Judgment

BOSE, J.: The petitioner, Hans Muller, who is not a citizen of India, and who is said to be a West German subject, was arrested by the Calcutta Police on18-9-1954 and was placed under preventive detention. The order was made by the West Bengal Government under S. 3(1), Preventive Detention Act of 1950 (Act 4 of 1950) on the ground that his detention was

"with a view to making arrangements for his expulsion from India."

2. The grounds were served 22-9-1954. The second ground runs-

"That you are a foreigner within the meaning of the Foreigners Act, 1946 (Act 31 of 1946) and that it has become necessary to make arrangements for your expulsion from India and for this purpose you are required to be detained under S. 3(l)(b), Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central Government."

3. On the day after his arrest, namely on 19-9-1954 he wrote to the Consul-General of West Germany at Calcutta saying that he had been arrested and asking for an early interview. This was granted.

4. On 21-9-1934, the petitioner wrote to the West Bengal Government asking it

"to be kind enough to pass an order for our immediate repatriation from India" and

"to do the necessary arrangement for our transmission out of India."

5. On 9-10-1954 the Calcutta Police handed the petitioner s passport over to the West German Consul at the Consul s request. This passport was issued to the petitioner by the West German Government at Nurenburg in West Germany on 27-l1-1953. When the passport was handed over to the West German Consul it had on it a number of visas, including an Indian, all of which had on them the condition "while the passport is valid". When the West German Consul got the passport he made the following entry on it:

"Valid only for the return voyage to the Federal Republic of Germany until 8-1-55".The petitioner complains that this invalidated all the other visas and as, according to this fresh entry, the passport ceased to be valid after 8-1-1955, he now has no passport.

6. On the same day, 9-10-1954, the West German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in connection with a number of frauds and that legal proceedings in connection with those warrants are still pending. The Consul also said that he had received information that similar charges had been against the petitioner in Lebanon and in Egypt and he concluded-

"The Government of the Federal Republic of Germany will apply for Muller s extradition through diplomatic channels whilst at the same time submitting the supporting documents. As this will require a certain amount of time, I am directed to give you advance information of this step and hereby request the Government of West Bengal to issue a provisional warrant of arrest which ensures Muller s detention up to the date of his extradition to Germany.

This Consulate has already arranged for Muller s repatriation by the German bost KANDELFELS due to arrive in Calcutta on the 19th instant. All expenses in connection with Muller s repatriation will be borne by the Government of the Federal Republic of Germany."

7. On receipt of this letter the Secretary to the Government of West Bengal recorded the following note:

"I suppose there would be no objection to our keeping Muller in detention till the 19th instant. We must issue order of his release as soon as his boat is ready to sail."

8. The West Bengal Government had no power to deport the petitioner. Only the Central Government could do that, and up all the 20th of October the Central Government had not passed any orders. On that date the petitioner applied to the High Court of Calcutta for a writ in the nature of habeas corpus under S. 491, Criminal P. C. Because of that, and because this matter has been pending in the courts ever since, no orders have yet been issued for his expulsion from India though we are told by the learned Attorney-Genera