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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 ..... 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 petitioner was taken to an undisclosed destination at ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 445. (xii) Sanjay Dutt V/s. State through CBI, Bombay 1994 (5) SCC 410 (xiii) Kailas J. Kharjule V/s. State of Maharashtra 2013 (1) Bom C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Central Jail, New Delhi 1971 AIR SC 178. (ix) Sanjay Dutt V/s. State through C.B.I., Bombay 1995(1) Bom. C.R. 186. (x) Pranab Chaterjee V/s. State of Bihar 1970 (3) SCC 926. (xi) Sadhwi Pragyna Singh Thakur V/s. State of Maharashtra 2011 (6) AIR Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detained, merely because inquiry was made with the petitioner, hence he could not leave the office or was not allowed to leave office of the ED does not make out his arrest or detention. The time spent for taking the petitioner to Special Court needs to be excluded. Hence, we are unable to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra), 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 the Constitutional infirmities in effecting arrest. 48. Thus, the necessary inference that can be drawn from the law laid down in both these authorities is that, in the first place, Petitioner has to show that his arrest is patently and manifestly illegal and null, being without jurisdiction. The Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 appellant was a case where the accused was not produced before the Magistrate in the second case and, therefore, was directed to be released. It was not a case where the person was produced before the learned Magistrate and remanded to custody and then directed to be released because there was infraction by the police. Similarly, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'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. As against it, in the present case, the Remand Report and the order of remand passed by the Special Court clearly state which offence is made out against the Petitioner and on the basis of which material. As stated above, all the Remand Reports are in detail, so also the remand orders, in which the Special Court has applied its mind to all the relevant matters. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was that of filing the application for bail." 25. We are therefore unable to accept the submission of the learned counsel for the petitioner that the learned ACMM passed the remand order mechanically and in routine manner without application of mind. 26. In Saurabh Kumar (Supra) the Hon'ble Supreme Court held that even if Magistrate has acted rather mechanically remanded the accused in judicial cus ..... 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