JAYANTILAL BHAGWANDAS SHAH AND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In these three writ petitions the challenges are directed towards orders of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (now referred to as "the Act"). The intended detenus under these orders are not in detention.

(2.) The learned Advocate-General, appearing of behalf of the State of Maharashtra, raised a preliminary objection to the maintainability of the petitions. It was that the habeas corpus jurisdiction under Article 226 of the Constitution is exercisable only to examine the legality of a detention when there is a detention and in no other case. The Advocate-General submitted that an order of detention cannot be successfully challenged if it has not been executed. In his submission, though the prayers in the petitions seek writs other than the writ of habeas corpus, the petitions are in substance habeas corpus petitions.

(3.) The Advocate-General cited in this regard the judgment of the Federal Court in Emperor v. Keshav Talpade, AIR 1944 FC 22 : (1945-46 Cri LJ 312). This was an application for leave to appeal to the Privy Council against an order made in a detention case by the Federal Court. The Federal Court said that since the original petition, the detenu, has been released by Government, he had no longer any interest in the habeas corpus proceedings and dismissed the application. The Advocate-General then cited the decision of the Punjab High Court in Kidar Nath v. State of Punjab, AIR 1960 Punj 122 : (1960 Cri LJ 390). He placed reliance upon the observation in paragraph 17 thereof, namely, that the writ of habeas corpus was a device for, in the main, obtaining deliverance from unlawful detention and its object was the liberation of those who may be kept wrongfully restrained but it could not be employed as a means of securing judicial determination of any other question or for punishing the respondent or for affording reparation or redress to the person wronged. In Barnardo v. Mary Ford, Gossage's case, 1982 AC 326, referred to by the Advocate-General, Lord Halsbury, LC., said that he could not agree with the view that a writ of habeas corpus might issue when illegal detention had ceased before the application for the writ had been made. In The King v. Secretary of State for Home Affairs, (1923) 2 KB 361, which also the Advocate-General cited, it was said that if the Court was satisfied that the body whose production was asked for was not in the custody, power or control of the person to when it was sought to address the writ, the writ of habeas corpus was not the proper remedy. Again, it was said that in all cases of alleged unjustifiable detention such as arise on applications for a writ of habeas corpus, the custody or control was ex hypothesis unlawful : the question was whether it exited in fact.