Kamal Nitinkumar Rajput vs State Of Maharashtra
2023 Latest Caselaw 10327 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL WRIT PETITION NO.3287 OF 2023

 Kamal Nitinkumar Rajput                                 .....Petitioner
            Versus
 State of Maharashtra                                    .... Respondent

                              -----
 Mr. Ayaz Khan, Advocate a/w. Ajay Bhise, for the Petitioner.
 Mr. Arfan Sait, APP for the Respondent-State.
                              -----

                                     CORAM : SARANG V. KOTWAL, J.

DATE : 06th OCTOBER, 2023 P.C. :

1. Heard Mr. Ayaz Khan, learned counsel for the

Petitioner and Mr. Arfan Sait, learned APP for the State.

2. Mr. Khan appearing for the Petitioner has

circulated this matter before this Court, but, while making

submissions he himself submitted that the matter lies before

the Division Bench because the nature of relief claimed in

this Petition is in the nature of habeas corpus. He invited my

attention to the order passed by a Division Bench on

3.10.2023. Vide that order, leave to amend was granted to 1 of 5

Deshmane(PS)

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the Petitioner. The amendment was carried out. By the same

order, the Division Bench directed the Registry to place the

Petition before the appropriate Court as per the roster.

3. The Registry on its own has not placed this

matter before this Bench. Mr. Khan has obtained circulation

and, thus, the matter is listed before me today. However,

during the course of submissions, Mr. Khan emphatically

submitted that the prayers in the Petition are in the nature of

habeas corpus and, therefore, the Petition will have to be

moved before the Division Bench. He submitted that he

realized this fact after reading the judgment of the Hon'ble

Supreme Court in the case of V. Senthil Balaji Vs. The State

Represented by Deputy Director and others in Criminal

Appeal Nos.2284-2285/2023.

4. The main prayers in the Petition are as follows :

"b. This Hon'ble Court be pleased to declare and hold that, the remanding the Petitioner to Police Custody in first 15 Day's by the Ld. NDPS Special Court, Mumbai vide its order dated 27 th September 2023 passed in Remand Application No.1213 of 2023 is not in consonance with provisions of Section 36A of NDPS Act and is illegally passed without jurisdiction and further be pleased to direct the 2 of 5

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release of the Petitioner forthwith from the custody of the Respondent;

bb. be pleased to quash and set aside the order dt. 27/09/2023 and subsequent order/s remanding the Petitioner to Police Custody;

c. This Hon'ble Court be pleased to declare and hold that, the procedure adopted by the Respondent for issuance of NBW in the present CR is void ab initio and against the law laid down by the Hon'ble Supreme Court of India in the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. {2007 (12) SCC 1};

cc. Be pleased to quash & set aside the order dt. 21/09/2023 issuing NBW."

5. Mr. Khan relied on paragraph-30 of the decision

in the case of V. Senthil Balaji, which reads thus :

"30. In a case where the mandate of Section 167 of the Code of Criminal Procedure, 1973 and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of Habeas Corpus may be entertained, provided a challenge is specifically made. However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950. There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order. While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given. In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while non-compliance of a provision may entitle a party to invoke the 3 of 5

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extraordinary jurisdiction. In an arrest Under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the Court as mandated Under Sub-section (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance."

6. Mr. Khan submitted that in a case where the

detention becomes illegal for not following the statutory

mandate the writ of habeas corpus will lie. He submitted that

his basic contention is in respect of the power of the Special

Judge under the NDPS Act under Section 36A of the NDPS

Act. According to Mr. Khan, only the Magistrate could

remand the arrested accused under this Act to either police

or judicial custody as per said provision in the first fifteen

days. During the first fifteen days, the Special Court has no

power to remand the arrested accused to any custody. Thus

according to Mr. Khan the detention of the Petitioner

becomes illegal for not following this statutory mandate and,

therefore, writ of habeas corpus will lie considering the prayers

made in this Petition. He submitted that he will take steps to

get the matter listed before the appropriate Division Bench.

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7. Considering these submissions and considering

the ratio laid down in the case of V. Senthil Balaji, Mr. Khan

is at liberty to take steps to get the matter listed before the

appropriate Bench.

(SARANG V. KOTWAL, J.)

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