Yogesh Kantilal Patel vs Home Secretary, Govt. of Maharashtra

Agarwal, J.—A short question that has been put for our consideration is whether a writ can be issued quashing an order of detention when that order has not been served on the detenu and the detenu is not under detention. A few facts given rise to the above question may be sated.

On the 15th of February, 1981 five unaccompanied packages had been unloaded at the Air Cargo Complex at Sahar Airport, Bombay. Two out of the said packages had been booked from London by the Petitioner and there by one Johal Singh Manjit Singh and the consignee of the aforesaid five packages was one Mrs. Fulla Prabhakar. On the 26th February, 1981 the petitioner, the aforesaid Johal Manjit Singh and one Dhillon arrived at Bombay from London and stayed in the Hotel Holiday Inn. The Petitioner as also the said Johal Manjit Singh had made an attempt to change the name of the consignee from Mrs. Fulla Prabhakar to their own name but the same was not fruitful. On certain information being received, the Customs Officers on or about 26th February, 1981 seized the said packages. They were found to contain video cassettes and V.C.R''s Investigation revealed that the petitioner and the aforesaid Johal Manjit Singh, at the instance of the aforesaid Shri Dhillon had booked the said consignment from London. Both, the petitioner as also Johal Manjit Singh came to be arrested on 28th February, 1981 and were thereafter released on bail. The petitioner on or about 13th May, 1981 left India back for London and this was on account of the fact that his Visa which had been issued for a period of three moths was about to expire. It was on the 4th of December, 1984 that the present impugned detention order was passed against the Petitioner. On identical facts and grounds, a detention order was also passed against Shri Johal Manjit Singh. That order was duly served upon Johal Manjit Singh and he filed in this Court, a Criminal Writ Petition No. 650 of 1982 wherein by a judgment and order dated 18th January, 1983 this Court (Kurdukar & Rakesh, JJ) quashed and set aside that detention order on the ground that the single instance in question did not warrant the passing of the said detention order and there was an inordinate delay in passing the said order of detention. The petitioner having left India almost six months prior to the date of the passing of the impugned detention order could not be served with that order and the petitioner is thus still at large. The present petition has been filed on the 22nd of December, 1986 seeking to challenge the impugned order for detention.

Shri Madhu Patel appearing on behalf of the petitioner has contended that the impugned order detention that has been passed against the petitioner is on grounds identical to the grounds on which the detention order against Johal Manjit Singh was passed. This Court after holding that solitary instance did not justify the passing of the detention order and the detention order had been passed after undue and unexplained delay, has quashed that detention order. Thus, this was a fit case where the impugned detention order should be quashed.

Smt. Desai, the learned P.P. appearing on behalf of the respondents, however, strenuously urged that it is not open for this Court to issue a writ quashing the detention order when the petitioner has not been served with the order detention and the petitioner is still at large. In other words, her contention is that till such time the detenu is under detention, a petition for a writ of habeas corpus cannot lie. In support of her contention she relied upon an unreported decision in Criminal Application No. 1311 of 1987 S. J. Purohit v. State decided by Rage and Mehta, JJ. where it was held that, that petition was premature as it was filed only on apprehension and without any detention order or the grounds and the material being served upon the petitioner therein. The procedure adopted by the petitioner appeared to be keep away from the service of the order and fill the petition on the imagination of the grounds for anticipatory order on the same basis as anticipatory bail and such procedure was not provided for by the Act. It was observed that the petitioner can move the Court as and when the detention order is served upon him.

