S. Sagir Ahmad, J. - (1.) THIS petition was allowed by us by our short order dated 2-12-1988. We now proceed to give our reasons.
(2.) BY i this petition, filed under Article 226 of the Constitution, the petitioners have challenged their detention in the Central Jail, Naini, Allahabad. The petition was filed on 24-10-1988 after giving no ice to the Senior Standing Counsel of tbe Central Government. On that date an order Was passed that the case shall come up for final hearing on 28-10-1988. It was further directed that the remand papers shall be brought to this court through special messenger from the court of the Special Chief Judicial Magistrate, Allahabad. The remand papers were brought from the court of the Special Chief Judicial Magistrate, Allahabad and were produced before us.
(3.) THE case of the petitioners' is that they are the Cleaners of trucks. On 1-10-1988 at about 7 a.m. they were arrested by the Custom authorities at a tea shop situate near the Chakwa barrier in between Tulsipur and Balrampur in district Gonda and were detained by the custom authorities illegally in their custody prior to their being sent to jail on 4-10-1988. THEy were not produced before any Magistrate within 24 hours of their arrest and, therefore, their detention in Central Jail, Naini, Allahabad where they were lodged, was absolutely illegal. On notice of this petition being given to the counsel for the opposite parties, they filed a counter affidavit on 3-11-1988 to which a rejoinder affidavit dated 4-11-1988 was filed. The opposite parties also filed supplementary counter affidavit dated 17- 11-1988 to which a supplementary rejoinder affidavit dated 19-11-1988 was filed on behalf of the petitioners. The opposite parties also filed a supplementary counter affidavit (sworn by Sri G. S. Singh, Arresting Officer) dated 1-12-1988. The case of the opposite parties is that the petitioners were not arrested on 1-10-1988 but were arrested on 3-10-1988 at 7.00 p.m. at Gorakhpur. It is pointed out in the counter affidavit that the copie s of Panchnama (recovery memos) containing the details of the contraband goods and the trucks on which they were being carried were served on the petitioners on 2-10-1988 and that their statements were also recorded on 3-10-1988. Next day i.e. on 4-10-1988 the petitioners were produced before Sri S. P. Misra, Judicial Magistrate 1st Class at 4.00 p.m. as the Special Chief Judicial Magistrate, Allahabad was on leave on that date. and. they were remanded to judicial custody till 18-10-1988. On 18-10-1988 there was no presiding officer in the court of Special Chief Judicial Magistrate and consequently the petitioners were produced before the Addl. Chief Judicial Magistrate, who remanded them to judicial custody till 1-11-1988. On that date, namely, 1-11-1988 the petitioners alongwith other accused were produced before Sri A. N. Kakkar, who was appointed as Special Chief Judicial Magistrate. Allahabad. He remanded them to judicial custody till 3-11-1988 when the petitioners and other accused were again produced before him (Mi A. N. Kakkar) and all of them were remanded to judicial custody till 17 -11-1988. In the meantime a detention order dated 15-11-1988 issued under section 3 of conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974 (hereinafter called "Cofeposa") was issued and served on the petitioners as also the other accused. Sri A. N. Kakkar consequently passed an order on 17-11-1988 that the accused including the petitioners need not be produced for remand in that court, as they have already been detained under COFEPOSA. It is in these circumstances that it is contended by the opposite parties that petitioners' detention being valid is liable to be sustained.;