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TMI Blog2003 (12) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... and a pamphlet were recovered and a case in Crime No. 1 of 2003 was registered on the file of the Inspector of Police, C.B.C.I.D. Headquarters under Section 25(1 B)(a) of the Arms Act and 124(A) of I.P.C. at about 00.15 hours on 12.4.2003. Thereafter, the Prevention of Terrorism Act, 2002 was invoked and the case was transferred to the Special Court under P.O.T.A. His application for bail was dismissed by the Special Court on the ground that the same is not maintainable, and in the circumstances, he has filed the above Habeas Corpus Petition. 3. Mr. R. Shanmugasundaram, learned senior counsel arguing on behalf of the petitioner , submits that though several grounds have been raised and the matter has earlier been argued before two Division Benches, considering the fact that he had been in custody from 11.4.2003, and on the question of violation of the provisions of Article 22(1) of the Constitution of India he is likely to succeed, sought permission to argue only the said point. We permitted the learned senior counsel to confine his arguments to Article 22(1) of the Constitution of India. 4. In support of his submissions, he referred to a specific ground raised in the affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his arrest. The Respondent claimed that the detenu was searched only at the C.B.C.I.D. Office and in the F.I.R., it is mentioned that even before the search two independent witnesses were brought for the purpose of search. I humbly submit that for the reasons best known to the Respondent no search was conducted at the place where the detenu was arrested. The place where he was arrested is a busy road and there are many shops in that street. In such circumstances, even in the F.I.R. there is no reason given at all why no search was made at the time of arrest. This gives reasonable suspicion regarding the version of the police. 7. The officer who had arrested the detenu, namely, Thiru. C. Kanagaraj, Inspector of Police, C.B.C.I.D., Nilgiris, did not file any counter affidavit. In the counter affidavit filed by the first Respondent, Deputy Superintendent of Police, C.B.C.I.D., while dealing with paragraph 7. has simply-denied the allegations made therein and that there is no nexus to the prayer sought for in the petition. Secondly, according to him, the averments are argumentative. It is further stated that the allegations made in Paragraph 7 and 8 are sub judice before the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4.2003. In so far as the arrest memos are concerned, they do not contain the Court seal (the report contains Court seal) and that in the arrest memo, in reference to Crime No. 1 of 2003, no date is given by the Inspector of Police, C.B.C.I.D. The photocopies of these arrest memos, three in number, have different serial numbers and therefore, prima facie, we have our own doubt as to the arrest memos. However, in the arrest memos, it is stated that the detenu has been arrested under the Sections referred to therein. Beyond that, no reasons or grounds have been given in them. 10. The detenu, in his bail application dated 23.6.2003, a copy of which is filed along with this H.C.P., the detenu has stated as follows: When the Petitioner enquired, the policemen declared that they are arresting him. He made it clear to the policemen that he can be arrested after giving the details of the case, so that he can inform his advocates and the associate editor of his magazine. The policemen did not bother to give any details and hurriedly dragged the Petitioner out of the jeep and pulled him by his lapels and collars then pushed him into the Bharathi Call Taxi and tried to drive away from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of the Supreme Court held that before a person is deprived of his personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. Following the said dictum, another Constitutional Bench, in Naranjan Singh Nathawan V. State Of Punjab (AIR 1952 SC 106), held that the Constitution does not make any difference between an arrest under Criminal law and a preventive detention. 15. In Ram Narayan Singh V. State Of Delhi (AIR 1953 SC 277) it was held by another Constitutional Bench that the Supreme Court has often reiterated that those who feel called upon to deprive other persons of their liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law. Whenever that is not done, the Petitioners are entitled for release. It was also held that in a Habeas Corpus proceeding, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. In this case also, the affidavit filed by the Petitioner had not been controverted in the counter affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under Article 22(1) of the Constitution and Section 50(1) of the Code to obtain full particulars of the offence or the grounds for his arrest, is based on well settled principles of law, as enunciated in a number of judicial pronouncements. Their Lordships held that this requirement is mandatory and it requires the arresting person to communicate to the arrestee the full particulars of the offence for which he is arrested and not the mere provisions of the Sections of the offences for which he is arrested or a gist of the offences. The requirement is to furnish the full particulars of the offences for which he is arrested. 20. The above-referred decisions rendered in reference to Article 22(1) have mandated the furnishing of full particulars of the reasons and grounds of arrest. The failure to do so would make the order illegal and vitiate the action taken and give rise to the consequential right of the detenu to get released by filing a writ petition for Habeas Corpus. 21. A Full Bench of the Allahabad High Court, in Vikram V. State (1996 Cri.L.J. 1536, held that as soon as it is indicated by the arrestee or on his behalf that the provisions under Article 22(1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Corpus on the ground of absence of a valid remand order is to be dismissed, if on the date of the return of the rule, the custody or detention is on the basis of a valid order of remand. 26. Reliance was also placed on the judgment of the Supreme Court in B.R. Rao v. State Of Orissa (AIR 1971 SC 2197) wherein, it was held that in Habeas Corpus Proceeding the Court is to have regard to legality or otherwise of the detention at the time of the return and not with reference to the date of institution of the proceedings. In that case, the detenu was found undergoing a sentence of imprisonment imposed on him by a competent Court. 27. In Kanu Sanyal V. Dist. Magistrate, Darjeeling , (AIR 1974 SC 510), the Supreme Court held that any defect in the legality of the detention of the Petitioner prior to the date of filing the petition cannot affect the detention of it is legal on the date of the petition. 28. The Judgments referred by the learned Advocate General do not directly deal with the infringement of Article 22(1) and invalid arrest and custody. 29. In D.K. Basu v. State Of West Bengal (1997 SCC (Cri.) 92), the Supreme Court issued the requirements to be followed in all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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