Judgment:
Charanjit Talwar, J.
(1) The petitioner herein, Dalam Chand TejmalBaid, was arrested on 21/07/1981 under the provisions of Customs Act and remanded to judicial custody by the Additional Chief MetropolitanMagistrate, Delhi. The petitioner filed a petition for issuance of a writ ofhabeas corpus challenging his detention by virtue of the said remand order.That petition (Criminal Writ Petition No. 83/81) was allowed by a division bench of this Court on 18/12/1981. The case is reported in 1982 Criminal Law Journal at page 747. The petitioner was directed to be released forthwith.
(2) While in judicial custody the impugned order dated 27/08/1981 was passed with a view to preventing the petitioner from smuggling goods and from acting in any manner prejudicial to the conservation and augmentation of foreign exchange. This order was served on the detenue on that very day. It appears that the fact that the detention order had been passed against the petitioner was not brought to the notice of division bench. On that petition being allowed, the petitioner was released from the Central Jail, Tihar on 19/12/1981, in spite of the fact that the case of the petitioner for preventive detention had been approved by the Advisory Board.
(3) The petitioner is a resident of Bombay. He was arrested on 30thMarch, 1983 and was brought to Delhi and lodged in the said Tihar Jail.According to the respondents the petitioner has been lodged in jail as 'he had aot undergone his full term of detention inasmuch as he was detained on 28.8 81 and erroneously released by jail authorities on 19.12.81 and is required to undergo the remaining period of detention for a period of one year less than the period he had already undergone detention.' (Italics added)
(4) The above averment of Shri S.K. Chaudhary, Under Secretary,Ministry of Finance, in a nut shell gives the factual as well as the legal position as understood by the Government of India. A bare reading of the plea shows that the action taken now by the Govt. of India is entirelypunitive. The petitioner was released on 19/12/1981 admittedly by the jail authorities. It cannot be said that he had committed any fraud or had hoodwinked any authority. The detention order was in operation on the date of his release from jail. thereforee, he ought not to have beenreleased. The judgment of this court dealt only with the challenge to the order of judicial remand. It is however admitted by the respondents that the petitioner had been erroneously released by the jail authorities. Theplea raised in the counter affidavit as well as before us that under the law the petitioner is required to undergo the remaining period of detention by virtue of the order passed on 27/08/1981 is entirely misconceived apart from being untenable.
(5) The continued detention of the petitioner herein under the impugned order dated 27/08/1981 is illegal. We allow the petition and direct that the petitioner be released forthwith.