JUDGMENT
Dr. Couto, J.
1. The petitioner, a non-resident Indian citizen staying at Dubai, challenges by this writ petition the Detention Order dt. 14th February, 1986 issued by the first respondent under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (‘COFEPOSA’ Act for short).
2. The facts that led the issuance of the said Order need not be stated in detail. Suffices to say that landing of contraband gold took place on August 8, 1985 and August 29, 1985 at Daman and 250 gold lagadies were recovered by the Customs Authorities. Investigation was initiated by the said authorities and it appears that as a result thereof, it was found that one Ramji Sukar Tandel, one Bhula Bhagwan Tandel, one Kasamali Gulam Rasul and one Babu Soma and the petitioner were involved in the smuggling of the said gold. Accordingly, the first respondent issued orders of Detention on February 2, 1986 against the aforesaid persons under S. 3(1) of the COFEPOSA Act. Writ Petitions challenging the respective Orders of Detention were filed before this Court on behalf of Ramji Tandel, Bhula Tandel and Kasamali Rasul. The said Writ Petitions were admitted and registered, respectively, under Nos. 7, 6 and 8 all of 1986. By judgment dt. April 28, 1986, the Division Bench of this Court quashed the aforesaid Orders of Detention on the ground that relevant and material documents were not placed before the Detaining Authority and, therefore, the subjective satisfaction of the said authority while issuing the Detention Orders was vitiated.
3. As regards Babu Soma, his case came before the Advisory Board and the Order of Detention issued against him was revoked on the basis of the report of the Advisory Board.
4. The Customs Authorities also initiated adjudication proceedings against twelve people by issuing Show Cause Notices to them under S. 124 of the Customs Act on April 11, 1986. These proceedings were initiated on the basis of the landing of the aforesaid gold at Daman. No Show Cause Notice of any kind and on any ground was issued to the petitioner. The said proceedings were ultimately ended and an adjudication order imposing some penalties against the persons to whom the Show Cause Notices had been issued were imposed. While discussing the evidence on record, admittedly it has been urged that no attempt had been made by the Department to identify the sender of the gold, namely the petitioner herein. The Collector who has adjudicated the said proceedings while dealing with the said submission observed that : “Next argument is that the department has not attempted to identify Hirabhai Somabhai Damania of Dubai. This argument has no force since the customs laws do not extent beyond the shores of this country. Further the full particulars of Hirabhai Somabhai have not been furnished by Ramji Sukar to enable the department to summon him from Dubai. Therefore this portion of the statement is not of a nature that could easily be cor-roborated.”
5. The above facts are not at all denied by the respondents in their return and Mr. A. T. Kamat, Under Secretary (Home Department), Government of Goa, confines himself to raise the question of the maintainability of the petition. He submits that the petition is premature and not maintainable of the petitioner has not surrendered to the Customs Authorities, nor the Order of Detention has been served on him. Further, according to Mr. Kamat, the petition is not maintainable also on the ground that though the petition was filed by the prospective detenu, the verification was not done by him but by his wife. However the facts above mentioned had not been at all denied and therefore, we can safely proceed on the basis that the said facts are admitted as correct.
6. Before proceedings to deal with the merits of this petition, it is necessary and expedient to deal first with the preliminary objections raised on behalf of the respondents. Mr. Bhobe, the learned counsel appearing for the respondents, submitted that the petition is premature and, therefore, not maintainable since that Detention Order and the grounds for the detention had not yet been served on the petitioner and further he has not surrendered to the concerned authorities. He submitted, therefore, that a writ of habeas corpusis is not at all maintainable and the High Court should not exercise its extraordinary powers under Art. 226 of the Constitution in cases like the one at hand. Such powers could be exercised only in the rarest of rare cases and when the Detention Order is ex facie ab initio null and void. In this connection, Mr. Bhobe placed strong reliance on the decision of the Full Bench of the Gujarat High Court in Vedprakash Devkinandan Chiripal v. State of Gujarat, . He further submitted, placing reliance on the decision of the Division Bench of this Court in Criminal Writ Petition No. 1364 of 1986, Yogesh Kantilal Patel v. Home Secretary, Home Department, Government of Maharashtra and another, delivered on December 17th, 1987, that although the High Court can exercise the extraordinary writ jurisdiction under Art. 226 of the Constitution even when the prospective detenu has not surrendered, such powers should be exercised only when the circumstances of the case so required. The learned counsel further contended that the verification of the petition is defective and in contravention of R. 6 of Chapter III of the Appellate Side Rules of this Court. Therefore, according them, the petition on this count also is not maintainable.
