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TMI Blog2020 (1) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy as available in law for seeking bail as per the advice - petition dismissed. - WRIT PETITION NO.4642 OF 2019 - - - Dated:- 21-1-2020 - S.S. SHINDE N.B. SURYAWANSHI, JJ. Mr. Sebin M. Josheph for the Petitioner. Mr. Jitendra B. Mishra, Special P.P. for Respondent Nos.1 and 2. Ms. S.V. Sonawane, APP for the Respondent-State. ---- JUDGMENT : (Per Shri. N.B. Suryawanshi, J.) 1. Rule. 2. Rule made returnable forthwith. Heard with the consent of the parties. 3. This petition seeks a Writ of Habeas Corpus and a direction to forthwith release of the petitioner (Detenu) from the custody of he Directorate of Revenue Intelligence (for short DRI ) in RA No.71 of 2019 arising out of DRI F. No.DRI/MZU/E/INT- 65/2019, on the ground that the detention of petitioner in custody is illegal and the same is violative of Article 14, 21 and 22 of the Constitution of India. 4. Facts necessary for the decision of the present petition, are as follows:- About in the month of March 2019 the second respondent started investigation into the Smuggling of Gold by a syndicate. In pursuance of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Public Prosecutor for respondent No.3. 8. The learned counsel for the petitioner has taken us through the paper book of the Writ Petition to strenuously urge that the petitioner was illegally arrested and detained on 27.08.2019, at instance of DRI Officials. Without obtaining transit remand, the petitioner was forcibly taken from Udaipur office of DRI to Mumbai DRI office on 28.08.2019. At about 11.30 p.m. the petitioner is shown to have been formally arrested and was served with Impugned Memorandum of Arrest. Thereafter, after much time i.e. at about 4.00 p.m. the petitioner was produced before the learned ACMM, Esplanade, Mumbai, by filing RA No.71 of 2019, seeking two days DRI custody remand. Inspite of the fact that the application was filed before the learned Trial Court opposing remand, pointing out the illegal arrest and non-production of the petitioner within 24 hours, non-obtaining transit remand, the learned Magistrate has mechanically passed order granting remand. According to the learned counsel for the petitioner the actions on the part of the respondents have violated the fundamental rights guaranteed to the petitioner under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date the subsequent detention, which was authorised by Competent Court. 11. The learned Special P.P. further states that the act of granting remand of accused is a judicial function and challenge to the same cannot be by way of Writ of Habeas Corpus. It is urged that the petitioner has a remedy of seeking bail before the learned Trial Court and in view of the said alternate efficacious remedy, the present petition is not maintainable and the same is liable to be dismissed. 12. The learned Special Public Prosecutor has also placed reliance on the affidavit-in-reply filed on behalf of the respondent Nos.1 and 2 and further relied upon the additional affidavit-in-reply. 13. The learned Special P.P. further states that there are serious allegations against the petitioner that he is involved in smuggling of gold. The petitioner, who was in the employment of the M/s.Ekdant Commercial Pvt. Ltd., had received around 30 kgs of smuggled gold on behalf of M/s.Ekdant. The said fact is also reflected in the Memorandum of Arrest dated 28.08.2019 of the Intelligence Officer of the DRI. The learned APP has strenuously urged that the petitioner was not arrested on 27.08.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two days vide order dated 29.08.2019 by the ACMM. Thus, when the present petition was filed the detention of the petitioner was authorized by the Competent Court. In this view of the matter the Writ of Habeas Corpus would not be maintainable. 17. The order below remand Application No.71 of 2019 records the submission on the part of the learned counsel for the petitioner. The submission so recorded is of gross violation of the procedure established in Cr.P.C. under Sections 154 to 157, 167, 172, 41(A), 41(B), no FIR was registered before arresting the petitioner, since the accused was arrested in violation of the mandatory procedure of the Cr.P.C. no valid remand can be granted under Section 167(2) of Cr.P.C. on these grounds a prayer was made to reject the remand application filed by the DRI. The learned ACMM further recorded the submissions on the part of the learned Special P.P. to the effect that accused was arrested after following due process of law. It is not necessary to lodge FIR before arresting accused and the accused has been arrested as per the provisions of the Customs Act 1961. Therefore, the learned Special APP prayed for rejection of the application of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inclined to entertain the present Habeas Corpus Writ, as the petitioner is in custody in pursuance of the remand order passed by the Competent Court. 21. The DRI authorities, in their additional affidavit have re-iterated that enquiry was made with the petitioner in respect of the seizure of 185 Kg of smuggled gold by DRI at Mumbai. It is argued by the learned APP representing 1st and 2nd respondent that serious allegations are leveled against the petitioner and prosecuting agency has relevant material to justify the arrest of the petitioner. The detention of the petitioner in custody till the investigation is ongoing is necessary and if the petitioner is released the investigation will be seriously hampered. There is no dispute that the learned ACMM has passed remand orders from time to time and the detention of the petitioner in custody is in pursuance of the remand orders passed by the Competent Court. 