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Judgment
K.M. Natarajan, J.—This writ petition is filed for the issuance of a writ of Habeas Corpus directing the respondents to forthwith release the
under-trial prisoners whose names are given in the annexure to this petition in Crime No. 29/91 on the file of the first respondent who are at
present detained in the Central Prison, Trichy.
It is seen from the affidavit filed in support of the petition by the Advocate Mr. S. Satish Sundar that the detenus whose names are given in the
annexure were originally arrested by the first respondent for the alleged offence under S. 12C of the Passport Act 1967, but they were remanded
to custody on 4-2-1991. These ten persons whose names are given in the annexure are undergoing imprisonment as remand prisoners in the
Central Prison, Trichy and the second respondent has been remanding them periodically and they were lastly produced before the Magistrate on
7-11-1991 and again they were produced on 21-11-1991.
It was represented by the learned counsel for the accused that they should be discharged on their own bonds as period of conviction prescribed
in that section has expired but the learned Magistrate continues to remand them. It is further stated that as per S. 2C of the Passport Act under
which these persons have been charged provides only with an imprisonment for a maximum period of six months or with fine, which may extend to
Rs. 2000/- or both. The period of six months expired on 4-8-1991 itself. The learned Magistrate has no jurisdiction and the remand thereafter is
totally illegal and violative of Art. 21 of the Constitution of India.
In this connection placing reliance on a decision reported in Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, it was
submitted by the learned counsel that detention as a remand prisoner beyond the prescribed period of imprisonment is illegal and as such they are
to be released forthwith.
In the counter-affidavit filed by the first respondent. While admitting the averments that the detenus were arrested on 4-2-1991 at 2.30 p.m. in
connection with the case under S. 12C of the Passport Entry into India Act 1920 in Crime No. 29/91, it is submitted that all the detenus belonged
to Pakistan and have entered into India without any valid Passport or without any valid documents. It is also further submitted that the detenu were
enquired by the Assistant Collector of Customs and Central Excise, Nagapattinam and that complaint in C.C. No. 386/91 before the Judicial
Magistrate No. 1, Nagapattinam was filed under S. 135(1)(a)(i) of the Customs Act and they were found guilty and convicted on 28-11-1991 to
undergo imprisonment for a period of one year. The learned Judge also set off the period already undergone by the detenus during their remand
period. It is also further stated that the Government in G.O. Ms. No. 1467 dated 26-9-1991 has passed an order that all the detenus should be
deported from India after the expiry of the conviction period. Hence the detenus have to be deported to Pakistan after their release. As regards the
allegation of release is concerned it is submitted that proceedings have already been initiated to drop the action under the Passport Act, and
already a request had been made to the Collector to stop the proceedings and orders are awaited. On receipt of the order from the Collector to
drop the further proceedings they undertake to drop all further proceedings against the alleged detenus under the Passport Act are concerned.
Hence they pray for dismissal of the writ petition.
On hearing the learned Additional Public Prosecutor, we find that as regards the proceedings, instituted against the alleged detenus u/s 12-C of
the Passport Act, these detenus were kept on remand for more than a period of 6 months and the maximum period of punishment for the offence is
only six months. Even accordingly to the counter, the respondents have stated that they decided to drop the proceedings and they were awaiting
the orders of the Collector. In Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, cited supra the Supreme Court held as
follows (para 5 of AIR) :-
Where under-trial prisoners have been in jail for periods longer than the maximum term for which they would have been sentenced, if convicted,
their detention in jail is totally unjustified and in violation of the fundamental right to personal liberty under Art. 21 of the Constitution. Their
detention in jail being illegal they should be released forthwith.
Applying the ratio in that decision to the facts of this case, we are of the view that so far as the relief prayed for in this petition with regard to their
detention under Crime No. 29/91 for the offence u/s 12-C of the Act is concerned, the detenus are entitled to be released and they cannot be
detained any further for the said offence in respect of the said crime number.
In the result the writ petition is allowed and the respondents are directed to release the detenus who are numbering ten in respect of Crime No.
29/91 on the file of the first respondent pending before the Judicial Magistrate, Aranthangi is concerned. However, in respect of the conviction of
the detenus under the Customs Act, they have to undergo the unexpired portion of imprisonment and they were entitled to be released only after
they have undergone the sentence of imprisonment imposed on them. With the above observations, the writ petition is allowed.
Petition allowed.