7. Mr. Karmali, the learned counsel appearing for the petitioner, however, joined issue and placing reliance on the decisions of the several Division Benches of this Court to which we will make reference in due course, contended that the objections raised by Mr. Bhobe had been already set to rest and it is now well settled by this Court that a petition filed by or on behalf of a prospective detenu is maintainable, even if the said persons has not surrendered to the concerned authorities and the Detention Order and the grounds were not served on him. Equally, according to the learned counsel, the second objection raised on behalf of the respondents had been set to rest by the Division Bench of this Court in several judgments of this Court, inter alia, in Jayantilal Bhagwandas Shah v. State of Maharashtra, 1981 Cri LJ 767 and in Crl. Writ Petn. No. 1159 of 1986 Sayed Iqbal v. State of Maharashtra decided on August 21st, 1987.
8. We find no force at all in the above preliminary objections raised on behalf of the respondents. As regards the first objection, we may point out that the COFEPOSA Act is a preventive piece of legislation which affects the fundamental right of liberty of a citizen. When fundamental rights, specially the fundamental right to liberty, are involved, it is manifest that there should be no bounds for the exercise by the High Court of its extraordinary jurisdiction under Art. 226 of the Constitution in order to protect and safeguard those fundamental rights guaranteed by the Constitution. Of course, a writ of habeas corpus cannot be entertained unless and until a person surrenders to the concerned authorities and is already under detention. But the power of the Court to examine and to adjudicate in the question of the legality of an Order which affects the liberty of a citizen cannot be limited by the fact that the prospective detenu has not surrendered to the concerned authorities or that the Detention Order was not served on him. We are supported in this view by several decisions of the Division Benches of this Court. It is not necessary for us to make a detailed reference to all these authorities, but we may advert in particular to Jayantilal Bhagwandas Shah’s case (1981 Cri LJ 767) (Bom) (above), for in the said case, the law on the subject was laid down in a very expressive manner. Bharucha, J., speaking for the Court in that case has observed as under :-
“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. Art. 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 tree 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. 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 as 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”.
The view so expressly recorded by the Division Bench in Jayantilal’s case was followed by other Division Benches of this Court, inter alia, in Crl. Appln. No. 69 of 1980, Lachmandas Naraindas Jiwanani v. Union of India, Crl Writ Petn. No. 622 of 1982, Sukhramdas Prabhudas Thakur v. State of Maharashtra, Crl Writ Petn No. 1380 of 1986, Mohideen Tayab Sony v. K. K. Dwivedi Crl. Writ Petn No. 1159 of 1986 (reported in (1988) 1 Bom CR 66), Sayed Iqbal v. State of Maharashtra, Crl Writ Petn. No. 1364 of 1986 (reported in 1988 Cri LR (Mah) 230), Yogesh Kantilal Patel v. Home Secy. Similarly, in Spl. Civil Appln. No. 2752 of 1975 (reported in ILR (1987) Bom 1), Manoharlal Narang v. Union of India, judgment delivered in July 8th 1980, the Division Bench of this Court negatived the contention that a Writ Petition was not maintainable and was premature when the Detention Order has not yet been served on the petitioner and he has been arrested under the same. The Division Bench observed that under a Detention Order, a person is sought to be deprived of his liberty and as laid down in Art. 21 of the Constitution, such order can be made only under a law enacted for the purpose and after complying with the provisions of such law. It further observed that it may happen that an order is passed without there being a statute to support it or it may be passed without complying with the provisions of the statute, if any. The order may also be passed against a wrong person and for a wrong purpose and therefore, 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. The Division Bench further said that there is no support for such proposition in our legal system and that on the other hand the fundamental rights guaranteed by the Constitution, particularly by Articles 14, 19 and 21, confer on any person to be 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 surrenders his liberty. With respect, we are in full agreement with the above observation made in Manoharlal Narang’s case (above).
