Ram Chandra Mitruka vs The State of Bihar and another

Satya brata Sanyal, J.—This is an application for issuance of a writ of habeas corpus commanding the release of the petitioner detained u/s 31(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. At the lime of admission a question of maintainability of the writ petition was raised since the petitioner does not appear to be an India citizen.

Mr. Braj Kishore Prasad appearing for the petitioner submitted that Article 21 of the Constitution refers to person and not citizen Unlikc Article 19. The detention of a person, therefore, must be in consonance with Article 21. A person in Article 21 will include a citizen as Well as non-citizen. I find force in the argument of learned counsel and Mr. Kamlapati Singh also agrees that in view of the decision in Anwar v. State of J. and K. (AIR 1971 Supreme Court 337) it cannot be said that a writ petition is not maintainable on behalf of a foreign person.

Mr. Prasad thereafter raised a few points in support of the release of the petitioner but the point which impressed me most is founded upon the recent decision of the Supreme Court decided on 11th February, (sic), in Criminal Appeal No. 129 of 1986 and Criminal Writ Petition No. 4/5 of 1985 (Shri Sita Ram Somani v. The State of Rajasthan and others) reported in 1986 (sic) (Cr.) 53. The point is that the recovery and the statement admitting the guilt have all been retracted but this was not brought to the notice of the detaining authority even though this was a relevent material before taking a decision whether it was necessary to detain the appellant under the COPEPOSA Act. The State in its counter-affidavit (paragraph 5) has admitted that these were not brought to the notice of the detaining authority as it was not necessary to do so. It is, therefore, an admitted position that the circumstanee under which the confession was made, namely, forcibly by causing severe injuries on his person, as would, be found from the order sheet of the criminal case, and the retraction of the statement made before the police were naver before the detaining authority when the order for detention was passed on 24.11.84. It may be stated here that the petitioner was arrested on 1.6.84 with contraband gold and was released on bail on 22.6.84. In the case of Shri Sita Ram Somani (supra) it was held in a similar circumstance, where also retraction of the confessional statement was not brought to the notice of the detaining authority, that the retraction of a confession is the relevant material and the application of the mind of the detaining authority to the relevant material is a relevant consideration. "If it did not, the appellant would be entitled to be released".

I find that the present case is fully covered by the decision in Shri Sita Ram Somani''s case (supra). I, therefore, quash the order of detention of the petitioner (Annexure 1) and direct the respondents to forthwith release the petitioner if he is not required in any other case. The application is accordingly allowed. Let a copy of this order be forwarded to the Superintendent, special Jail, Bhagalpur, to abide by the directions contained in the order.