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PUNJAB & HARYANA HIGH COURT
Mehar Singh, A.N.Grover, D.K.Mahajan, H.R.Khanna and S.K.Kapur JJ.
Ram Kumar Pearay Lal
Versus
District Magistrate, Delhi
Criminal Writ No. 10-D of 1965,
Decided On : MAY 28, 1965
HABEAS CORPUS - Successive petitions - Maintainability - Grounds - Mala fide - Omission of ground in earlier petition - Whether second petition competent - Scope of judicial review - Public order - Smuggling - Whether connected with public order - Defence of India Rules, 1962, Rule 30.
Fact of the Case:
The petitioner, a friend of the detenu, filed a petition for a writ of habeas corpus under Article 226 of the Constitution and Section 491 of the Code of Criminal Procedure for the release of the detenu, who was detained under Rule 30(1)(b) of the Defence of India Rules, 1962, on the ground that the detention was mala fide and without any material to connect the activities of the detenu with the maintenance of public order. The petition was dismissed by a Single Judge of the High Court. The petitioner then filed a second petition on the same ground, alleging that the smuggling activities of the detenu were not connected with the maintenance of public order and that the detention was for an ulterior motive and fraud on law. The High Court referred three questions to a Full Bench: (1) whether a second petition for a writ of habeas corpus lies when a similar petition in respect of the same detenu and questioning the same order has been earlier dismissed on merits; (2) whether a person who is neither a friend nor a relation of the detenu can be permitted to apply for a writ of habeas corpus under Article 226 of the Constitution or Section 491 of the Code of Criminal Procedure and if not, is it not open to the Court to issue the necessary writ or order or direction once the invalidity of the detention order is brought to its notice even by a stranger; and (3) whether the detention of a person under Rule 30 of the Defence of India Rules, 1962, can be ordered on the bare allegation that he is engaged in smuggling, has taken to life of crime, is a dangerous character, or has no ostensible means of livelihood.
Finding of the Court:
1. A second petition for a writ of habeas corpus does not lie to the High Court on a ground on which a similar petition has already been dismissed by the High Court. 2. A second petition for a writ of habeas corpus will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and where for some exceptionable reason a ground has been omitted in an earlier petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice. 3. The detention of a person under Rule 30 of the Defence of India Rules, 1962, cannot be ordered on the bare allegation that he is engaged in smuggling, has taken to life of crime, is a dangerous character, or has no ostensible means of livelihood.
Issues: 1. Maintainability of successive petitions for writ of habeas corpus. 2. Locus standi of a person who is neither a friend nor a relation of the detenu to file a petition for writ of habeas corpus. 3. Scope of judicial review of detention orders under Rule 30 of the Defence of India Rules, 1962. 4. Whether smuggling is connected with public order.
Ratio Decidendi: 1. The High Court has the power to issue a writ of habeas corpus under Article 226 of the Constitution and Section 491 of the Code of Criminal Procedure. A decision in a petition for a writ of habeas corpus is a judgment or, in any case, a final order. Therefore, no second petition for a writ of habeas corpus on the same ground, on which a previous similar petition has been refused by the High Court, lies in the High Court. 2. A petition for writ of habeas corpus can ordinarily be filed by the person detained or in custody and can also be filed, on his behalf, by a friend or relation, but not by an utter stranger. 3. The scope of judicial review of detention orders under Rule 30 of the Defence of India Rules, 1962, is limited to the question of whether the detention order is mala fide or not. The Court cannot go into the merits of the case or substitute its own opinion for that of the detaining authority. 4. Smuggling is not directly connected with public order. However, if the smuggling activities of a person are on a large scale and are likely to adversely affect the economy of the country or the security of the State, then such activities may be considered to be prejudicial to the maintenance of public order.
Final Decision: The petition for a writ of habeas corpus was dismissed.
MEHAR SINGH, J.
1. This is a petition by Ram Kumar petitioner under Article 226 of the Constitution and Section 491 of the Code of Criminal Procedure for a writ of Habeas corpus for the production and release of Abdulla Shaukat Detenu from his detention, which is claimed to be unlawful. The petitioner asserts that he is a friend of the detenu.
2. The District Magistrate of Delhi, respondent, made an order on July 25, 1964, under Rule 30(1)(b) of the Defence of India Rules, 1962, for detention of the detenu stating in the order that he was satisfied from information received, that it is necessary to detain Shri Abdulla Shaiikat, son of Shri Karamat Ali Khan, resident of 4416, Gali Shahtara, Ajmeri Gate, Delhi, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. Pursuant to that order the detenu was arrested on November 17, 1964, and since then is detained in Central Jail, Tehar (New Delhi).
3. On December 28, 1964, one Babu, claiming to be partner in business and pairokar of the detenu, moved an application under Section 491 of the Code of Criminal Procedure for release of the detenu. In that application he alleged that in November 1963 contraband gold having been seized at the Punjab-Pakistan border, the customs authorities on suspicion searched the premises of the detenu. They wanted to search his premises again on November 14, 1963, to which he took exception, whereupon he was taken to the Customs Office for interrogation, and was arrested. He was produced before a Magistrate of the First Class who ordered his release on bail. On March 10, 1964, the detenu went to Pakistan to arrange his marriage and after his return lie moved an application on October 29, 1964, before the Sessions Judge of Delhi for reduction of the amount of bail. In that connection he appeared in that Court on November 17, 1964, and when he came out of the Court he was arrested pursuant to the detention order already referred to. The petitioner sought release of the detenu on the ground that the detention is mala fide, with an ulterior purpose and oblique motive without there being any material with the detaining authority and without any incident prior to the order of detention which may be associated with the detenu and would be of the nature that is likely to affect the maintenance of public order, and is fraud on law as the respondent has no material to proceed against the detenu and has adopted this oblique course of detention, without showing that there exists a co-relation between the allegations and the purpose of detention. In substance, the ground is that the order of detention has been made in bad faith without any material with the respondent to connect the activities of the detenu with the maintenance of public order and thus with an ulterior motive. It was also said in the petition that in the order of detention no grounds of detention have been indicated and the detenu has not been made aware of the nature of allegations against him. There is reference in the petition to the action taken against the detenu by the customs authorities, and this gives the clear indication that the petitioner was aware that the detenu had been detained in connection with smuggling activities, but he insisted that there was no past history of the detenu in that respect. In his affidavit the respondent stated that he has material with him showing that the detenu is a member of a gang of Indo-Pakistan smugglers of contraband gold from Pakistan and of currency from India and thus he is a potential danger to the economy of the country and risk to the security of the State and hazardous to public order. He further pointed out that on the material before him the facts available to him are that on October 28, 1963, the Amritsar Police recovered 30 kilograms of gold with foreign marking near Beas bridge from Manohar Lal and others in a car and, during the course of investigation, it was revealed that that gold
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