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IN THE HIGH COURT OF JUDICATURE AT PATNA
SUDHIR SINGH, SHAILENDRA SINGH, JJ.
Lallan Chouhan Son of Badri Chouhan - Appellant
Versus
The State of Bihar – Respondent
Criminal Writ Jurisdiction Case No.1435 of 2022
Decided on : 13-12-2022
HABEAS CORPUS - Challenge to Judicial Custody Order - N.D.P.S. Act 1985, Section 8(b)(c), 20(a)(b) - The court discussed the maintainability of a writ of habeas corpus in the case of detention by virtue of a judicial order, citing the law laid down by the Full Bench of Patna High Court and the Hon’ble Supreme Court in Gautam Navlakha vs. National Investigation Agency. The court found that the order of remand was not mechanical and did not suffer from the vice of illegality, thus ruling that the habeas corpus writ application was not maintainable.
Fact of the Case:
The petitioner seeks to challenge the order remanding him to judicial custody in connection with a case under the N.D.P.S. Act 1985, where he was accused of farming and trading ganja. The petitioner argues that the order of remand was passed in a mechanical manner and suffers from the vice of non-application of judicial mind.
Finding of the Court:
The court found that the order of remand was not mechanical and did not suffer from the vice of illegality, thus ruling that the habeas corpus writ application was not maintainable.
Issues: The main issue was the maintainability of the habeas corpus writ application in challenging the order of remand passed by the Sessions Judge.
Ratio Decidendi: The court relied on the law laid down by the Full Bench of Patna High Court and the Hon’ble Supreme Court in Gautam Navlakha vs. National Investigation Agency to determine the maintainability of the habeas corpus writ application.
Final Decision: The court ruled that the habeas corpus writ application was not maintainable as the order of remand was not found to be mechanical or suffering from the vice of illegality.
ORDER :
SUDHIR SINGH, J.
1. The petitioner in the present habeas corpus writ application prays for the following reliefs:-
“(i) ukjnhxat Fkkuk dk.M la[;k& 49@2022@ P.T.N. 705/2022 /kkjk &8(b) (c), 20(9)(b) N.D.P.S. ,DV 1985 esa ikfjr ekuuh; l= U;k;/kh'k uoknk dk vkns'k fnukad 04-11-2022 dks voS| ?kksf"kr fd;k tk;s] ftlds }kjk vkosnd dh fxjrkjh dks fnukad& 17-11-2022 rd vkxs cढk;h xbZ gSA
(ii) rnuqlkj] ukjnhxat Fkkuk dk.M la[;k 49@2022 P.T.N.-705/2022 esa vkosnd dks dkjkxkj ds fujks/k ls Lora= djus dk vkns’k ikfjr fd;k tk;A
(iii) dksbZ vU; vkns'k@funsZ'k@fjV tks vkosnd ds ekSfyd vf/kdkjksa dk izR;kofrZr djus ds fy, vko';d gks] mls ikfjr fd;k tk;A
2. From perusal of the aforesaid reliefs sought for in the present habeas corpus writ application, it appears that the petitioner intends to challenge the order dated 04.11.2022 passed by the Court of Sessions Judge, Nawada in connection with Nardiganj P.S. Case No.49 of 2022 and declare the same to be illegal, by virtue of which the petitioner has been remanded to judicial custody till 17.11.2022. The petitioner, in consequence of the aforesaid relief, further prays for his release from the undergoing detention in connection with the present case.
3. The facts leading to filing of the present application is that a written report was filed by A.S.I. Mr. Sunil Kumar Singh, who happens to be the informant of the present case stating therein that on 04.03.2022 around 10 in the morning he received a secret information that six named accused persons including this petitioner are indulged in farming and trade of ganja. After informing his senior officials, the informant went to the channa-chatar village and saw that five to six persons were running trying to escape from their respective houses. The informant along with other police officials tried to apprehend them. However, by taking advantage of the dense population, the accused persons fled away.
4. The local residents of the village and the local chowkidar disclosed the name and other details of the persons, who were seen to be fleeing away. It is relevant to point out here that the name of the petitioner was also revealed by the local residents and chowkidar of the village. When the police requested the people who gathered at the spot, for becoming independent witnesses, nobody came forward and, as such, two chowkidars, who were part of the raiding party, were made witnesses. Thereafter the police searched the houses of the accused persons. During the search, two big plants of ganja were recovered from the land adjacent to the wall situated to the northern side of the house of the present petitioner. After uprooting the said ganja plants, its weight was found to be 7 kgs. From the property of other accused persons also, ganja plants were recovered. Consequently, Nardiganj P.S. case No.49/2022 was registered against the petitioner and five other accused persons under Sections 8(b)(c), 20(a)(b) of the N.D.P.S. Act.
5. In connection with the aforesaid P.S. case, the petitioner got arrested on 03.11.2022 from his house. From perusal of Annexure 3, it appears that a request was made to the District & Sessions Judge, Nawada by the Sub Inspector of Police, Nardiganj, P.S., Nawada to send the petitioner into judicial custody for a fortnight.
6. The petitioner was sent into judicial custody till 17.11.2022 by order dated 04.11.2022 passed by the Sessions Judge, Nawada, which is under challenge in the present habeas corpus writ application.
7. Learned counsel for the petitioner submits that the petitioner is in illegal custody, as the order by virtue of which he has been sent into judicial custody, has been passed in a mechanical manner and suffers from the vice of non-application of judicial mind. It has been argued that no reason has been assigned for sending the petitioner into judicial custody and, therefore, the order under challenge is nullity in the eye of law. Learned counsel for the petitioner has drawn our attention to the judgment rende
Point of law : Where the custody of the petitioner corpus as been handed over as per a judicial order passed a Judicial Magistrate or a court of competent jurisdiction or a CWC constituted under the ....
A writ of habeas corpus is not maintainable if the petitioner is in judicial custody under valid remand orders, and issues regarding the legality of arrest must be raised at the time of remand.
The rejection of a bail application and the lack of challenge to a judicial remand order render a habeas corpus petition unsustainable.
The main legal point established in the judgment is the requirement of a valid remand order under CrPC 167 and 309 to maintain the legality of the custody and the continuity of custody with the court....
The requirement to provide written grounds for arrest is a constitutional mandate; failing this renders the arrest and consequent remand illegal, entitling the individual to immediate release.
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