WRIT OF HABEAS CORPUS SHALL NOT BE MAINTAIANBLE WHEN A PERSON IS IN THE CUSTODY ON THE BASIS OF ORDERS PASSED BY AN AUTHORITY OF COMPETENT JURISDICTION

[Mr. M. GOVINDARAJAN]

Writ of habeas corpus

A writ of habeas corpus (which literally means to "produce the body") is a court order to a person or agency holding someone in custody (such as a warden) to deliver the imprisoned individual to the court issuing the order and to show a valid reason for that person's detention.  A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody.

Habeas corpus is part of a twofold process. In a petition for habeas corpus, a prisoner (or another interested party) raises doubts about the legality of his or her imprisonment. If the petition is successful in demonstrating that the imprisonment justifies an examination, a judge will issue a writ of habeas corpus.

The Article 226 of the Constitution empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose.

Maintainability of writ of habeas corpus

The writ of habeas corpus is maintainable before the High Court if the detention is illegal.  At the same time the writ of habeas corpus is not maintainable if the petitioner is in custody as per judicial orders passed by the Court of competent jurisdiction.  The Larger bench of the Supreme Court in ‘State of Maharashtra & Ors. Vs. Tasneem Rizwan Siddiquee, 2018 (9) TMI 1782 - SUPREME COURT OF INDIA’ held that writ of Habeas Corpus under Article 226 of the Constitution of India shall not be maintainable when a person is in custody on the basis of orders passed by a Court of competent jurisdiction.

The Supreme Court in the above case observed as follows-

“9. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father v. Jailor, Koneila Jail and Anr., 2014 (7) TMI 1223 - SUPREME COURT and Manubhai Ratilal Patel v. State of Gujarat and Ors. 2012 (9) TMI 1080 - SUPREME COURT. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18th /19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No.I-31 vide order dated 17th March, 2018 and which police remand was to ensure till 23rd March, 2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued.”

Arrest under CGST Act

Section 69 of CGST Act gives powers to the Authorities to arrest a person.  Section 69(1) provides that where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorize any officer of central tax to arrest such person.

Section 69(2) provides that where a person is arrested under sub-section (1) for an offence specified under sub-section (5) of section 132, the officer authorized to arrest the person shall inform such person of the grounds of arrest and produce him before a Magistrate within 24 hours.                

Section 69(3) provides that subject to the provisions of the Code of Criminal Procedure, 1973 –

• where a person is arrested under sub-section (1) for any offence specified under sub-section (4) of section 132, he shall be admitted to bail or in default of bail, forwarded to the custody of the Magistrate;
•  in the case of a non-cognizable and bailable offence, the Deputy Commissioner or the Assistant Commissioner shall, for the purpose of releasing an arrested person on bail or otherwise, have the same powers and be subject to the same provisions as an officer-in-charge of a police station.

In ‘Mandeep Dhiman v. Deputy Director, Directorate General of GST Intelligence and others’ – 2019 (3) TMI 1072 – Punjab & Haryana High Court, the present writ petition under Articles 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for issuance of writ of Habeas Corpus commanding the respondents to produce detenue – Sammy Dhiman before the Court as he is in illegal detention of the respondents.

The petitioner filed the present petition for issuance of writ especially in the nature of Habeas Corpus commanding the respondents to produce the detenue as he is in the illegal detention of the respondents and has been detailed illegally without following the mandatory provisions of law, on the following grounds-

• That detenue – Sammy Dhiman was issued certain notices under the provisions of the Central Goods and Services Tax Act, 2017, to which he had duly responded. He filed Civil Writ Petition No. 13107 of 2018 before this Court for quashing of notice dated 18.05.2018 and the same was withdrawn on 31.05.2018 with liberty to take recourse to the remedies as may be available to him
• On 3.7.2018, the detenue was illegally arrested by respondent No. 2 without following the mandatory provisions of the CGST Act and Integrated Goods and Services Tax Act, 2017 and no proper procedure was followed by respondent no. 2. On 3.7.2018, signatures of the detenue were obtained on several blank and printed papers without even explaining the contents thereof. Even formal procedure for arrest was completely overlooked.
• On 4.7.2018, the detenue was produced for judicial remand before Chief Judicial Magistrate, Ludhiana and along with application for remand, no formal orders were attached. Chief Judicial Magistrate overlooked the fact that respondent No.2 has not followed the mandatory provisions of law.
• On 11.7.2018, the detenue moved application for bail before Chief Judicial Magistrate, Ludhiana and all the pleas regarding illegality of the proceedings were taken, but Magistrate dismissed the bail application on 17.7.2018 while overlooking all the provisions of law.
• Vide order dated 18.7.2018, Chief Judicial Magistrate, Ludhiana observed that order passed by Additional Director General (Commissioner) to the Intelligence Officer, respondent No.2 were not produced during the course of hearing and it was claimed that the same were confidential report, but nothing was placed on the file of the Court.
• The detenue moved application for bail before Sessions Judge, Ludhiana and in the meanwhile, respondent No.1 had also moved a revision petition against the order dated 18.7.2018 before Sessions Judge, Ludhiana which was not maintainable and the said revision petition was dismissed on 27.7.2018 by Additional Sessions Judge, Ludhiana. However, at that time, Additional Sessions Judge, Ludhiana failed to appreciate that even till the disposal of bail application, respondents No.1 and 2 had not placed on record any such order as required by law despite specific directions issued by Chief Judicial Magistrate to that effect.
• However, on 2.8.2018, respondent No.1 supplied copy of alleged noting/orders passed by Additional Director General (Commissioner). The said order was not signed by the Commissioner and rather the same was countersigned by respondent No.1.

The petitioner further contended that the writ of Habeas Corpus would be maintainable if the detention is illegal. On this point, reliance was placed upon judgment from-

• Apex Court in Madhu Limaye and others Vs. State of Bihar, 1968 (12) TMI 97 - SUPREME COURT, wherein such a view was taken. 
• On the same point, reliance was also placed upon judgment of Punjab & Haryana Court in Madhu Limaya Vs. The State, 1959 (2) TMI 37 - PUNJAB AND HARYANA HIGH COURT.
• Bombay High Court in Vinod Hinigorani Vs. Securities and Exchange Board of Indian, Mumbai, 2015 (4) TMI 413 - BOMBAY HIGH COURT.

The respondents contended that-

• the present writ petition is not maintainable because the and no writ is maintainable on this issue;
• reasoned order had already been passed by the Commissioner and there is absolutely no illegality in the proceedings and as such, the present writ petition is liable to be dismissed.
• writ of Habeas Corpus under Article 226 of the Constitution of India shall not be maintainable when a person is in custody on the basis of orders passed by a Courtof competent jurisdiction.

The High Court dismissed the writ petition as not maintainable, since copy of the order has been placed on the file and the said order was passed by the competent authority in this case giving reasons under section 69 of the CGST Act and on that ground, the present writ petition is not maintainable.