Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 133 (ALL)

Gulsher v. Union Of India

2019-01-17

AJIT SINGH, VIPIN SINHA

body2019
JUDGMENT : Heard Shri A. K. S Vaishya, Advocate, holding brief of Sri Nirbhay Singh, learned counsel for the petitioner, Shri Thakur Azad Singh, learned counsel for the Union of India and Shri Patanjali Mishra, learned AGA for the State. 2. The present writ petition which is in the nature of Habeas Corpus has been filed seeking release of detenue Gulsher son of Baraku @ Nizamuddhin, from alleged illegal detention and quashing of the detention order dated 05.02.2018 passed under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the 'Act') and all consequential orders by means of which the detention order has been extended for a period of three months each from time to time. The reliefs as sought in the present writ petition are herein as under: (I) Issue a writ, order or direction in the nature of habeas corpus to quash the impugned order of detention dated 05.02.2018 passed by the respondent no.3 and order dated 27.02.2018 passed by respondent no.3 and order dated 16.02.2018, 22.03.2018 and order dated 27.04.2018 extend the detention period for six months passed by the respondent no.2 also passed by respondent no.2 vide Annexure Nos. 1, 2, 3, 4 of this writ petition and set the petitioner Gulsher at liberty. (II) Issue any other writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (III) Award the costs of the writ petition in favour of the petitioner.” 3. We have heard learned counsel for the parties and we have also perused the record as has been produced before this Court. 4. The detention order, for quashing of which the present HCWP has been filed, is dated 05.02.2018, initially for a period of three months, which was subsequently approved on 16.02.2018 and thereafter, has been extended vide three different orders for a period of three months by each order. The order a are dated 22.04.2018, 26.07.2018 and 25.10.2018. 5. At the very outset it may be noted that in the FIR which ultimately culminated in the passing of the present preventive detention order, which is under challenge, the petitioner Gulsher was named alongwith a number of other persons. Two of whom are Noorey Alam and Sahbey Alam. The order a are dated 22.04.2018, 26.07.2018 and 25.10.2018. 5. At the very outset it may be noted that in the FIR which ultimately culminated in the passing of the present preventive detention order, which is under challenge, the petitioner Gulsher was named alongwith a number of other persons. Two of whom are Noorey Alam and Sahbey Alam. The Court has been informed that against the said two persons also preventive detention order were passed and the detention order passed against Noorey Alam was challenged by him by means of filing a Habeas Corpus Writ Petition No. 3279 of 2018 (Noorey Alam Vs. Union of India and 5 Others), which has been heard and allowed by another Bench of this Court vide order dated 08.10.2018. Similarly the other accused Sahbey Alam has also challenged the detention order under the National Security Act, by means of filing a Habeas Corpus Writ Petition No. 3281 of 2018 (Sahbey Alam Vs. Union of India and 5 Others) and the said writ petition has also been allowed by another Bench of this Court vide order dated 08.10.2018. In both the cases, similar plea was taken as has been taken in the present habeas corpus writ petition, in which, the detention orders were quashed and the petitioner in those cases were set at liberty forthwith. 6. The contention of counsel for the petitioner is that the detaining authority while recording its satisfaction has failed to record as to how and under what manner it can be said that the criminal law machinery is not sufficient or effective enough to deal with the situation and as to why the provisions of National Security Act have to be invoked in the present case. It has further been contended that a bare perusal of the first information report, shows that it is a pure law and order situation and does not give rise to any public order situation, where the society at large may be said to be at danger or its interest is in dangere. 7. Briefly stated fact of this case are that on 11.01.2018, an incident had taken place in which the petitioner along with his accomplices had forcibly tried to take away "Puwal" belonging to Mahendra Kumar, however, on the intervention of villagers, the dispute between the petitioner and Mahendra Kumar, Dharmendra Kumar and others was amicably settled. 7. Briefly stated fact of this case are that on 11.01.2018, an incident had taken place in which the petitioner along with his accomplices had forcibly tried to take away "Puwal" belonging to Mahendra Kumar, however, on the intervention of villagers, the dispute between the petitioner and Mahendra Kumar, Dharmendra Kumar and others was amicably settled. However on 12.1.2018 at about 8:00 P.M. while Mahendra Kumar, his brother Dharmendra Kumar and their other friends were having tea at the shop of one Munna Lal, the petitioner along with Nadeem Waseem stabbed Mahendra Kumar and his brother Dharmendra Kumar with knife and immediately after the incident, the petitioner and his other accomplices and one Noore Alam, Gulsher, Waseem and other persons belonging to Muslim Community who were armed with country made pistol, bombs, baton, sticks, stones and brickbats started terrorizing the people. An FIR with regard to the aforesaid incident was registered against the petitioner and companions Nadeem and others at P.S. Ghoorpur, which was registered as Crime No.0007 of 2018 under Sections 147, 148, 323 307 IPC and 7th Criminal Law Amendments Act. 8. The members belonging to the Hindu Community protested against the aforesaid activity of the petitioner and his companions and started shouting anti-Muslim slogans and when they reached Patel crossing in a procession and joined Mahan Singh and other members of the Hindu Community who had already gathered there, the petitioner and other members of the Muslim community also assembled there and started raising anti-Hindu slogans and threatened to indulge in violence. 