1987 (12) TMI 233 - HC - Indian Laws

Summary

Issues:
1. Can a writ be issued to quash an order of detention when the order has not been served on the detenu and the detenu is not under detention?

Detailed Analysis:

Issue 1:
The main issue in this case was whether a writ could be issued to quash an order of detention when the order had not been served on the detenu and the detenu was not under detention. The petitioner argued that the detention order against him was identical to the one passed against another individual, which had been quashed by the court. The Public Prosecutor contended that a writ could not be issued when the detenu was not in detention. The court held that while a writ of habeas corpus may not be applicable in such cases, the court still had the power to issue writs like mandamus, certiorari, or prohibition. The court emphasized that Article 226 of the Constitution empowered the High Court to protect individuals against illegal detention even if they were not currently detained. The court cited previous decisions to support its view that the High Court could intervene to prevent illegal detention.

Analysis:
The court discussed the scope of Article 226 of the Constitution, emphasizing the wide powers conferred on the High Courts to address injustices. It highlighted that the High Courts could issue various writs beyond the traditional prerogative writs, allowing them to tailor remedies to meet the specific needs of the country. The court rejected the argument that the petitioner must be under detention for a writ to be issued, stating that the High Court could intervene to prevent illegal detention even before it occurred. The court cited previous cases to support its interpretation of the law and emphasized that the power to issue writs should be exercised judiciously and only in appropriate cases.

Conclusion:
The court concluded that the petition was maintainable despite the detenu not being served with the order of detention and not being in detention. It held that the impugned order of detention should be quashed and set aside. The court found that the delay in passing the detention order and the lack of evidence of the petitioner's involvement in illegal activities justified quashing the order. The court emphasized that the power to issue writs should be used sparingly and only in fit cases. Ultimately, the court ruled in favor of the petitioner, quashing the detention order and making the rule absolute in the petitioner's favor.