9. It is true that in Vedprakash’s case (above), the Full Bench of the Gujarat High Court appears to have struck a slightly different note, since it was held that in cases where the prospective detenu has not surrendered nor has been served with the Detention Order he cannot ordinarily invoke the jurisdiction of the High Court under Art. 226 of the Constitution, for only in exceptional cases and in rarest of rare cases, wherein the order of Detention appears to be ab initio void, he can invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution. However, on going through the judgment delivered by the Full Bench of the Gujarat High Court in the said case, one finds that those observations were made on the facts of that particular case. In fact, Vedprakash’s case (supra) was one where the prospective detenu was indulging in black-marketing and was consistently avoiding the services of the Order of Detention. The Full Bench while considering the law in the facts of that case, has made a reference to Jayantilal’s case, (1981 Cri LJ 767) (Bom) and other authorities, inter alia, of the Supreme Court. The Full Bench observed in para 41 of the report that the observations made in Writ Petition No. 622 of 1982 by the Division Bench of this Court had to be read subject to certain limitations which emerge from the Constitutional scheme and the necessity to balance between the conflicting interest of individual liberty on the one hand and interests of nation and the society on the other. Therefore, the Full Bench quoted with approval the observations made by a Division Bench of the Gujarat High Court in Special Criminal Application No. 841/85 to the effect that the High Court has no jurisdiction to entertain a Writ Petition under Art. 226 of the Constitution, when the Detention Order is not executed and the person concerned is not put under detention. However, the Division Bench observed that such petitions can be entertained in the rarest of rare cases, meaning by that the Detention Order is ex facie null and void. The Full Bench made also a reference to the decision of the Supreme Court in ‘Maganbhai v. Union of India’, . In that case, Hidayatullah, C.J., speaking for the Court, observed that the Courts may issue a writ of mandamus at the instance of a party whose fundamental rights are directly and substantially invaded. The Full Bench inferred from such observation that it is permissible to interpret Article 21 of the Constitution liberally as conferring right upon any individual to invoke the jurisdiction of the Court to safeguard his liberty even in cases where there is imminent danger to his liberty being invaded in future. Then, the Full Bench concluded that ordinarily a detenu cannot seek a writ of mandamus in cases where he has not surrendered nor has been served with an Order of Detention and he cannot ordinarily invoke the jurisdiction of the High Court under Article 226 of the Constitution, but in exceptional cases and in the rarest of rare cases wherein the Order of Detention appears to be ab initio void, the detenu can do so. It can be seen from the above observations of the Full Bench that there is no substantial divergence with the view of the Division Benches of this Court. Besides, with respect, we feel that striking the balance between the conflicting interest of the individual on the one hand and the interests of the nation and the society on the other has to be done at the time of the adjudication of the petition and the Court should not close its doors to a citizen who approaches it to safeguard and protect his fundamental right to liberty. We, therefore, find no force in the first preliminary objection raised by the respondents.
10. As regards the second objection, viz., the defective verification, it is no doubt true that as per Rule 6 of Chapter III of the Appellate Side Rules, the verification has to be done by the petitioner himself and that in the present case though the petition was filed by the prospective detenu himself, the verification was done by his wife. Such verification is therefore irregular but we are of the view that such technical defect should not and cannot come on the way of our looking into the merits of the petition, as the liberty of the petitioner is involved. Pertinent in this respect are the observation made in ‘Mhoiuddin Tayab Sony v. The State of Maharashtra’, 1980 Cri LJ 1040. Dharmadhikari J., speaking for the Court and negativing the preliminary objections to the maintainability of the Writ Petition on the ground of delay and laches observed in para 12 of the report as under :-
“The powers exercised under the COFEPOSA Act are extraordinary in nature. It involves liberty of a subject and it is bounden duty of the Court to satisfy itself that all safeguard provided by the law have been carefully observed and that the subjects is not deprived of his right to liberty otherwise than in accordance with law. When a question of liberty of a person is involved in a petition like this, then in our opinion reliefs cannot be denied to the petitioner on such a technical ground.”
Though these observations were made as regards laches, in our view, they apply on all fours to the second objection raised on behalf of the respondents as regards the defective verification. That is mere irregularity which can be overlooked. Relevant also is to be noted that in Jayantilal’s case, (1981 Cri LJ 767) (Bom) (above), and with respect rightly, it has been observed that if the High Court is exercising extraordinary writ jurisdiction on the basis even of a letter or a postcard, the exercise of the said powers should not be barred on a technical ground of a defective verification. We are also supported by the decision of the Division Bench of this Court in Sayed Iqbal’s case, (1988) 1 Bom CR 66 (above) : We, therefore dismiss as without force the second objection to the maintainability of this petition, and now turn to the merits of the petition.
