The High Courts have the authority to issue writs for enforcement of rights under Article 21, and the grounds of detention must be formulated concurrently with the detention order, failure of which renders the detention order void ab initio.

BHARUCHA J.-In these three writ petitions the challenges are directed towards orders of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (now referred to as "the Act."). The intended detenus under these orders are not in detention.

2. The learned Advocate-General, appearing on behalf of the State of Maharashtra, raised a preliminary objection to the maintainability of the petitions. It was that the habeas corpus jurisdiction under Article 226 of the Constitution is exercisable only to examine the legality of a detention when there is a detention and in no other case. The Advocate General submitted that an order of detention cannot be successfully challenged if it bas not been executed. In his submission, though the prayers in the petitions seek writs other than the writ of habeas corpus, the petitions are in substance habeas corpus petitions.

3. The Advocate-General cited in this regard the judgment of the Federal Court in Emperor v. Keshav Talpade1. This was an application for leave to appeal to the Privy Council against an order made in a detention case by the Federal Court. The Federal Court said that since the original petition, the detenu had been released by Government; he had no longer any interest in the habeas corpus proceedings and dismissed the application. The Advocate-General then cited the decision of the Punjab High Court in Kidar Nath v. State of Punjab2. He placed reliance upon the observation in paragraph 17 thereof, namely, that the writ of habeas corpus was a device for, in the main, obtaining deliverance from unlawful detention and its object was the liberation of those who may be kept wrongfully restrained but it could not be employed as a means of securing judicial determination of any other question or for punishing the respondent or for affording reparation or redress to the person wronged. In Barnardo v. Mary Ford, Gossage's case3 referred to by the Advocate-General, Lord Halsbury, L. C., said that he could not agree with the view that a writ of habeas corpus might issue when illegal detention had ceased before the application for the writ had been made. In The King v. Secretary of State for Home Affairs4, which also the Advocate-General cited, it was said that if the Court was satisfied that the body whose production was asked for was not in the custody, power or control of the person to whom it was sought to address the writ, the writ of habeas corpus was not the proper remedy. Again, it was said that in all cases of alleged unjustifiable detention such as arise on applications for a writ of habeas corpus, the custody or control was ex hypothesi unlawful: the question was whether it existed in fact.

4. The Advocate-General then made reference to two Division Bench judgments of this Court in which, he submitted, an objection to maintainability was taken, but not in the precise terms in which he took it before us. The first was the judgment in Mohiuddin v. State of Maharashtra5. In that matter the learned Government Pleader, Mr. M. R. Kotwal, contended on behalf of the State Government that until the order of detention was communicated to the intended detenu it did not become effective and did not confer any cause of action upon the intended detenu to challenge it. This preliminary objection was, however, not pressed by Mr. Kotwal in view of the fact that, subsequent to the issuance of the detention order, a notification in the Official Gazette had been published under the provisions of section 7 of the Act and he did not dispute that that publication amounted to a communication of the detention order. The Advocate-General submitted that, inasmuch as that judgment proceeded upon a concession, it should not be taken as having any binding effect upon this point.

5. The second Division Bench judgment was the judgment (unreported) in Manoharlal Narang v. Union of India6. In that matter Mr. Kotwal, again appearing on behalf of the State G