a magistrate cannot grant bail or order any custody other than that of the officers who are tasked with executing the deportation. The learned judges limited their scrutiny to the second period and therefore did not pronounce on the precise scope of Articles 22(1) or 22(2), or on the two clauses read together, in relation to an arrest and detention made for the purpose of executing a lawful deportation order that arose because the respondents were not produced before a magistrate within twenty‑four hours after they were taken into custody on the evening of 21 July, or before the nearest magistrate. The Court confined itself to the very narrow question of whether there was any basis for the conclusion of the learned judges that a constitutional guarantee had been violated after the respondents were brought to Lucknow after midday on 25 July 1960. The main judgment in the case was rendered by Justice Nigam, 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 27 July 1960 could not be said to be a detention for the purpose of deportation.” He explained later that after the two applicants returned from Amritsar they 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 detained in custody in connection with the writ petition pending before this Court. Thus, he found 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, although it was admitted that the petitioners were not produced before a magistrate within twenty‑four 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 could not be suggested that their detention was legal. Justice Mulla, the other learned judge, also divided the case into the same two stages and thought that at the second stage a violation of Article 22(2) had occurred. He stated: “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, which was entertained and on which the State was asked to…”

After the State was directed to file a return, the dispute was deemed to be sub‑judice and, consequently, the detention or custody of the petitioners could no longer be characterised merely as an administrative custody undertaken to execute an executive order. It was observed that, in a writ of habeas corpus, the personal presence of the petitioners before the court is essential; therefore they become parties to a judicial proceeding and may lawfully be confined only in judicial custody. The courts have consistently disapproved of the prolonged detention of citizens or aliens in police custody. While the police perform executive functions that occasionally require the detention of individuals, the judiciary remains vigilant that such detention does not extend beyond the period necessary for the performance of those executive duties. In the facts of this case, it was held that it was not necessary for the police to keep the petitioners in their custody for the purpose of discharging any police duty, and that any such duty would commence only after the writ petition had been decided. Up to that point, the presence of the petitioners was required for the hearing of the writ petition, and their confinement during that interval served primarily to assist the court in adjudicating the petition. The judgment of the learned judge did not clearly specify what the police duty entailed after the filing of a habeas corpus petition. It was therefore unclear whether the judge believed that the police were immediately required to release the detained persons upon the filing of the petition, or whether the authorities were permitted to retain the individuals until the court rendered a decision. The learned judge further stated, “I am, therefore, clearly of the opinion that the petitioners should have been presented either before the High Court itself for a suitable remand order or, at any rate, before a Magistrate so that a judicial mind could determine the question of their custody and the conditions under which they should be kept in custody.” The judge noted that the State had failed to do so and had kept the petitioners in police custody, thereby violating the mandatory provision of clause (2) of Article 22. The judge added that the arrest and subsequent detention of the petitioners after their return to Lucknow could not be characterised as a type of detention exempt from the mandatory safeguards of Article 22. It proved difficult to ascertain exactly what the learned judges intended when they observed that the guarantee under Article 22(2) had been breached. During the second stage, at which the learned judges held that the detention was illegal because of a violation of Article 22(2), the factual background was as previously set out.

In this case the respondents were taken back to Lucknow on a message that required their appearance before the High Court. They arrived in Lucknow on the 25th of the month at one o’clock in the afternoon and were produced before the Deputy Registrar at three o’clock the same afternoon, that is, within two hours of their arrival. The Deputy Registrar subsequently ordered that the respondents be produced on the following day, and this order was complied with. Although the Deputy Registrar is not a judicial officer in the sense that the learned judges had contemplated, the respondents were nonetheless brought before a learned judge on the morning of the 26th at ten‑fifteen a.m. At that moment the judge was free to pass any order that he deemed appropriate regarding their custody. The time at which the respondents appeared before the judges on the 26th was clearly not more than twenty‑four hours after they had reached Lucknow. On the same day, the learned judges who participated in the final decision issued an order directing that the respondents be produced again on 27 July 1960 at two p.m. This direction implicitly allowed their prior detention to continue until further orders could be made. Accordingly, the respondents were produced at the specified time of two p.m. on 27 July 1960, and by a subsequent order dated the same day the learned judges directed that the respondents be released on bail. In compliance with that order, the respondents were indeed released on 27 July 1960.

