Sudali Andy Asary V. Vanden Dreesen

1952 Present  : Choksy A.J.

SUDALI ANDY ASARY, et al, Petitioners, and VANDEN DREESEN
(Inspector of Police), Respondent

Habeas Corpus Applications Nos. 1566-1570 (Hatton)

Habeas corpus-Deportation Order-Power of Court to examine whether it was made on sufficient material-Malice-"Citizen of Ceylon"-"British subject in Ceylon "-Citizenship Act, No: 18 of 1948-Ceylon (Constitution) Order in Council, 1946, Art. 29 (2) (b)-British Nationality Act of 1948-Immigrants and Emigrants Act, No. 20 of 1948, ss. 30, 31 (1) (d), 41, 50.

Certain persons, alleged to be illegal immigrants, were arrested and produced before a Magistrate and remanded, pending prosecution on a charge of illicitly entering Ceylon in contravention of the Immigrants and Emigrants Act, No. 20 of 1948. On their being brought before the Court on a later date, the Police informed the Court that they had not sufficient evidence for a prosecution under the Act but that the alleged immigrants would be arrested, upon their discharge from Court, under Deportation Orders made by the Minister of Defence and External Affairs under s. 31 (d) of the Immigrants and Emigrants Act between their production in Court and their discharge. "Upon their being so arrested and detained-pending deportation from Ceylon-applications were made for writs of habeas corpus in respect of the detenues on the grounds, inter alia, that the police had acted mala fide in producing and remanding them under cover of the Criminal Procedure Code, not with genuine intent to prosecute them under the Immigrants and Emigrants Act but wrongfully and maliciously with the object of abusing the provisions of the Criminal Procedure Code and thus keeping the persons under the Court's custody until the Police were able to obtain Deportation Orders from the Minister under that Act, and that therefore the entire proceedings commencing with the arrest and production before the Magistrate, the remand from time to time and the discharge of the detenues by the Magistrate upon the application of the prosecution, the obtaining of the Deportation Orders meanwhile, the subsequent arrest under these Orders-after the discharge by the Magistrate and the detention thereunder pending deportation were " a fraud upon the Statute " and an abuse of the powers of the Magistrate's Court.

Held : (i) The Court could not, under Habeas Corpus, deal with the regularity or validity of the arrest and detention of the detenues under the Criminal Procedure Code as that custody had already terminated and come to an end by order of the Magistrate made prior to the application for habeas corpus.

(ii) As far as the arrest and detention under the Deportation Orders were concerned, if the Court was satisfied that there had been a competent exercise of the lawful authority vested in the Minister, then the Court would not go into the further question whether the Minister had material before him which a Court of law would consider sufficient for exercising that power. If however it was demonstrated to the Court that the power was being used for any purpose other than the legitimate one which the law had in contemplation, i.e., if it were being used for a collateral or indirect purpose, or were only a colourable exercise of the power, or if it were a mere sham to cover up something extraneous to the statute, then the exercise of the power would be " a fraud upon the Statute " and could not be upheld.

(iii) Where the power to make a Deportation Order is given to the Minister if he " deems it to be conducive to the public interest " to make it, the condition is a subjective and not an objective one and it is for the Minister to decide whether or not the public interest requires the Deportation Order to be made,

and not for the Court to decide whether or not there was reasonable cause or ground for the Minister to " deem it to be conducive to the public interest " t

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