TaxTMI 
TaxTMI 
2020 (1) TMI 907
X X X X Extracts X X X X
X X X X Extracts X X X X
....spondent started investigation into the Smuggling of Gold by a syndicate. In pursuance of the said investigation, on 29.03.2019 one Shri. Happy Dhakad was arrested under Section 104 of the Customs Act, 1962. Thereafter, though his bail application was rejected, subsequently statutory default bail was granted to him. An action under COFEPOSA Act of detention was not sustained by the Advisory Board and hence he was released. Criminal Writ Petition No.2700 of 2019 was preferred by the family members of Shri. Happy Dhakad as well as by the petitioner, seeking certain reliefs to protect their fundamental rights. An order came to be passed by partly allowing the Writ Petition thereby permitting the presence of advocate at visible, but not audible distance during interrogation and video recording of statement was also allowed. 5. It is case of the petitioner that on 27.08.2019 at about 6.30 p.m. Directorate of Revenue Intelligence (for short 'DRI') Officers, without disclosing their identity apprehended the petitioner at an Office in Udaipur, Rajasthan-State, where the petitioner is presently employed. The officers were not wearing any badges nor carrying their identity cards. The peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted the fundamental rights guaranteed to the petitioner under Article 14, 20, 21 and 22 of the Constitution of India. The petitioner is, therefore, entitled to be released forthwith by issuing the Writ of Habeas Corpus. 9. The learned counsel for the petitioner placed reliance upon the following judgments in support of his arguments :- (i) Rajbhushan Omprakash Dixit V/s. Union of India & Anr. 2018 SCC Online Del 7281. (ii) Mrs.N. Ratnakumari V/s. State of Odisha & Ors. 2014 SCC Online Ori 256. (iii) A.V. Papayya Sastry V/s. Govt of AP & Ors. (2007) 4 SCC 221. (iv) D.K. Basu V/s. State of W.B. (1997) 1 SCC 416 (v) Arnesh Kumar V/s. State of Bihar and Anr. (2014) 8 SCC 273 (vi) Madhu Limaye V/s. State of Maharashtra AIR 1969 SC 1014. (vii) Ram Narayan Singh V/s. State of Delhi & Ors. AIR 1953 SC 277 (viii) Kanu Sanyal V/s. District Magistrate, Darjeeling & Ors. 1973 2 SCC 674 (ix) Chhagan Bhujbal V/s. Union of India (2016) SCC Online BOM 9938. (x) Pranab Chatterjee V/s. State of Bihar & Anr. (1970) 3 SCC 926. (xi) Sadhwi Pragyna Singh Thakur V/s. State of Maharashtra (2011) 10 SCC 44....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s arrested only on 28.08.2019. It is further urged that the reliance placed by the learned counsel for the petitioner in the order passed by this Court in the case of father of Happy Dhakad was in different set of facts as he was arrested only because he was director of M/s.Ekdant and prima facie, his active involvement was not found from record. In that case it was observed that there were no direct allegations against him. 14. The learned APP relies upon the following judgments:- (i) Chhagan Chandrakant Bhujbal V/s. Union of India & Ors. 2017 (1) Bom. C.R. (Cri.) 300. (ii) Kanu Sanyal V/s. District Magistrate, Darjeeling 1974 AIR (SC) 510. (iii) Manubhai Ratilal Patel , through Ushaben V/s. State of Gujarat & ors. 2013 1 SCC 314. (iv) Saurabh Kumar through his father V/s. Jailor Koneila Jail and Anr. 2014 3 SCC 436. (v) Serious Fraud Investigation Office V/s. Rahul Modi & Ors. CDJ 2019 SC 400. (vi) Serious Fraud Investigation Office & Anr. V/s. Neeraj Singhal & Anr. CDJ 2018 SC 950. (vii) Ashok Chandrej Singh V/s. CBI-EOW and Anr. Criminal Writ Petition No.1801 of 2018. (viii) Narain V/s. Suprintendent, Ce....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the sides and after considering the authorities cited by both the sides, was pleased to grant remand by observing that the custody of the petitioner is necessary for recording the statement under Section 108 of the Customs Act, due to absence of his learned Advocate and DRI custody remand was sought for recording the statement of the petitioner. The learned ACMM being satisfied with the reason/ground for seeking custody was pleased to pass remand order, which cannot be faulted with. 19. So far as the case of the petitioner that he was arrested on 27.08.2019 and was detained till his formal arrest is shown on 28.08.2019 vide the Memorandum of Arrest, we are unable to accept the same. After the arrest of the petitioner on 28.08.2019, the petitioner was produced before the Court of Competent jurisdiction on the next day though the petitioner alleges that in the night of 27.08.2019 the petitioner