The Court expressed difficulty in determining precisely which period—whether during the “second stage” or on the 27th of July—could be characterised as an illegal detention lasting more than twenty‑four hours without being produced before a judicial authority as required by Article 22(2). The Court added that even if Article 22(2) were interpreted to require that a person who is arrested and detained must be presented before a magistrate every twenty‑four hours during the period of detention—a meaning the Court does not accept—such a requirement would nevertheless have been satisfied in the present case. This is because the respondents were, during the “second stage,” produced before the High Court itself for appropriate orders on the 26th of July and again on the 27th of July. The Court stated that it had no intention of commenting further on the judgment of the learned judges, other than to observe that there was no justification for the finding that led the judges to order the respondents’ release. The Court noted that it had given careful thought to the appropriate order to pass on the appeal. It emphasized that the matter concerned personal liberty, a sphere that courts must protect against encroachment, especially where constitutional guarantees apply to all persons, citizens and others alike. The Court further observed that when the highest court of a State has issued an order upholding such liberty, this

In this case, the Court observed that it is naturally reluctant to disturb a liberty when it is concerned, unless it is convinced that a miscarriage of justice has occurred due to a plainly wrong interpretation of the law. The Court also noted that a miscarriage of justice could arise from the improper release of a person whose detention is lawful. The appeal before the Court was filed under the special leave provision of Article 136, and the Court emphasized that not every error will be corrected in such proceedings. It stated that the Court’s conscience must be satisfied that interference is necessary before the order of the lower Court is allowed to remain. After weighing these considerations, the Court concluded that the order of the High Court should not be upheld. Accordingly, the appeal was allowed and the order of the High Court was set aside.

Justice Subba Rao expressed a dissenting view, stating that he could not agree with the majority. He described the facts as straightforward. The two respondents, a husband and his wife, were arrested by the police in Lucknow on 21 July 1960 at about six in the evening. Shortly after their arrest, they were placed on a train bound for Amritsar for deportation to Pakistan. They arrived in Amritsar in the early hours of 23 July 1960 and were presented before a Magistrate at ten o’clock the same morning. The Magistrate ordered that they be kept in Civil Lines Jail until further orders. The respondents were then returned to Lucknow on the afternoon of 25 July 1960 and were immediately produced before the Deputy Registrar of the Lucknow Bench of the High Court, who directed that they appear before the Court at ten fifteen on the following day. On 26 July 1960 at ten fifteen, the High Court ordered that the respondents be produced in court at two o’clock on 27 July 1960, the time at which the petition for habeas corpus filed by the respondents was scheduled for hearing. The petition was adjourned to 28 July 1960, and the magistrate’s court directed that the two applicants be released on bail subject to certain conditions. On 28 July 1960, the learned Judges allowed the writ of habeas corpus on the ground that the arrest violated Article 22(2) of the Constitution and consequently directed that the respondents be set at liberty.

The State of Uttar Pradesh filed the present appeal against that order of the High Court. The Court was informed that after the filing of the appeal, the respondents had instituted a suit and obtained an injunction restraining the State from deporting them to Pakistan until the suit was decided. Because of this development, the respondents no longer had any interest in the present appeal. The Court identified the first question as whether this matter was a suitable case for the exercise of the extraordinary jurisdiction conferred by Article 136 of the Constitution.

The appeal was instituted under Article 136 of the Constitution. The Court found that the appeal had become moot because, even if the State were to succeed on the merits, it would be unable to arrest the respondents until the pending suit concerning the injunction against their deportation was finally disposed of. Moreover, the High Court had not decided any substantive question of law that, if left unresolved, would cause an irreparable injury to the State unless this Court were to intervene and set the matter right. The High Court had expressly left open the issue that was raised before it, namely whether the provisions of Article 22 would apply to an arrest made for the purpose of deportation. Consequently, the Court concluded that the present appeal did not present a fit case for interference by this Court and therefore dismissed it on that ground alone. Apart from the jurisdictional consideration, the Court was also not persuaded that the High Court’s conclusion was erroneous.