9. Considering the seriousness of the situation, S.D.M. Karchana, C.O. Karchana, officers of Revenue and Police departments and police force of Police stations Lalapur Bada, Shankargarh, Kodihar, Naini Industrial Area Karchana, Koranv, Khiri, Meja etc. reached the place of occurrence to defuse the situation and to maintain peace, law and order. But the petitioner and his companions started pelting stones at the members of the public and police force. In the incident, several police officers received injuries, the normal life was totally disturbed. There was panic all-around, villagers had shut their shops and fled on account of terror, people hid themselves in their houses. With regard to the said offence, an FIR was lodged by the SHO at P.S. Ghoorpur as Case Crime No. 0008 of 2018 147, 148, 149, 332, 333, 341, 336, 307, 504, 506 IPC and 7th Criminal Law Amendments Act. 10. With regard to the said offence, an FIR was lodged by the SHO at P.S. Ghoorpur as Case Crime No. 0008 of 2018 147, 148, 149, 332, 333, 341, 336, 307, 504, 506 IPC and 7th Criminal Law Amendments Act. 10. The aforesaid incident which had taken place on 12.01.2018 was given wide publicity in several daily news papers like Amar Ujala and Hindustan. 11. On account of being accused in the aforesaid case, the petitioner was arrested and subsequently granted bail in case crime no. 7 of 2018 on 08.02.2018. 12. From the counter affidavit filed on behalf of the Under Secretary Home(Confidential) Department, U.P. Civil Secretariat, Lucknow, it crystallizes that the detention order dated 05.02.2018, the grounds for detention and all other documents, forwarded by the District Magistrate, Allahabad vide his letter dated 05.02.2018 were received by the State Government on 07.02.2018 and the State Government gave its approval to the detention order on 16.02.2018, and the approval of the detention order was communicated to the petitioner through the district authorities by the State Government radiogram and letters, both dated 16.02.2018, that is, within 12 days from the date of the detention order being passed. It has been further shown that the copy of the detention order, the grounds for detention and all other connected documents, received from the District Magistrate, Allahabad, were sent to the Central Government by Speed Post on 19.02.2018 within seven days from the date of approval by the State Government, as required under Section 3 (5) of the Act. The petitioner was detained under the Act on 05.02.2018 i.e. on the date of service of detention order upon the petitioner and the case of the petitioner was referred to the U.P. Advisory Board (Detentions), Lucknow by the State Government by forwarding the detention order, grounds of detention and all other connected papers on 16.02.2018. The copy of the petitioner’s representation dated 20.02.2018 alongwith parawise comments was received in the concerned Section of State Government on 23.02.2018 alongwith letter of the District Magistrate, Allahabad dated 21.02.2018 and the State Government sent copies of the representation and parawise comments thereon to the Central Government, New Delhi and to the U.P. Advisory Board (Detentions) vide its separate letters dated 26.02.2018 (as 24.02.2018 and 25.02.2018 were holidays on account of the Saturday and Sunday). Thereafter, the concerned Home Department of the State Government examined the representation on 27.02.2018. It has been further mentioned in the said counter affidavit that the Special Secretary examined the representation on 28.02.2018 and submitted it to the Secretary and the Secretary Government of Uttar Pradesh Lucknow examined the representations on 05.03.2018 (as 01.03.2018, 02.03.2018, 03.03.2018 and 04.03.2018 were holidays on account of Holi as well as Saturday and Sunday) and the representation was duly rejected by the State Government on 05.03.2018. The information of rejection of representation was communicated to the petitioner through the District authorities by the State Government radiogram dated 06.03.2018. The copy of the petitioner’s father representation dated Nil alongwith parawise comments was received in the concerned Section of the State Government on 05.03.2018 alongwith letter of District Magistrate, Allahabad dated 27.02.2018 and the State Government sent the copies of the same to the Central Government, New Delhi and to the U.P. Advisory Board (Detentions) vide its separate letters, both dated 06.03.2018, thereafter, the concerned section, of the Home (Gopan) Anubhag-6 of the State Government examined the representation on 07.03.2018. After due consideration the said representation was rejected by the State Government on 13.03.2018. The information of rejection of the representation was communicated to the petitioner through District authorities by the State Government radiogram dated 13.03.2018. It has been further mentioned in the said counter affidavit that the U.P. Advisory Board, Lucknow vide its letter dated 08.03.2018, informed the State Government that the case of the petitioner would be taken up for hearing on 14.03.2018 and directed that the petitioner be informed that if he desires to attend the hearing before the U.P. Advisory Board alongwith his next friend, he could do so. This facts was accordingly communicated to the petitioner through district authorities by the State Government radiogram dated 09.03.2018, thereafter, the petitioner appeared fro personal hearing before the U.P. Advisory Board on 14.03.2018 and the U.P. Advisory Board heard the petitioner in person and submitted its report to the State Government stating that there is sufficient cause for the preventive detention of the petitioner under the National Security Act, 1980. The said report was received in the concerned section of the State Government on 19.03.2018 through the letter of Registrar, U.P. Advisory Board (Detentions) dated 19.03.2018 within seven weeks from the date of detention of the petitioner, as provided in Section 11(1) of the Act. It is also submitted that after receiving of the said report of the State Government once again examined afresh the entire case of the petitioner alongwith the opinion of the U.P. Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention for a period of three months at first instance the date of actual detention of the petitioner i.e. 05.02.2018. Accordingly, orders of confirmation and for keeping the petitioner under preventive detention for three months from the date of his actual detention under the said Act, were issued by the State Government through radiogram and letter, both dated 22.03.2018. 13. Learned counsel for the petitioner submitted that a valid detention order should reflect that the authority was aware that the detenu was already in prison under judicial custody and there was reliable material before him on the basis of which he had reason to believe that there was every possibility of the detenu being released on bail and in case of such release the detenu would indulge in prejudicial activities and in order to prevent him from indulging in any activities affecting the public order or the tranquility of the community, it was imperative to pass an order for his preventive detention and unless the aforesaid satisfaction is recorded, the application of mind by the detaining authority cannot be proved and testing the impugned order on the aforesaid principle, the impugned order appears to suffer from vice of complete non application of mind. 14. Learned counsel for the petitioner next submitted that since on the date of the passing of the detention order, the petitioner was already in jail and mere possibility of his release on bail was not enough for preventive detention unless there was material before the respondent no.3 justifying the apprehension that detenu would indulge in prejudicial activities in case of his release on bail. He next submitted that although the detaining authority has in the grounds of detention recorded his satisfaction that the petitioner who was in jail on account of his being accused in Crime No.0007 of 2018 under Sections 147, 148, 323 307 IPC and 7th Criminal Law Amendments Act. P.S. Ghoorpur District Allahabad, had moved a bail application before the Sessions Judge and there was strong possibility of his being released on bail and in the eventuality of his being released on bail he would again indulge in similar activities prejudicial to the public order but in the instant case there was no material made apparent on record that the detenu if released on bail was likely to indulge in activities prejudicial to the maintenance of public order and hence the impugned detention order cannot sustained and is liable to be set aside. In support of his aforesaid submissions, learned counsel for the petitioner has placed reliance on Shashi Agarwal Vs. State of U.P. and others reported in 1988 (1) SCC 436 and Rameshwar Shaw Vs. District Magistrate, Burdwan & another reported in AIR 1964 SC 334 . 15. Per contra, learned AGA submitted that the impugned detention order does not suffer from any illegality or infirmity requiring any interference by this Court. He further submitted that there was sufficient material before the respondent no.3 justifying his belief that in case the detenu was released on bail, he would again indulge in activities disturbing the public order. 16. We have very carefully scanned the impugned order and the grounds of detention and also the counter affidavits filed on behalf of the respondent nos. 1 to 3 and 4 in this writ petition and we are constrained to observe that no material justifying the apprehension that detenue would indulge in prejudicial activities in case of his being released on bail was placed before the respondent no.3. In our opinion the bald statement made in the grounds of detention that the petitioner upon being released on bail would repeat his criminal activities prejudicially affecting the maintenance of public order, was not enough to justify passing of an order of preventive detention against him. We stand fortified in our view by the law laid down by the Apex Court in the case of Rameshwar Shaw (supra) and Shashi Agarwal (supra). 17. We stand fortified in our view by the law laid down by the Apex Court in the case of Rameshwar Shaw (supra) and Shashi Agarwal (supra). 17. The Hon'ble Apex Court in paragraphs 9 and 10 of its judgment rendered in the case of Rameshwar Shaw (supra) has observed as hereunder :- "9. It is also true that in deciding the question as to whether it is necessary to detain a person, the authority has to be satisfied that if the said person is not detained, he may act in a prejudicial manner, and this conclusion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activities of the said person. When evidence is placed before the authority in respect of such past conduct of the person, the authority has to examine the said evidence and decide whether it is necessary to detain the said person in order to prevent him from acting in a prejudicial manner. That is why this Court has held in Ujagar Singh v. The State of Punjab and jagjit Singh v. The State of Punjab that the past conduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. 10. In this connection, it is, however, necessary to bear in mind that the past conduct or antecedent history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. It would, for instance, be irrational to take into account the conduct of the person which took plate ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary. In other words, where an authority is acting bona fide and considering the question as to whether a person should be detained, he would naturally expect that evidence on which the said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about the validity of the satisfaction of the authority will have to be considered on the facts of each case. The detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said detention must be carefully and solemnly considered." 18. Similarly the Apex Court in paragraphs 8, 9, and 10 of its judgment rendered in Smt. Shashi Agarwal (supra) which are being reproduced hereinbelow has held as hereunder:- "8. The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows. Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary. 9. We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Milan's case (supra). 9. We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Milan's case (supra). In Ramesh Yadav v. District Magistrate Etah and Ors., [1985] 4 SCC 232 at p. 234, this Court observed: "On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised;. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed." What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act. 10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed: "A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. That has been made clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed: "A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens." 19. In the instant case, there was no material made apparent on record that the detenue, if released on bail, will indulge in activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the petitioner who was in jail had moved an application for bail and there was strong possibility of his being released bailed out. We do not think that the impugned order of detention can be justified on that basis. 20. The counsel for the petitioner has also drawn attention of the Court to the judgment and orders dated 08.10.2018 passed in the matter of the other co-accused Noorey Alam and Sahbey Alam, which is also been perused by the Court and the Court finds, that the detention order in the present case passed on the same ground as in the case of Noorey Alam and Sahbey Alam, as the grounds under challenged are also similar. 21. Much has been contended by the counsel for the petitioner to the effect that the present is a case of only simple “law and order” and will not fall within the category of “public order”. The questions of “law and order” and “public order” have been engaging the attention of the Court since time immemorial. A perusal of relevant case law in this regard would show that “public order” indicates something more than “law and order”. The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquility and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State. 22. In Dr. Ram Manohar Lohia vs. State of Bihar and others, 1966 AIR 740, it has been held by the Apex Court that any contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against “law and order”, “public order” and “security of the State” are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but in fact it was a solitary case of robbery, it was held that mere citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the detenu from acting in any manner prejudicial to the maintenance of public order. 23. Thus a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the detenu from acting in any manner prejudicial to the maintenance of public order. 23. The determining test in all such cases is “the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed.” The expression “law and order”, “public order” and “security of the State” are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. (Dr. Ram Manohar Lohia vs State of Bihar and others, AIR 1966 SC 740 ). 24. In Mrs. T. Devaki vs. Government Of Tamil Nadu and others, reported in AIR 1990 SC 1086 , the Apex Court has held that single incident of murderous assault on the Minister in a public place was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. The incident did not and could not affect public peace and tranquility nor it had potential to create a sense of alarm and insecurity in the locality. The solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. 25. The solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order. 25. Learned counsel for the petitioner has further submitted that this is a solitary case and thus, there was no occasion for the detaining authority to have passed the preventive detention order. Reliance has been placed in this regard on the judgment of the Apex Court rendered in the case of Rekha vs. State Of Tamilnadu through Secretary to Government, reported in AIR 2011 (5) SCC 244 , wherein the Apex Court has held that if recourse to criminal proceedings would be sufficient to deal with alleged prejudicial activities, then the detention order would be illegal. Even If a person is liable to be tried in a criminal court for commission of a criminal offence or is actually being so tried, but the ordinary criminal law (IPC or the penal statutes) will not able to deal with this situation, then and only then, the preventive detention law be taken recourse to. 26. It has been contended that in the present case it has not been shown that the detaining authority that the detaining authority has applied its mind to the aforesaid fact as to how and under what circumstances can it be presumed that the criminal law machinery of the State by itself is not sufficient to deal with the situation at hand. 27. Reference may also be made to a judgment of the Apex Court rendered in the case of Ramveer Jatav vs. State Of U.P. and others reported in AIR 1987 SC 63 , wherein the Apex Court has observed that it is difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the petitioner would have disturbed public order as distinct from law and order or that one single act committed by the petitioner was of such a character that it could reasonably be inferred by the detaining authority that if not detained, he would be likely to indulge in such activity in future. 28. 28. In the aforesaid case, an incident had taken place in broad day light incident in which some persons had indulged in an act of firing and killing the deceased near the clinic. 29. Reliance has also been placed on another judgment of the Apex Court rendered in the case of Subhash Bhandari vs District Magistrate Lucknow, reported in AIR 1987 (4) SCC 685 . 30. In view of the facts and circumstances, the detention order dated 05.02.2018 and all subsequent orders by means of which the detention has been extended are hereby quashed. The petitioner Gulsher shall be set at liberty forthwith, until and unless he is wanted in some other case. 31. The habeas corpus writ petition is accordingly allowed.