TMI Blog1974 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... s engaged in violent and anti-social activities and was for quite some time underground evading arrest by the police. Eventually on 19th August, 1970 the petitioner was arrested by the police alongwith some of his associates from a hideout within the jurisdiction of Phansidewa police station. A huge quantity of arms, ammunition and explosives was found with the petitioner and his associates at the time of the arrest. Phansidewa PS case No. 3 was accordingly registered against the petitioner on 19th August, 1970 under s.5 of the Explosive Substances Act, s. 25 (1) (a) of the Arms Act and ss. 120B, 121A, 122, 309 and 402 of the Indian Penal Code. There was also another case, namely, Phansidewa P.S. Case No. 28 registered against the petitioner on 29th June, 1967 under s. 412 read with s. 34 of the Indian Penal Code. That case was under investigation at the time when the petitioner was arrested. Immediately after his arrest, on the same day, i.e., 19th August, 1970, the petitioner was produced before the Sub-Divisional Magistrate, Siliguri. The learned Sub-Divisional Magistrate, passed an order of remand directing that the petitioner be detained in the District Jail, Darjeeling and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of his detention right from the time of its inception and praying that he may be set free by issue of a writ of habaas corpus. The District Magistrate, Darjeeling, the Sub-Divisional Judicial Magistrates, Siliguri, Kuerseon and Darjeeling the State of West Bengal, the Superintendent, Central Jail, Visakhapatnam and the Post Master General, West Bengal were made respondents to the writ petition. This Court ordered a rule nisi to be issued on the writ petition but directed that the petitioner need not be produced in person. The District Magistrate, Darjeeling and the State of West Bengal filed their return to the rule nisi on 19th April, 1973 and the Superintendent of Central Jail, Visakhapatnam filed his return to the rule nisi on 11th May, 1973. When the writ petition reached hearing, counsel appearing on behalf of the petitioner raised a contention that the writ petition could not be heard by the Court unless the petitioner was produced in person and his argument was that once rule nisi was issued, the Court was bound to order production of the petitioner. Since, this contention raised an important question of law affecting the practice of the Court while dealing with petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeling were, however, made by the Sub-Divisional Magistrate, Darjeeling and the detention of the petitioner in the District Court, Darjeeling was, therefore illegal. C. The officer in charge of the District Jail, Darjeeling was bound to abstain from complying with the warrant for production issued by the Special Judge, Visakhapatnam by reason of S. 6 of the Prisoners (Attendance in Courts) Act, 1955 and the production of the petitioner before the Special Judge, Visakhapatnam pursuant to such warrant for production and his detention in the Central Jail, Visakhapatnam were consequently without the authority of law. Re Grounds A and B. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now welt settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A. K. Gopalan v. Government of India([1966]2 S. C. R. 427 ) : It is well settled th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Jail, Visakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Dar- jeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Visakhapatnam. See para 7 of the judgment of this Court in B. R. Rao v. State of Orissa, (4). The legality of the detention of the petitioner in the Central Jail, Visakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them. Re : Ground 'C' The only question which, therefore. requires to be considered is whether the detention of the petitioner in the Central Jail, Visakhapatnam is illegal. Now the legality of this detention is challenged on the ground that by reason of S. 6 of the Prisoners (At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from complying with the order of production. It reads : 6. Officer in charge of prison when to abstain from carrying out order-Where the person in respect of whom an order is made under section 3- (a) is, in accordance with the rules made in this behalf, declared to be unfit to be removed from the prison where he is confined by reason of sickness or other infirmity; or (b) is under committal for trial; or (c) is under remand pending trial or pending a preliminary investigation; or (d) is in custody for a period which would expire before the expiration of the time required for removing him under this Act and for taking him back to the prison in which he is confined; the officer in charge of the prison shall abstain from carrying out the order and shall send to the Court from which the order had been issued a statement of reason.-, for so abstaining : But there is a proviso to this section which carves out an exception in the following terms : Provided that such officer as aforesaid shall not abstain where- (i) the order has been made by a criminal Court; and (ii) the person named in the order is confined under committal for trial or under remand pen ..... 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