SHARMA, J. - (1.) ISHWAR Dass Moolrajani, petitioner herein, has approached this Court with the prayer that his custody be declared illegal and a writ in the nature of Habeas Corpus be issued directing release of the petitioner forthwith.
(2.) AS per the facts stated in the writ petition the petitioner has been engaged in the trade of manufacture and sale of wrist watches `rochees' known for low priced watches to cater the need of masses who cannot afford costly watches. The Custom Authorities acting on the false information and frivolous insinuations propagated by the business rivals, initiated inquiry which culminated in arrest of petitioner on July 24, 2006. It is averred by the petitioner that arrest of the petitioner as well as orders granting remand by learned Additional Chief Judicial Magistrate (Economic Offences) Jaipur City are per se violative of statutory mandate of Articles 21 and 22 of the Constitution of India. The reasons as stated in writ petition are:- IN REGARD TO ARREST: (i) The arrest was made contrary to the pre-condition required under section 135 (1) (a) of the Customs Act 1962 (for short `the Act' ). The provision of Section 135 (1) (a) always apply in PRESENTI. Once assessment was officially made under section 17 of the Act, the same cannot be reassessed except in special circumstances and that too after following the statutory procedure. Import once assessed and cleared by customs authorities cannot be rendered illegal retrospectively. (ii) Goods of the companies of petitioner cannot be treated as improperly imported goods defined in Section 2 (25) of the Act. Section 111 (m) of the Act can be invoked only at the time when goods are inspected before assessment of customs duty. (iii) The statutory presumption under Section 17 of the Act read with section 114 (e) of the Evidence Act stares in face of arrest. (iv) The statutory estopple gets attracted and goods once assessed and cleared for home consumption cannot entail petitioner's liberty for arrest under section 104 of the Act. (v) Liability to confiscation under Section 122 of the Act is yet to be adjudged. (vi) Mandatory notice under Section 28 of the Act before reopening assessment has not been issued as yet. (vii) At the time of making arrest of the petitioner on July 24, 2006 K. S. Meena, Intelligence Officer DRI Jaipur (Respondent No. 2) had no reasons to believe that the petitioner was, in any way, guilty of offence under Section 135 of the Act. (viii) The arrest of petitioner was unwarranted as the alleged inquiry was at the preliminary stage. Except wild suspicion, there was hardly any tangible material. Even suspicion was yet to be verified and it was practically in nebulous form. IN REGARD TO REMANDS: (i) The statutory requirements to be followed while granting remands were blatantly flouted. (ii) The initial remand was granted without entertaining satisfaction regarding existence of adequate grounds to do so. Such mechanical grant of remand renders the custody illegal. (iii) Whenever remand is granted in invalid exercise of power, the custody is rendered unlawful and remedy of Habeas Corpus gets attracted. (iv) The remand of the petitioner in the instant case, was granted by Sh. Rajendra Kumar Bansal who had no jurisdiction to take cognizance for an offence punishable under Section 135 of the Act. (v) While granting second remand on August 8, 2006 the Learned Magistrate completely ignored the statutory mandate of Section 167 (2) (b) of the Code of Criminal Procedure. The petitioner was not produced before the Magistrate and in his absence remand order was passed. (vi) The learned Magistrate while granting second remand on August 8, 2006 did not care to record his satisfaction regarding existence of adequate grounds for further grant of remand. Non- recording of adequate ground and fact of satisfaction there about, renders the remand illegal. The custody consequently becomes illegal. (vii) Granting of remand under Section 167 Crpc is very much a part of fairness in procedure enshrined in Article 21 of the Constitution. No person can be deprived of his life and personal liberty, except according to procedure established by law. Opportunity of leaving the detenue at the time of granting remand is part of fairness in procedure. The respondents in their return raised objection about maintainability of the writ petition. It is further pleaded that the companies owned and controlled by the petitioner were involved in importing the watch-parts and other items in India suppressing the actual transaction value and mis-declaring the description of goods as well as quantity. Details of suppression and mis-declaration have been incorporated in the reply. Denying the averments made in the petition, it is stated that there was sufficient reasonable belief, in the form of documentary evidence that the petitioner has committed offence punishable under section 135 of the Act therefore he was arrested in accordance with law. It is further pleaded that the learned Magistrate passed the remand orders after having satisfaction regarding existence of adequate grounds. The respondents have also stated that the petitioner has committed white-collar crime, which is injurious to the health of Indian Economy as well as domestic Industry. Being master mind and Influential person, the petitioner is likely to influence other persons/employees/witnesses etc. , who are yet to be examined by DRI. Further a number of imported consignments lying in the factory premises and at various ports are also to be examined. The amount of duty invasion of Rs. 4. 5 Crores have been worked out on the basis of documentary evidence available on record. The respondents have prayed not to grant relief to the petitioner at the crucial stage of investigation in view of fact that huge amount of government revenue is at stake. We have pondered over the submissions advanced before us and scanned the material on record as well as the case law placed for our perusal. The right of personal liberty means in substance a person's right not to be subjected to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification. Every imprisonment is prima facie unlawful and it is for a person directing imprisonment to justify his act. The justification is usually that the person is arrested detained pending trial in court on a charge of crime, or after trial by a court of competent jurisdiction he has been convicted and sentenced to imprisonment or some other kind of detention provided by statute. For wrongful deprivation of liberty the following remedies are available:- (i) Civil Proceedings for damages in respect of false imprisonment. (ii) Criminal prosecution for wrongful confinement. (iii) Application for a writ of Habeas Corpus to obtain release.
(3.) IN origin the writ of Habeas Corpus, found in Edward I's reign, was merely a command by the court to some one to bring before itself person whose presence was necessary to some judicial proceeding. IN other words, it was originally intended not to get people out of prison, but to put them in it. Habeas Corpus was a prerogative writ issued by the King against his officers to compel them to exercise their functions properly. IN the form of HABEAS CORPUS AD SUBJICIENDUM (the form now commonly used) it came to be available, under certain conditions to private individuals. IN the seventeenth century members of the parliamentary opposition imprisoned by Command of the King availed themseleves of the writ to seek release. (1627) The Five Knights case, 3 St. Tr. J. Holdsworth, History of English Law Vol. VI PP. 32-37) and it is from this application that originated its construction importance as the classic British guarantee of personal liberty. There is a difference between Habeas Corpus Ad Subjiciendum and any other Habeas Corpus. The former is a writ of right against which no privilege of person of place can avail. But although a writ of right, it is not a writ of cause, but can only be issued on probable cause. A writ of Habeas Corpus cannot be granted when a person committed to Jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal (Kanu Sanyal vs. Distt. Magistrate Darjeeling (AIR 1974 SC 510 ). It is therefore to be adjudged as to whether the custody of the petitioner is exfacie illegal? ;