BABU Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) This is a petition under section 491 of the Code of Criminal Procedure by Babu son of Mohd. Ismlil for the issue of a writ of Habeas Corpus. He has filled this petition as next friend seeking the release of Abdullah Showkat son of Karamat Ali Khan who has been detained under rule 30 of the Defence of India Rules, 1962. The petitioner alleges that in November, 1963, some persons were arrested for smuggling of gold and Abdullah Showkat (hereinafter referred to as the detenu) was suspected of having a hand in the said smuggling. His house was, therefore, searched but nothing incriminating was. recovered. On November 14, 1963, another search was made on the house of the detenu but again nothing was recovered. He was then taken to the Court of Mr. Kakar, Magistrate 1st Class, Delhi, and was arrested under section 104 of the Customs Act, 1962. Thereafter he was enlarged on bail and on March 10,1964, he went to Pakistan under a passport issued by the Indian Authorities. The petitioner further alleges that the detenu had gone to Pakistan because most of his relatives were there and he wanted to see them. On July 15, 1964, the impugned order of detention was passed by the District Magistrate, Delhi, and on August 6, 1964, the detention case of the detenu was reviewed in pursuance of rule 30-A(6) (b) of the Defence of India Rules, 1962, by the Administrator, who con- firmed the detention order, On September 3, 1964, the detenu returned from Pakistan and on October 29,1964, he made an application for reduction in the bail amount. On November 7, 1964, the above mentioned application was fixed for hearing and on that day it was stated in Court by certain officer of the cistom Department who was present there that the detenu was in Pakistan and should be ordered to b e produced in Court. According to the petitioner that statement by the Custom Officer was incorrect and as a matter of fact the detenu had gone. to Kanpur. On November 17, 1964, the detenu appeared in Court and the bail amount was reduced. As soon as he came out of the Court room the detention order dated July 25, 1964, was served on him and he was taken in custody. The order of the Administrator reviewing the detention order was served on the detenu on November 23, 1964.

(2.) Mr. C. L. Sareen, learned counsel for the petitioner has submitted that (1) the order of detention is maid fide and (2) that under subrule 6(b) of rule 30-A of the rules the administrator could only confirm the detention or cancel the detention order. Since the detenu was not in custody on August 6, 1964, when the detention order was reviewed there has been no valid review as required under rule 30-A.

(3.) In support of the first point Mr. Sareen contends that (a) the detaining authority has not applied its mind to the facts of the case but has merely signed a cyclostyled order ; (b) the affidavits of the District Magistrate does not disclose any proper details about the objectionable activities of. the detenu. Noticing has been said in the affidavit as to how and in what manner was the det"'nu involved in the smuggling; (e) even according to the affidavit of the District Magistrate it was known to the authorities as early as October 1963 that the detenu was acting as the Agent of the gang of smugglers but still nothing was done to apprehend him till November 19, 1964, in spite of the fact that the order of detention had been passed in July 1964, and the detenu had returned to India from Pakistan on September 3, 1961 and (d) the object of rule 30 of the Defence of India Rules, 1962, is to prevent a person from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the inamtenancc of peaceful conditions in any part of India, the efficient conduct of military operations or the maintentenace of supplies and services essential to the life of the Community. Since the detenu was not in country from March to September 1964, an order for detention of July 25, 1964, could neither be justifidd nor bona fide.