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TMI Blog1987 (12) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... kages 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 three 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Madhu Patel appearing on behalf of the petitioner has contended that the impugned order of 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 this 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. 4. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid 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 give 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 threat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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 evolved to direct the article through defined channels. (Dwarkanath v. I.T. Officer - AIR 1966 SC page 81). 7. 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 Kurduk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining 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. 10. In our judgment, there is 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 as unsustainable. It has been held that the delay of about nine months in passing the order of detention had not been properly explained. We find that the explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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