Bharucha, J.:— In these three writ petitions the challenges are directed towards orders of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (now referred to as “the Act.”). The intended detenus under these orders are not in detention.
2. The learned Advocate-General, appearing on behalf of the State of Maharashtra, raised a preliminary objection to the maintainability of the petitions. It was that the habeas corpus jurisdiction under Article 226 of the Constitution is exercisable only to examine the legality of a detention when there is a detention and in no other case. The Advocate General submitted that an order of detention cannot be successfully challenged if it has not been executed. In his submission, though the prayers in the petitions seek writs other than the writ of habeas corpus, the petitions are in substance habeas corpus petitions. The Advocate-General cited in this regard the judgment of the Federal Court in Emperor v. Keshav Talpade . AIR 1944 FC 22.. This was an application for leave to appeal to the Privy Council against an order made in a detention case by the Federal Court. The Federal Court said that since the original petition, the detenu had been released by Government, he had no longer any interest in the habeas corpus proceedings and dismissed the application. The Advocate-General then cited the decision of the Punjab High Court in Kidar Nath v. State of Punjab . AIR 1960 Punj 122.. He placed reliance upon the observation in paragraph 17 thereof, namely, that the writ of habeas corpus was a device for, in the main, obtaining deliverance from unlawful detention and its object was the liberation of those who may be kept wrongfully restrained but it could not be employed as a means of securing judicial determination of any other question or for punishing the respondent or for affording reparation or redress to the person wronged. In Barnardo v. Mary Ford, Gossage's case . 1892 AC 326. referred to by the Advocate-General, Lord Halsbury, L.C, said that he could not agree with the view that a writ of habeas corpus might issue when illegal detention had ceased before the application for the writ had been made. In The King v. Secretary of State for Home Affairs . 1923 KB 361., which also the Advocate-General cited, it was said that if the Court was satisfied that the body whose production was asked for was not in the custody, power or control of the person to whom it was sought to address the writ, the writ of habeas corpus was not the proper remedy. Again, it was said that in all cases of alleged unjustifiable detention such as arise on applications for a writ of habeas corpus, the custody or control was ex hypothesi unlawful: the question was whether it existed in fact.
3. The Advocate-General then made reference to two Division Bench judgments of this Court in which, he submitted, an objection to maintainability was taken, but not in the precise terms in which he took it before us. The first was the judgment in Mohiuddin v. State of Maharashtra . 1980 Mah. LJ 742.. In that matter the learned Government Pleader, Mr. M.R Kotwal, contended on behalf of the State Government that until the order of detention was communicated to the intended detenu it did not become effective and did not confer any cause of action upon the intended detenu to challenge it. This preliminary objection was, however, not pressed by Mr. Kotwal in view of the fact that, subsequent to the issuance of the detention order, a notification in the Official Gazette had been published under the provisions of section 7 of the Act and he did not dispute that publication amounted to a communication of the detention order. The Advocate-General submitted that, inasmuch as that judgment proceeded upon a concession, it should not be taken as having any binding effect upon this point.
4. The second Division Bench judgment was the judgment (unreported) in Manoharlal Narang v. Union of India . Special Civil Revision Application No. 2752 of 1975 with Criminal Revision Application No. 23 of 1980. delivered on 10th July 1980.. In that matter Mr. Kotwal, again appearing on behalf of the State Government, contended that the petition was not maintainable being premature, inasmuch as the detention order had not been served on the petitioner and he had not been arrested thereunder. The Court observed in regard to this contention as follows:
“To insist in such cases that the person against whom the order is passed must first submit to the same and lose his valuable liberty before approaching the Court is to insist upon an unreasonable, unwarranted and illegal condition. We find no support for such proposition in our legal system. On the other hand, the fundamental rights guaranteed by the Constitution, particularly by Articles 14, 19 and 21, confer on any person likely to be affected by such order an implicit right to approach the Court and knock at its door at any time, and the Court will not and cannot refuse relief to such person by insisting that he first surrender his liberty. We, therefore, find no substance in this submission.”
5. The Advocate-General contended that these observations were appropriate in regard to all writs but the writ of habeas corpus. He submitted that we should re-consider the conclusion reached in Narang's case upon this point.
6. Shri A.H Desai and Shri Jethmalani, learned counsel for the petitioners, submitted that the writ of habeas corpus was not sought in the petitions and that, even in substance, the petitions were not habeas corpus petitions.
7. Counsel for the petitioners contended further that no technical rules applied in regard to the writ jurisdiction of the Court. Reference was made by Mr. Desai to the judgment of the Supreme Court in Dwarka Nath v. I.T Officer . AIR 1966 SC 81., and the following observations therein:
“This article (Article 226) is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the source of those writs also is widened by the use of the expression “nature” for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. This apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the powers of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be evolved to direct the article through defined channels.”