22. This Court in Chhagan Chandrakant Bhujbal V/s. Union of India Ors. (Supra) after considering various case laws including, paragraph No.14 of Madhu Limaye case and Kanu Sanayal came to the following conclusion. 47. The bare perusal of these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Apex Court in the recent decision of Manubhai R.P. Vs. State of Gujarat and Ors., (2013) 1 SCC 314 . In this case, the complaint was lodged against the appellant-accused for the offences punishable under Sections 467, 468, 409 and 114 of IPC. He filed an application under Section 482 of the Code, challenging the registration of FIR and further investigation. On 16th July 2012, the accused was arrested and produced before the Judicial Magistrate, First Class (JMFC) at 4:00 p.m. on 17th July 2012. The JMFC granted remand to custody of the appellant-accused upto 2:00 p.m. on 19th July 2012. On the same day, i.e. 17th July 2012, the High Court passed an interim order staying further proceedings in respect of the investigation. The interim order passed by the High Court was brought to the notice of an investigating agency on 18th July 2012. On 19th July 2012, an application was filed seeking bail by the appellant on the ground that the High Court had stayed further investigation and sought the release of the appellant-accused. The JMFC rejected the bail application holding that the High Court order was regarding stay on investigation. The appellant-accused unsuccessf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tail order and hence the above ratio is squarely applicable to the facts of the present case. It is clear from the order that the learned ACMM has applied mind to the relevant facts and documents while passing the order of remand hence in our opinion the remand order cannot be said to be passed mechanically and without application of mind. In this behalf we rely on the following observations in Chagan Bhujbal (Supra). 63. Therefore, as held in above referred authorities, for the sake of arguments, even assuming that the arrest of the Petitioner was illegal, once it is established that, at the stage of remand of the Petitioner, the Special Court has directed detention of the Petitioner after applying its mind to all the relevant factors, the orders of remand having thus cured the alleged Constitutional infirmities and such orders, prima facie, being not passed without jurisdiction or wholly illegal, then, as per the law laid down in the above cited authorities, the Writ for Habeas Corpus itself is not maintainable. 66. It is pertinent to note that in the case of Madhu Limaye supra), on which much reliance is placed by learned Senior Counsel for the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er manner, betraying insensitivity. 69. The case in point is that of Saurabh Kumar through his father vs. Jailor, Koneila Jail anr., (2014) 13 SCC 436, which is relied by learned Additional Solicitor General. In this case also, the writ of habeas corpus was sought by the petitioner alleging his detention to be illegal. It was contended by the Petitioner that he was unnecessarily and illegally detained by the police. When the matter came up before the Hon ble Apex Court, the Hon ble Apex Court took note of the two counter affidavits filed by the Respondents, which showed that the petitioner was an accused in a Criminal Case which was registered for the offences punishable under Sections 147, 147, 149, 323, 427, 504, 379 and 386 of IPC and under Section 27 of the Arms Act and after such registration he was arrested and produced before the Additional Chief Judicial Magistrate and thereafter he was taken in judicial custody. It was however, contended by learned Senior Counsel for the Petitioner that direction be given to the jailor to produce the Remand Report of the Petitioner that itself would show the illegal detention. After hearing the arguments advanced by both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sanjay Dutt s case has also held that a Writ of Habeas Corpus filed on the basis of the absence of the valid order of remand or detention has to be dismissed, if on the date of return of rule, custody of the detenue is on the basis of a valid order. 29. If the above ratio is applied to the facts of the present case, we are of the considered view that even if for the sake of the argument, it is accepted that initially there was a violation of Article 22(2) of the Constitution of India, taking into consideration the facts of the present case and the serious allegations/accusations levelled against the petitioner, he need not be set at liberty. It is a matter of record that the detenue was remanded to judicial custody by the orders of the Competent Court (ACMM), at the time of the filing of this petition. In these facts and circumstances and in the light of ratio of the Hon ble Supreme Court as well as this Court quoted herein above. In our considered view this is not a fit case to exercise our extra ordinary jurisdiction. 30. Taking into consideration the overall facts and circumstances of the case and in view of the serious allegations levelled against the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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