In our judgment, there is no merit in the aforesaid contention of Smt. Desai. It may be that it may not be open to this Court to issue a writ of habeas corpus at the instance of the petitioner when he is not in detention. That, however, cannot preclude the power of this Court to issue a writ of mandamus, certiorari or prohibition or a writ of the aforesaid nature. To say that a writ cannot be issued to quash an illegal order of detention would be to curtail the jurisdiction of the prerogative of the High Court to issue the aforesaid writs when no limitation can be found in that power. Article 226 is couched in a language wide enough to protect a person against an illegal invasion of his right to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained. It cannot be said that the High Courts are impotent to given relief against the prospect of illegal detention and must first require the intended detenu to surrender to the illegal detention. The High Court may under the provisions of Article 226 issue a direction, order and writ in the nature of mandamus and/or certiorari quashing an illegal order of detention and may by direction, order and writ in the nature of prohibition enjoin the person threatening the illegal detention from executing the threat. The position of a person who is actually under illegal detention and a person who is in imminent jeopardy of illegal detention are not far dissimilar. Jayantilal Bhagwandas Shah and etc. Vs. State of Maharashtra and others, .

Article 226 is couched in comprehensive phraseology and it ex facie confers a wider power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can exercised. It can issue writs in the nature of prerogative writ as understood in England; but the source of those writs also is widened by the use of the expression "nature" for the said expression dose not equate the writs that can be issued in India with those in England, but only draws an analogy from them. This apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the particular and complicated requirements of this country. Any attempt to equate the scope of the powers of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the year in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be involved to direct the article through defined channels. ( Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, ).

In this view of the matter we have no hesitation in holding that the present petition is maintainable despite the fact that the petitioner has not been served with the order of detention and is not in detention. We are fortified by the above view by the unreported decisions in the case of Sukhramdas Prabhudas Thakur v. The State of Maharashtra (Criminal Writ Petition No. 622 of 1982 decided by Kurdukar and Khatri, JJ); Sayed Iqbal v. State of Maharashtra [Criminal Writ Petition No. 1159 of 1986 decided by Mehta & Daud, JJ. On 21st August, 1987 since reported in Sayed Iqbal Vs. State of Maharashtra, ] and Johal Singh Manjit Singh v. Home Secretary (Criminal Writ Petition No. 650 of 1982 decided by Kurdukar & Parekh, JJ on 18th January, 1983) wherein the aforesaid decision of Jayantilal Bhagwandas Shah and etc. Vs. State of Maharashtra and others, has been followed. Thus the view expressed in Criminal Writ Petition No. 650 of 1982 relied upon by Smt. Desai would have to be held as applicable to the peculiar facts of the case and not as laying down the law of universal application.

Though we have held that there is no impediment in the power to entertain such petitions and to issue appropriate writs, it dose not follow that such power can been exercised indiscriminately. It must be state that the issuance of writs is an extraordinary remedy and the same has to be sparingly utilised. It is only in fit case that this power would be exercised.

Coming to the facts of the present case the question is whether on the facts of the instant case, the impugned order of detention deserves to be quashed and set aside. Mrs. Desai strenuously contended that this is not a fit case where the extraordinary jurisdiction of issuing a writ can be invoked. According to her though the order of detention was passed on the 4th of December, 1981, the petitioner has successfully avoided service thereof by remaining out of India. He, while being at large, has sought to have the said detention order set aside and avoid being detained. She submitted that instances of the present nature are on the increase and the present tendency to evade detention and yet challenge the order of detention through a next friend should be discouraged.

In our judgment, there in no merit in the aforesaid submission of Smt. Desai. It must be remembered that on identical facts, this Court had found the order of detention in respect of Johal Singh Manjit Singh in Criminal Writ Petition No. 650 of 1982 unsustainable. It has been held that the delay of about nine months in passing the order of detention has not been properly explained. We find that the explanation given in the present petition for delay is identical to the explanation given in that petition and on consideration of that explanation, this Court has held that the said delay has not been satisfactorily explained. The said order of detention has also been struck down on the ground that the same was not justified on the solitary instance that had taken place in February 1981. There is one additional glaring ground in the present petition which was not there that petition and that is, that the impugned order of detention has been passed as far back on the 4th of December, 1981 and there is no evidence that the petitioner has either visited India after May 1981 or has indulged in any activities of the nature contemplated u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Hence, it will have to be held that this is fit case where the impugned order of detention deserves to be quashed and set aside on this ground also.

In the result, this petition succeeds. The impugned order of detention is quashed and set aside and rule is made absolute in terms of prayer Clauses (a) and (b).