was taken from his place of work at Udaipur to DRI Office at Udaipur at 6.30 p.m. and at 9.45 p.m. the officers forcibly took the petitioner to undisclosed place in Udaipur. There is nothing on record to show that after the petitioner was taken to ED Office, the petitioner was arrested or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ments pertain to the preventive detention of the Petitioners therein under the provisions of Article 22 of the Constitution and not in respect of the arrest of a person accused of an offence punishable under IPC or under any other special law. Secondly, as per the Judgment in the case of Kanu Sanyal (supra), only when the detention of the Petitioner on the date of filing of the Writ Petition is illegal, it was held that the Writ of Habeas Corpus can lie and it cannot be granted where a person is committed to Jail custody by a competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal. Even the Judgment in the case of Madhu Limaye (supra) also makes it clear that it has to be shown that the arrest made by the Police Officer was illegal and further it has to be established that, at the stage of remand, the Magistrate directs detention in the custody without applying his mind to all the relevant matters. As held in the said authority, if the orders of remand are passed by the Magistrate without application of mind and they are patently routine and appear to have been made mechanically, then only, such orders of remand would not cure t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt. It was rejected as the High Court did not find any infirmity in the remand order of the applicant-accused passed by the JMFC. The appellant, therefore, approached the Hon'ble Apex Court challenging the order of the High Court." 23. We further find support to our view from ratio of the Supreme Court in Sadhwi Pragyna Singh Thakur (Supra) wherein it is held as follows :- "26. The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order. 27. The decision in Manoj vs. State of M.P. (1999) 3 SCC 715 relied upon by the learned counsel for the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entioning that they had been arrested but not been communicated the reasons or the grounds for the arrest and in view thereof, the cognizance of their Petition seeking the Writ of Habeas Corpus was taken; particularly when the said assertion had remained uncontroverted in the 'Return' filed by the State. The perusal of paragraph No.10 of the order passed by the Hon'ble Supreme Court in the said matter reveals that the authorities wanted to invoke all kinds of provisions, like Sections 151, 107 and 117 of the Code, apart from Section 188 of IPC, and since no arrest could be effected for an offence under Section 188 of IPC by the Police Officers without proper orders, it was held that "these officers may have been naturally reluctant to comply with the mandatory requirements of Article 22(1) of the Constitution, by giving necessary information and that was the reason why the reasons of arrest were not told to Madhu Limaye and others". In that backdrop, it was held that this infirmity being not cured in view of the routine remand orders passed by the Magistrate mechanically, without applying his mind to all the relevant matters, the Petition for Habeas Corpus would lie. 67. A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ody by virtue of an order passed by the Judicial Magistrate. The same is further ensured from the Original Record which this Court has, by order dated 9 th April, 2014, called for from the Court of Additional Chief Judicial Magistrate, Dalsingsarai, District Samastipur, Bihar. Hence, the contention of the learned counsel for the petitioner that there was illegal detention without any case is incorrect. Therefore, the relief sought for by the petitioner cannot be granted. Even though there are several other issues raised in the Writ Petition, in view of the facts narrated above, there is no need for us to go into those issues. However, the petitioner is at liberty to make an application for his release in Criminal Case No. 129/13 pending before the Court of the learned Addl. Chief Judicial Magistrate, Dalsingsarai." (emphasis supplied) 76. Thus, the legal position as laid down in this authority makes it abundantly clear that even in respect of an illegal order of remand,which was passed mechanically in a cavalier fashion also, the remedy of writ of habeas corpus was not found to be appropriate remedy, but the only remedy which Hon'ble Apex Court considered appropriate wa....