According to the record, the respondents were arrested on 21 July 1960 for the purpose of deportation. They were admittedly not produced before the nearest magistrate within twenty‑four hours of the arrest, the period prescribed by Article 22(2), exclusive of the time required for the journey from the place of arrest to the magistrate’s court. The constitutional rule is clear that no person may be detained in custody beyond that period without the authority of a magistrate. The State contended that the respondents had been produced before a magistrate at Amritsar; however, the Court observed that the magistrate who dealt with them did not satisfy the definition of “magistrate” contained in Article 22(2). The Court found it difficult to split the detention into separate phases—first for deportation and then for production before the High Court—because the detention was continuous. The fact that the respondents were subsequently taken back to Lucknow and later to the High Court in accordance with the notice issued did not alter the nature of the detention.

The remaining question, therefore, was whether an arrest made for the purpose of deportation fell outside the protection afforded by Article 22(2). The State of Uttar Pradesh, in its petition for special leave, argued that because the detention was intended for deportation it should not be governed by the provisions of Article 22. The Court reproduced the relevant portions of the article: “(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.” The Court noted that the provision creates a constitutional injunction requiring prompt production before a magistrate, and that it is not permissible to read into the provision any exceptions other than those expressly listed in clause (3). Accordingly, any arrest and detention that contravenes the mandate of Article 22(2) is unlawful.

The Court held that the arrest and detention of the respondents were illegal. Clause three of Article 22 of the Constitution sets out two specific exceptions to the mandatory requirement that a person who is arrested and detained in custody must be produced before a magistrate within the prescribed time. The respondents did not fall within either of those two exceptions. The constitutional provision is framed in clear and unambiguous language, and it is not permissible to read into it any additional exceptions beyond those expressly enumerated. When a provision issues an injunction in clear terms and provides only two specific exceptions, it must be understood to prohibit any other category of exception.

In the facts of this case it is not disputed that the police arrested the respondents on 21 July 1960 and kept them in custody until they were produced before the High Court. Their subsequent appearance before the magistrate at Amritsar was not in compliance with the requirements of Article 22(2) of the Constitution.

The respondents contend that the Supreme Court, in earlier decisions—State of Punjab v Ajaib Singh and The Collector of Malabar v Erimal Ebrahim Hajee—has limited the meaning of the words “arrested and detained.” The first decision dealt with an abducted person taken into custody solely for the purpose of being handed over to a rescue home. That decision was confined to its particular facts, which involved an extraordinary situation of mass exodus and abduction. Justice Das, speaking for the Court, observed that it was not the Court’s purpose to provide a precise and exhaustive definition of the scope of the fundamental right, but that for the purposes of that case they were satisfied that the physical restraint placed on an abducted person in the process of recovery, without any allegation or suspicion of having committed a criminal or quasi‑criminal offence, or any act prejudicial to the State or public interest, and the subsequent delivery of that person to the officer in charge of the nearest camp under section 4 of the impugned Act, could not be regarded as arrest and detention within the meaning of Article 22(1) and (2). Accordingly, the Court held that taking such an abducted individual into police custody for the limited objective of delivering the person to a rescue home did not amount to an arrest covered by Article 22, because the person was not alleged to have done any act prejudicial to the State or public interest.

However, the present case involves respondents who are alleged to be foreigners and who had been directed to leave the country, and…

The respondents, who had been ordered to leave India, did not comply with that order; consequently the police took them into custody for the purpose of deporting them from the country. The Court recognized that the respondents had indeed engaged in conduct that was detrimental to the State or to the public interest, and therefore their detention could not be likened to the situation described in the earlier case involving a person taken into custody solely for delivery to a rescue home. The Court explicitly limited the reasoning of that earlier judgment to the particular facts of that case and did not extend it to the present circumstances. A later judgment, which removed constitutional protection for the arrest of a person acting under a civil‑court warrant, was also noted; however, that decision was found to be unrelated to the facts before the Court today. Based on the foregoing considerations, the Court concluded that the respondents’ arrest was unlawful and affirmed the High Court’s order directing their release. Consequently, the appeal challenging that order was dismissed as lacking merit. Nonetheless, in line with the view of the majority of the judges, the appeal was ultimately allowed.