M. A. Dharman, sou of Appukuttan 68, solayappa Naichen Street, Madras-17 vs State OF A. P. by Secretary to Government, General Administration department, Hyderabad

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(AP) 479

Andhra Pradesh High Court
Judges : IYYAPU PANDURANGA RAO, RAMANUJULU NAIDU
M.A.Dharman, sou of Appukuttan 68, solayappa Naichen Street, Madras-17 - Appellant
Versus
State OF A.P. by Secretary to Government, General Administration department, Hyderabad - Respondent
W.P.No.14954/90 etc.
Decided On : 12-24-90
Advocates Appeared :
M/s. B. Kumar,D. Panduranga,Mr. I. Koti Reddy

Headnote:CRIMINAL PROCEDURE CODE, 1973 - Sec. 167(2) Proviso (a) and (b) read with Expl. II end Sec. 309 (2) end Constitution of India, Arts. 21 and 226 - Scope and object of Sec.167(2)(b) Cr.P.C - Order of remand of accused detenues to judicial custody by Special Judge who were arrested under Sec. 104 of the Customs Act, 1962 without production of accused detenues by Jail authorities - Violative of Sec. 167 (2) (b) Cr.P.C. and Constitution of India, Art.21 -Writ Petition filed by detenu foreign nationals questioning Order of remand Maintainable.
       Held : Proviso [b] to Subsection [2] of Sec. 167 of the New Code of Criminal Procedure lays down that the detention in any custody under Sec. 167 of the New Code shall not be authorised by the Magistrate unless the accused is produced before him. Under Proviso [b] read with Explanation II" the production of the accused before the Magistrate both at the time of initial remand of the accused under Sec. 167 (2) and at the time of extension of remand of accused from time to time under Proviso (a), is an indispensable pre-requisite. The object behind the salutary rule enacted in Sec. 167 (2) (b) of the Code of Criminal Procedure is to afford to the accused person produced before the Magistrate or opportunity of being heard before an order of remand or extension of remand is passed. The finding that adequate grounds exists for extension of remand of the accused person cannot be reached by the Magistrate unless the accused is given an opportunity to show cause against the same. It is also part of fairness the procedure enshrined in Art. 21 of the Constitution that no person can be deprived of his life and personal liberty except according to the procedure established by law. Even under Sec. 309 (2) of the Code of Criminal Procedure for remanding an accused person to Judicial Custody the requirement of natural justice particularly that of audi alteram partem should be complied with. Production of the accused person is an indispensable requirement of natural justice and fair procedure as the order of remand seeks to deprive him of his personal liberty.
       AIR 1988 Pat. 199 [F.B.] dissented from.
       In this case, without production of the detenus before him, the learned Special Judge mechanically remanded them to judicial custody in contravention of the mandatory provision in Sec. 167(2)(b) of the Code of Criminal Procedure read with Explanation- II appended thereto· Non-availability of escorts to produce the detenus before the Learned Special Judge, pleaded by the Jail authority, hardly constitutes a ground for their continued non production. The successive orders passed by the learned Special, Judge remanding the detenus to judicial custody from 13.8.1990 till 7.9.90 on which date, a complaint was filed before the learned Special Judge, for contravention of the provision under Sec. 135 of the Customs Act, are therefore, violative of Sec. 167 [2] [b] of the Code of Criminal Procedure and Art. 21 of the Constitution of India and their detention or custody from 13.8.1990 till 7.9.1990 is illegal and unlawful.
       Art. 226 of the Constitution of India can be invoked both by Citizens and non-citizens not only for the purpose of enforcement of the fundamental rights guaranteed under Arts. 20, 21 and 22 of the Constitution of India, but also for any other purposes.
       W.Ps. Allowed

RAMANUJULU NAIDU, J.

( 1 ) IN this batch of Writ Petitions filed for issue of writs of Habeas Corpus, directing the respondents !o produce before this Court, respectively, (1) anwar Ismail, s/o Ismail, (2) Dawood Mohammed, s/o Siddiqui, (3) dawcod, s/o Yusuf, (4) Ishaq, s/o Omar, (5) Baktar Ahmad Mujawar Khan, s/o Mujawar Khan, (6) Kasim Mohammed s/o Shaik Mohammed, (7) abdullah Usman, s/o Usman, (8) Mossa, s/o Ibrahim, and (9) Rafi, s/o abdullah, presently undergoing detention as remanded prisoners in the central Prison, Visakhapatnam, hereinafter referred to, for the sake of convenience, as the detenus and to set them at liberty, an important question of law as to the interpretation of Sec. 167 (2) (b) of the Code of criminal Procedure and the consequences that flow from contravention of or non-compliance with, the provisions of the said section arises for consideration.

( 2 ) THE facts giving rise to the filing of the batch of writ petitions lie in a narrow compass and may briefly be stated. All the detenus are Helpers and Sailors employed in an Arab Dhow. It sailed towards the coastal sea in the State of Andhra Pradesh and it was intercepted at the coast near narsapur by the officials of the Directorate of Revenue Intelligence, Madras on 12-7-1990 and large quantities of smuggled silver bars were recovered from the Dhow. The detenus were arrested under Sec. 104 of the Customs act, 1962 for contravention of the provisions of Section 135 of the Customs act and produced before the VIII Metropolitan Magistrate, Visakhapajnam on 15-7-1990 seeking their remand. The learned Magistrate remanded them to judicial custody till 30-7-1990 with a direction to produce the detenus before the Court of Special Judge for Economic Offences, Hyderabad for further remand. The detenus were thereupon lodged in the Central Prison, visakhapatnam and produced before the Court of the Special Judge for economic Offences, Hyderabad on 30-7-1990 for further remand. The learned Special Judge remanded them to judicial custody for a further period of 14 days, viz. , upto 13-8-1990. On 13-8-1990, none of the detenus was produced before the learned Special Judge, but the learned, Special judge extended their remand till 27-8-1990. Even on 27-8-1990, the detenus were not produced before the learned Special Judge, but the learned Special judge extended the remand till 10-9-1990. On 10-9-1990 also the detenus were not produced before the Special Judge, but the learned Special Judge mechanically extended their remand till 24-9-1990. It appears that the jail authorities were seeking remand of the detenus from the Special Judge on each of the occasions as a matter of routine, on the ground that there were no escorts available for production of the detenus before him and the special Judge was mechanically extending remand of the detenus from time to time. A complaint, was however, filed against the detenus on 7-9-1990 before the learned Special Judge, for contravention of the provisions of section 135 of the Customs Act and the detenus were being remanded from time to time by the learned Special Judge invoking the provisions of sec. 309 of the Code of Criminal Procedure. Assailing the orders passed by the learned Special Judge remanding the detenus to judicial custody from 13-8-1990 to 24-9-1990 without being produced before him, the writ petitions were filed.

( 3 ) IN all the writ petitions, the State of Andhra Pradesh, represented by the Secretary to Government, General Administration Department and the Superintendent of Central Prison, Visakhapatnam were impleaded as respondents 1 and 2. The Directorate of Revenue Intelligence, whose officials arrested the detenus, impleaded itself as the 3rd respondent in all the writ petitions.

( 4 ) IN the common counter-affidavits filed on behalf of the 3rd respondent it is averred that the fundamental rights enshrined in the Constitution of India are guaranteed only to the citizens of India and the detenus being pakistan