8. Mr. Desai also adverted to the judgment of the Supreme Court in Smt. Icchu Devi Choraria v. Union of India . 1980 4 SCC 531. The Court there said that in an application for a writ of habeas corpus the practice evolved was not to follow the strict rules of pleading nor place undue emphasis on whom the burden of proof lay. A post card written by a detenu from jail had been sufficient to activise the Court into examining the legality of the detention. Once a rule was issued it was the bounden duty of the Court to satisfy itself that all the safeguards imposed by the law had been scrupulously observed and the citizen was not deprived of his personal liberty otherwise than in accordance with law.
9. Counsel for the petitioners submitted that an order of detention could also be challenged by a petition for a writ in the nature of mandamus and/or certiorari.
10. Counsel for the petitioners relied strongly upon the two judgments of Division Benches of this Court mentioned above. They submitted that an order of detention could successfully be challenged before actual detention in pursuance thereof had taken place.
11. In our view, having regard to the decisions cited and arguments advanced before us, the writ of habeas corpus may be issued only when there is actual illegal detention. But this is not to say that an illegal order of detention cannot be successfully challenged.
12. Article 21 of the Constitution enshrines the most inherently fundamental of human rights, the right to life and personal liberty. It declares that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Under the provisions of Article 21, as we read it, every person has the right to safeguard his freedom and to regain it if he has illegally been made to lose it. Article 226 of the Constitution clothes the High Courts with authority to issue to any person or authority throughout the territories in relation to which they exercise jurisdiction directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the enforcement of the rights conferred, inter alia, by Article 21. Article 226 is couched in language wide enough to protect a person against an illegal invasion of his right to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained. We cannot countenance and do not accept the Advocate General's submission that the High Courts are impotent to give relief against the prospect of illegal detention and must first require the intended detenu to surrender to the illegal detention. We are satisfied that the High Courts may under the provisions of Article 226 issue a direction, order and writ in the nature of mandamus and/or certiorari quashing an illegal order of detention and may by direction, order and writ in the nature of prohibition enjoin the person threatening the illegal detention from executing the threat.
13. Both the Division Bench judgments referred to above support the view we take and the observations therein are relevant even though the objections taken in those matters were not in the precise form in which the objection was taken before us. In Mohiuddin Soni's case the Court said that while there was an order of detention in the field which could be executed against a petitioner and his liberty could be curtailed, a petition to quash it was maintainable. In Narang's case what was said has already been reproduced.
14. We have considered the contents of the petitions before us. We find that in none of the petitions has the writ of habeas corpus been prayed for. We also find that the petitions cannot, as the Advocate General contended, be said to be habeas corpus petitions in substance. But we would say that even if they were we could and would intervene to strike down an illegal order of detention. If we can in matters of personal liberty intervene on the strength of a mere post-card, we surely can intervene on the strength of petitions, though they may seek the wrong relief or be phrased in the wrong form. The position of a person who is actually under illegal detention and of a person who is in imminent jeopardy of illegal detention are not far dissimilar.
15. In the result, we hold that an illegal order of detention may be quashed even where the intended detenu has not been detained in pursuance thereof.
16. We record that it was not contended before us that illegal detention orders could be struck down, if at all, not by the High Court in the jurisdiction which we presently exercise but in another jurisdiction.
17. Having thus disposed of the preliminary objection as to maintainability in favour of the petitioners, we turn to consider the facts of the three petitions before us.
18. In Criminal Application No. 592 of 1980 the petitioner is the intended detenu. He was interrogated in 1967 in respect of alleged smuggling activities. He was discharged in the criminal case and in the departmental proceedings launched in respect thereof. On 19th September 1974 he left India for Dubai. Later in that month he was involved in a car accident in Dubai and was prosecuted and sued for damages, and his passport was taken charge of by the authorities in Dubai. A proclamation having been issued under section 7 of the Act, he learnt of the detention order issued against him under the Act. The detention order is dated 19th February 1975 according to the affidavit filed in reply on behalf of the State Government. To the affidavit the grounds on which the detention order was made on 19th February 1975 are disclosed. The grounds are dated 19th March 1975. We asked Mr. Kotwal to ascertain that these dates were correct and he told us that they are. It will be seen thus that no grounds were formulated on 19th February 1975 when the order of detention was passed.
19. In Criminal Application No. 545 of 1980 the petitioner is the intended detenu. Against him an order of detention was passed under the provisions of the Act on 13th November 1975. That no grounds were in existence on 13th November 1975 is clear from the affidavits filed on behalf of the State Government. On 14th November 1975 the order of detention was served on the petitioner and he was detained in jail until 23rd March 1977 when he was let out of jail. In the meantime, on 30th September 1976, 7th October 1976 and 19th November 1976 notices were issued to the petitioner's wife, brother and father respectively under the provisions of the Smugglers' Foreign Exchange, Manipulaters (Forfeiture of Property) Act, 1976. A statement in the affidavit of Rajadhyaksha for the State Government needs to be noticed: it says that the petitioner has already been released from detention and he will not be detained again in pursuance of the detention order dated 13th November 1975.
