Research › Search › Judgment

Uttarakhand High Court · body

2021 DIGILAW 241 (UTT)

Sharukh v. State Of Uttarakhand

2021-04-19

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT Alok Kumar Verma, J. - The present Habeas Corpus Writ Petition has been filed by the petitioner seeking a writ of habeas corpus, directing the Senior Superintendent of Police, Haridwar, respondent No. 2, and the Station House Officer, Police Station-Kotwali Roorkee, DistrictHaridwar, respondent No. 3, to produce the corpus of Sahrukh, the petitioner, who has been illegally detained by the respondent Nos. 2 and 3, in Case Crime No. 787 of 2019, registered with Police Station-Kotwali Roorkee, District Haridwar, for the offences under Sections 8,22, 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act, 1985"). 2. Brief facts of the present case are that on 15.12.2019, at about 20:40 hours, one thousand illegal Buprenorphine injections, a commercial quantity, were recovered from the personal search of the petitioner, conducted in the presence of the Circle Officer of Police, a Gazetted Officer. The petitioner was arrested. After completion of investigation, a charge-sheet was filed against him. 3. Heard Mr. Vinod Sharma, the learned counsel for the petitioner, and Mr. J.S. Virk, the learned Deputy Advocate General for the State of Uttarakhand. 4. Mr. Vinod Sharma, the learned counsel for the petitioner, submitted that on 30.05.2016, on the complaint of the father of the petitioner, one Jahid was arrested by the police under the provisions of the Act, 1985. After registration of the Case Crime No.72 of 2016 against the said Jahid, he was released on bail, and after releasing on bail, the said Jahid, along with the then Sub Inspector Sanjay Singh Negi, SOG Roorkee, District Haridwar, hatched a conspiracy and roped the petitioner in the present case. 5. Mr. Vinod Sharma, the learned counsel for the petitioner, after referring to the judgments of the Hon'ble Supreme Court in the cases of In the Matter of Madhu Limaye and others, (1969) 1 SCC 292 , State of Punjab vs. Devendra Pal Singh Bhullar and others, (2011) 14 SCC 770 , Shafi Mohd. vs. State of Himachal Pradesh, (2018) 5 SCC 311 , Ashok Chauhan vs. State of Uttarakhand, (2018) 2 UD 191, Deputy Commissioner of Income Tax vs. ACE Multi Axes, (2018) 2 SCC 158 , Home Secretary (Prison) and others vs. H. Nilofer Nisha, (2020) 14 SCC 161 , and Paramveer Singh Saini vs. Baljeet Singh and others, (2021) 1 SCC 184 , contended that the respondent Nos. 2 and 3 are having illegal custody of the petitioner. 6. On the other hand, Mr. J.S. Virk, the learned Deputy Advocate General for the State of Uttarakhand, submitted that the petitioner is in custody in pursuance of a judicial order. Therefore, it cannot be said that the respondent Nos. 2 and 3 are having illegal custody of the petitioner. 7. In Bharat Petroleum Corporation Ltd. and another vs. N.R. Vairamani and another, (2004) AIR SC 4778, the Hon'ble Supreme Court has held that a decision cannot be relied on without disclosing the factual situation. 8. In Ambica Quarry Works vs. State of Gujarat and others, (1987) 1 SCC 213 , the Hon'ble Supreme Court has held that the ratio of any decision must be understood in the background of the facts of that case. 9. In Bhavnagar University vs. Palitana Sugar Mills Pvt. Ltd., (2003) 2 SCC 111 , the Hon'ble Supreme Court has held that it is well settled that a little difference in fact or additional facts may make a lot of difference in the precedential value of a decision. 10. Therefore, each case depends on its own facts and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect. 11. Coming now to the facts of the present case. The facts of the present matter are quite different to the facts of the judgments rendered by the Hon'ble Supreme Court, as referred by the learned counsel for the petitioner. The petitioner, herein, is in custody in pursuance of the judicial order passed by a Court of competent jurisdiction for the offences punishable under the provisions of the Act, 1985. 12. In A. Lakshmanarao vs. Judicial Magistrate, (1970) 3 SCC 501 , the Hon'ble Supreme Court has held that a writ of Habeas Corpus cannot be issued where the detention or custody is authorised by the order of remand issued by a Court of competent jurisdiction. 13. In Col. Dr. B. Ramachandra Rao vs. State of Orissa and others, (1972) 3 SCC 256 , the Honb'le Supreme Court has held that a writ of Habeas Corpus cannot be granted where a person is committed to jail custody by a competent court by judicial order. 14. 13. In Col. Dr. B. Ramachandra Rao vs. State of Orissa and others, (1972) 3 SCC 256 , the Honb'le Supreme Court has held that a writ of Habeas Corpus cannot be granted where a person is committed to jail custody by a competent court by judicial order. 14. In Manubhai Ratilal Patel vs. State of Gujarat and others, (2013) 1 SCC 314 , the Hon'ble Supreme Court held that it is a well accepted principle that a writ of Habeas Corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order having jurisdiction. 15. In Saurabh Kumar through his father vs. Jailor, Koneila Jail and another, (2014) 13 SCC 436 , the Hon'ble Supreme Court held that the writ of Habeas Corpus in case of custody pursuant to order of remand by a competent court is totally misplaced. The Hon'ble Supreme Court further held that even in respect of an illegal order of remand, which was passed mechanically, in a cavalier fashion, the remedy of a writ of Habeas Corpus was not found to be an appropriate remedy. The remedy lies in filing a bail application. 16. In State of Maharashtra and other vs. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745 , the Hon'ble Supreme Court held that no writ of Habeas Corpus can be issued in such cases as it cannot be termed as a case of illegal detention when the incumbent was in judicial custody by a virtue of the order of the competent court. 17. The petitioner is in custody in pursuance of a judicial order passed by a Court of competent jurisdiction. Therefore, it cannot be said that the respondent Nos. 2 and 3 are having illegal custody of the petitioner. The legality, validity and correctness of the order can be challenged by filing appropriate proceedings. But it cannot be reviewed in a petition of habeas corpus. Even an illegal order of judicial remand cannot be termed as an illegal detention. Therefore, a writ of habeas corpus cannot be issued, where the detention is authorised by the order of a Court of competent jurisdiction. 18. But it cannot be reviewed in a petition of habeas corpus. Even an illegal order of judicial remand cannot be termed as an illegal detention. Therefore, a writ of habeas corpus cannot be issued, where the detention is authorised by the order of a Court of competent jurisdiction. 18. In the light of the above discussions and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases, we are of the considered view that the present petition seeking a writ of habeas corpus is without force. Therefore, the petition is liable to be dismissed at the admission stage. Consequently, the petition is dismissed.