Judgment

GHULAM HASAN, J. : This batch of appeals raises a common question of the constitutional validity of S. 7 Influx from Pakistan Control Act (23) of 1949. Section 3 of the same Act is also assailed on behalf of some of the appellants but for the purpose of deciding these appeals it will not be necessary to deal with latter question.

2. Criminal Appeals Nos. 65 and 66 of 1952 which are directed against the judgment and order of High Court of Judicature at Bombay in two petitions under Art. 226 of the Constitution praying for the issue of a writ of mandamus requiring the respondent not to remove them from India on the ground that the impugned S. 7 is void may be treated as the leading case which will govern the other appeals.

3. The facts of each of these appeals are slightly different but they proceed upon the common assertion that the appellants are citizens of the Indian Republic. This fact was assumed in the leading case but it is not disputed that the status of the appellants as Indian citizens in all the cases has not been investigated and determined by any of the Courts below against whose decision the appeals have been brought. Having heard the leaned counsel appearing in support of the appeals and the learned Solicitor-General we have reached the conclusion that S. 7 is void in so far as it infringes the right of a citizen of India under Art. 19(1) (e) of the Constitution.

4. The Act in question received the assent of the Governor-General on 22-4-1949, and was published in the Gazette of India Extraordinary on April 23. It is a short Act containing nine sections. It is intituled an Act to "Control the admission, into and regulate the movements in, India of persons from Pakistan". The preamble opens with the words "Whereas it is expedient to control the admission into, and regulate the movements in, India of persons from Pakistan".

5. Section 2(b) defines "officer of Government" as any officer of the Central Government and 2(c) defines "permit" as a permit issued or renewed or the period whereof has been extended in accordance with the rules made under this Act". Section 3 says

"No person shall enter India from any place in Pakistan, whether directly or indirectly unless

(a) he is in possession of a permit or

(b) being a person not domicile in India or Pakistan, he is in possession of a valid passport as required by the Indian Passport Act, 1920 (34 of 1920), or

(c) he is exempted from the requirement of being in possession of a permit by or in accordance with the rules made under this Act".

Section 4 empowers the Central Government, by notification in official Gazette, to make rules:

"(a) prescribing the authorities by which and the conditions subject to which permits may be issued or renewed or the period thereof extended, the condition to be satisfied by the applicants for such permits and the forms and classes of such permits;

(b) regulating the movements in India of any person who is in possession of a permit;

(c) providing for the exemption, either absolutely or on conditions of any person or class of persons from the requirement of being in possession of a permit or from the operation of any rule made under the section; and

(d)....... ...... ...... ...... ......

Section 5 is the penal section which says:

(a) Whoever enters India in contravention of the provision of S. 3, or having entered India contravenes the provisions of any rule made under S. 4, or commits a breach of any of the conditions of his permit, shall be punishable with imprisonment a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both".

Section 6 confers power of arrest upon an officer of Government. Section 7 is 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