SONI NATVERLAL PRABHUDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner No. 1 Soni Natverlal Prabhudas is an elder brother of petitioner No. 2 Soni Jinabhai alias Hasmukhlal Prabhudas who has been added as petitioner No. 2 during the pendency of this application vide order dated 22-3-1982. The petitioner No. 2 had purchased allegedly in good faith a golden chain weighing 1 Tola and 10 annas for Rs. 2840.00 (rupees two thousand eight hundred forty only) at his aforesaid shop at Viramgam in the afternoon on 22-2-1982 from a person who introduced himself to be belonging to village Panar Taluka Viramgam which is at a distance of about 10 Kms. from Viramgam. The petitioner No. 2 had no reason whatever to suspect the said property to be a stolen one at the time of the aforesaid purchase. It is alleged that petitioner No. 2 paid a reasonable market price for the said property as stated above.

(2.) This application was presented by the petitioner No. 1 on 19 while the petitioner No. 2 was in Police custody on account of the aforesaid remand order. It is submitted that the arrest of the petitioner No. 2 was not only illegal unconstitutional and without jurisdiction but the same was also mala fide. Hence this application was originally filed by the petitioner No. 1 to challenge the propriety legality constitutionality correctness and validity of the arrest of the petitioner No. 2 as well as the subsequent order of remand to the Police custody passed by the respondent No. 5. As pointed out earlier the petitioner No. 2 has been added as a party later by an amendment order dated 22-3-82 as by that time the respondent No. 5 had rejected the request of the investigating agency for further remand of accused No. 2 and as consequently accused No. 2 was released from the custody.

(3.) The application is filed under Articles 226 and 227 of the Constitution of India for the enforcement of the fundamental rights under Articles 21 and 22(1) of the Constitution of India and statutory right under sec. 50(1) of the Criminal Procedure Code. It is filed on the basis of the following main contentions :