Even if The Remand Order is Illegal, Still The Writ of Habeas Corpus Is Not An Effective Remedy, [Read Judgment]

A division bench of Justices SS Shinde and NB Suryawanshi followed the judgment of the Supreme Court in Sourabh Kumar through his father V/s. Jailor Koneila Jail and Anr wherein it was held -

"Even if Magistrate has acted rather mechanically remanded the accused in judicial custody and has taken the process in a cavalier fashion which shows insensitivity towards denial of personal liberty of a citizen, the Writ of Habeas Corpus is not maintainable if there is order of remand, in which case the remedy lies elsewhere."

This is the same case where the High Court in September last year had directed the release of one Arvindkumar Dhakad, father of Happy Dhakad who was also arrested in the said multi-crore gold smuggling scam.

Case Background

According to the DRI, a syndicate has been smuggling gold into India since the year 2016 and more than 200 kgs of foreign origin gold valued at Rs.60 Crores have been smuggled by Nisar Aliyar into India in one container cleared on March 26, 2019 concealing them inside imported metal scrap, part of which has been seized by DRI. The syndicate had smuggled more than 3000 kgs. of gold from July, 2018 to March, 2019 alone which would be valued at more than Rs.1000 Crores.

Happy Dhakad was arrested on March 29, 2019 under Section 104 of the Customs Act, 1962. Thereafter, though his bail application was rejected intially, statutory default bail was granted to him subsequently. Action under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) of detention was not sustained by the Advisory Board and hence he was released. Although his father was a Director in M/s Ekdant Commercial Pvt Ltd, Happy Dhakad looked after all the activities of Ekdant. The current petitioner was an employee of Ekdant.

The DRI alleged that the petitioner had smuggled gold on behalf of M/s.Ekdant. The said fact is also reflected in the Memorandum of Arrest dated August 28, 2019 of the Intelligence Officer of the DRI.

According to the petitioner, on August 27, 2019, at about 6:30 pm, DRI Officers, "without disclosing their identity apprehended the petitioner at an Office in Udaipur, Rajasthan" where he is presently employed. Petition stated-

"The officers were not wearing any badges nor carrying their identity cards. The petitioner was taken to an undisclosed destination at about 9:45 pm in Udaipur, no formal arrest of memorandum served upon the petitioner, he was also not produced before any Court to seek transit remand. The petitioner was interrogated in the absence of any advocate, inspite of orders passed by this Court."

Submissions

Advocate Sebin Joseph appeared for the petitioner and vehemently argued that the petitioner was illegally arrested and detained on August 27, at instance of DRI Officials. Without obtaining transit remand, the petitioner was forcibly taken from Udaipur office of DRI to Mumbai DRI office on August 28, Joseph stated.

Inspite of the fact that the application was filed before the Trial Court opposing remand, pointing out the illegal arrest and non-production of the petitioner within 24 hours, non-obtaining transit remand, the Magistrate has mechanically passed order granting remand, Joseph submitted relying upon 18 judgements in support of her contentions including the Bombay High Court's order in September.

Whereas, the Special Public Prosecutor Jitendra Mishra appeared for Union of India and investigating officer at DRI. Mishra relied upon a total 11 judgements in support of his contentions. He argued that the Writ of Habeas Corpus is not maintainable, since on the date of filing of the petition, Competent Court had authorised the remand of detenue. He further urged that even if for the sake of argument, it is accepted for a moment that the petitioner was not allowed to leave the office of the DRI of the Udaipur, that by itself does not mean that petitioner was arrested and detained. It is argued that an action of the detention at the initial stage cannot invalidate the subsequent detention, which was authorised by the Competent Court.

The DRI authorities, in their additional affidavit, re-iterated that enquiry was made with the petitioner in respect of the seizure of 185 Kg of smuggled gold by DRI at Mumbai. SPP Mishra stated that serious allegations are leveled against the petitioner and prosecuting agency has relevant material to justify the arrest of the petitioner.

Judgment

At the outset, Court observed-

"There is no dispute that the learned ACMM has passed remand orders from time to time and the detention of the petitioner in custody is in pursuance of the remand orders passed by the Competent Court."

After examining the judgments of Supreme Court in Sourabh Kumar (supra), Sadhwi Pragya Singh Thakur V/s. State of Maharashtra, 2011 and Chhagan Bhujbal V/s. Union of India, 2016, the bench noted-

"Taking into consideration the overall facts and circumstances of the case and in view of the serious allegations levelled against the petitioner about his involvement in the multi crore scam of the smuggling of gold in which the petitioner has actively participated, we are not inclined to exercise our discretion in favour of the petitioner for issuance of Writ of Habeas Corpus. The petitioner has efficacious remedy of filing the Bail Application and seeking regular bail before the competent court. The legal position as laid down by the authorities of the Hon'ble Supreme Court and this Court makes it clear that even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remedy, but in terms of the Hon'ble Supreme Court filing of Bail Application in such circumstances is appropriate remedy."

Thus, the petition was dismissed.