20. In regard to this petition (Criminal Application No. 545 of 1980) Mr. Kotwal on behalf of the State Government placed reliance upon the judgment of the Supreme Court in Pradip Kumar v. State of W.B . 1975 3 SCC 335, wherein the Court equated an order of release to an order of revocation of detention. When it was pointed out to Mr. Kotwal that there was no order of revocation of detention in this matter, he stated expressly that the fact of the release of the petitioner amounted to a revocation of the order of detention dated 13th November 1975. Mr. Govilkar, on behalf of the Union of India, urged that because of this statement the petition need be gone into. In view of the fact that notices under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, have been served on the wife, brother and father of the petitioner, which notices have a considerable adverse effect upon their property, we have been urged, and have considered it proper to go into the petition.
21. In Criminal Application No. 57 of 1980 the petition is filed by the wife of the intended detenu. The intended detenu left India for Hongkong in 1971 and has since been carrying on business there. He last left India for Hongkong on 17th March 1975. The order of his detention under the Act was passed on 17th October 1975. On 12th November 1975 an order was passed under section 7 of the Act declaring him an absconder. From the affidavit of P.G Gavai on behalf of the State Government it is clear that the grounds of detention were not formulated when the order of detention was passed. He states that the grounds would be formulated from the material which was considered and accepted by him and would be served on the intended detenu within the period prescribed in the said Act after his detention.
22. Counsel for the petitioners contended that since in these three petitions the grounds of detention had not been formulated on the dates on which the orders of detention were passed, the orders of detention were ab initio void and had to be set aside. They relied upon the judgment in Narang's case. In that matter, Mr. Kotwal appearing on behalf of the State Government, contended that it was not necessary that the grounds of detention should have been formulated at the point of time when the order of detention was passed and that it was enough if they were formulated and served upon the detenu within a period of 5 to 15 days after his detention. The Court, after considering the judgments cited and the arguments urged, came to the conclusion that the basic facts or grounds had to exist in formulated form at the time when the detention order was made, that the absence of grounds at the time of making the detention order rendered the order void ab-initio. It held that the making by the detaining authority of a written record of the grounds at the time of making the detention order was the most elementary safeguard to ensure that it had been passed in compliance with the provisions of the law and to prevent the arbitrary, casual and capricious use of the abnormal and otherwise absolute power conferred on the detaining authority.
23. Mr. Kotwal canvassed before us the same contention which he had raised in Narang's case. He referred us in this connection to the judgment of the Supreme Court in State Of Bombay v. Atma Ram Sridhar Vaidya . AIR 1951 SC 157.. We have anxiously perused the judgment in Narang's case. We so thoroughly agree with the observations made in it that we cannot accede to Mr. Kotwal's suggestion that his contention should be re-considered. Without going into any detail we may indicate, first, that the view taken in Narang's case appears now to be supported by the judgment of the Supreme Court in Shalini Soni v. Union of India . 1980 Cri. LJ 1487. and, secondly, by section 12A (now repealed) of the said Act. In sub-section (5) of section 12A it was said that it was not necessary to disclose to the person detained the grounds on which the order had been made during the period for which the declaration provided for in sub-section (2) of section 12a remained in force; this suggests that the grounds of detention must be formulated concurrently with the detention order. We may also point out that an appeal was filed in the Supreme Court by the State Government against the judgment in Narang's case and it was withdrawn. We find ourselves bound by and, indeed, in agreement with the conclusion reached in Narang's case that the grounds of detention must be formulated concurrently with the detention order and that the failure to do so renders the detention Order void ab-initio.
24. In the three petitions before us it is an admitted position that the grounds of detention were not formulated when the detention orders were passed. The detention orders in the three petitions must, therefore, be held to be void ab initio and struck down.
25. In Criminal Application No. 592 of 1980 we declare that the order of detention bearing No. SB 111.PSA/0175/15 dated 19th February 1975 is void ab-initio. We set it aside and order and direct the respondents to desist from taking any steps in enforcement thereof. Rule absolute. In Criminal Application No. 545 of 1980 we declare that the Order of detention bearing No. DESK/XIX/SB/PSA.0175/336 dated 13th November 1975 is void ab initio. We set it aside and order and direct the respondents to desist from taking any steps in enforcement thereof. Rule absolute.
26. In Criminal Application No. 57 of 1980 we declare that the order No. DESK/XIX/SB/PSA.0175/313 dated 17th October 1975 is void ab initio. We set it aside and order and direct the respondents to desist from taking any steps in enforcement thereof. Rule absolute.