SHIVHANKARLAL GUPTA Vs. C T A PILLAI

JUDGEMENT

(1.) These two petitions are filed on behalf of the detenus who have been detained under Section 3(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 as amended and both have been detained by the Order of the Central Government. The petition itself contains several prayers like granting a writ of certiorari for calling the records and quashing the order, or a writ of mandamus, but the petitions read as whole are primarily and mainly for the release of the petitioners from custody which is described as a prison. In essence, therefore, these are petitions for a writ of habeas corpus.

(2.) Such petitions till now were registered by the Office of this Court as criminal applications. The parties also clearly presented them as criminal applications and till the two petitions were so presented as Spl. C. As. they were always numbered as criminal applications. It appears that the understanding, or as is now being styled as misunderstanding, was that such petitions fell under Chapter XXVIII of the Bombay High Court Appellate Side Rules, 1960 and should be marked and registered as criminal applications. It is also supposed that in terms of Rules under that Chapter such applications were to be made to the Division Court taking criminal business of the Appellate Side and accordingly they were being dealt with. When these two petitions were specifically field as Spl. C. As. and were sought to be moved before a Bench of this Court taking constitutional matters, the question arose whether these petitions should be entertained by that Bench at all or they should be marked as Criminal Applications and directed to be presented before the Bench doing criminal business on the Appellate Side.

(3.) The parties pointed out that according to them, the prevalent practice was wrong and illegal. They were right in filling the applications as Spl. C. As. They were, therefore, referred to the learned Chief Justice for seeking appropriate orders. After hearing them, the learned Chief Justice passed the following order: Kantawala, C.J. Spl. C. A. No. 2212 of 1975 and Spl. C. A. No. 2213 of 1975 should be placed before Mr. Justice Deshmukh and Mr. Justice Joshi with liberty to the petitioners or any other party to contend that such matter should be heard by the Division bench taking Constitutional matters. If the learned Judges accept the contention that they should be heard by a Division Bench taking Constitutional matters, then they will give directions for placing them before such a Bench."