11. Though several grounds of challenge had been advanced at hearing of this petition against the Detention Order, Mr. Karmali with his habitual fairness, restricted his attack mainly to two grounds. He first contended that it is an admitted position that the Detention Order issued against the petitioner was based exclusively on the same grounds on which Detention Orders were issued against Ramji Sukar Tandel, Bhula Bhagwan Tandel, Kasamali Gulam Rasul and Babu Soma. The said Detention Orders had been quashed by this Division Bench by judgment dt. April 28th, 1986, on the ground that two vital and essential documents, which could have influenced the Detaining Authority in the formation of this subjective satisfaction had not been placed before it and, therefore, the subjective satisfaction arrived at to issue the Detention Orders had been vitiated. The learned counsel, therefore, contended that since the material which is the basis for issuing the Detention Order against the petitioner is the same and since it is not challenged that the petitioner was implicated on the basis of a statement of Ramji Sukar Tandel recorded by the Customs Authorities under section 108 of the Customs Act and this Court has found that the allegation made by the said Tandel that the said statement has been obtained under duress, the judgment of the Division Bench is attracted and the Detention Order issued against the petitioner had necessarily to be quashed on the same grounds. He also submitted that it is an admitted fact that the Detention Order issued against Babu Soma was revoked in view of the report of the Advisory Board, that there was no sufficient cause for his detention. The learned counsel added that the inference that there is no sufficient material to support the Order of Detention is corroborated by the circumstance that adjudication proceedings under the provisions of the Customs Act had not been initiated against the petitioner although Show Cause Notices had been issued under S. 124 of the Customs Act against 12 persons, inter alia against Ramji Sukar Tandel, Bhula Bhagwan Tandel, Kasamali Gulam Rasul, as well as by the observations quoted above made by the learned Collector while passing the adjudication Order.
12. We already mentioned that there was no denial on the part of the respondents that the material submitted to the Detaining Authority and which is the basis for the issuance of the Detention Order against the petitioner is the same which was the basis for the Detention Order against Ramji Tandel, Bhula Soma. Annexure ‘B’ to the petition is the common judgment delivered by this Division Bench in Writ Petitions 6, 7 and 8 of 1986, whereby the Detention Orders issued against Ramji Tandel, Bhula Tandel, Kasamali Rasul were quashed. A persual of the said judgment makes it clear that an order made by the learned Judicial Magistrate First Class, Daman, was truncatedly submitted to the Detaining Authority and a relevant portion of the Orders which was showing that there had been some physical ill-treatment of Ramji Tandel had been omitted. Further, the medical certificates which were showing that the said Tandel had sustained some injuries which were caused by some hard and blunt object were also not placed before the Detaining Authority. The Division Bench held that these two documents were to some extent supporting the allegation made by Ramji Tandel that his statement recorded by the Customs Authorities has been extorted under duress. Therefore, the Division Bench held that those two documents were vital for the formation of the subjective satisfaction of the Detaining Authority and consequently quashed the Detention Order. What the Division Bench observed in the said Writ Petitions fully and squarely applies to the facts and circumstance of this case. In addition, we may point out that it is not disputed that the petitioner has been implicated in the smuggling of gold above referred to by Ramji Tandel in the statement made by him to the Customs Authorities under section 108 of the Customs Act. If there are doubts as to whether or not the said statement was obtained under duress and if the Division Bench in the aforesaid Writ Petitions held that the allegation of the said Ramji Tandel of having been ill-treated gets to some extent support in the order of the Magistrate and the medical certificates, it is obvious that the said statement also is a vital piece of evidence which had to be looked into by the Detaining Authority in the light of the order of the Magistrate and the medical certificates.
13. In view of the above discussion, we are of the view that this petition succeeds and the Detention Order dt. February 14th, 1986, issued against the petitioner under S. 3(1) of the COFEPOSA Act is liable to be quashed and set aside. The result, therefore, is that the rule is made absolute and the aforesaid Order of Detention is hereby quashed and set aside and no action at all pursuant to the said Order be taken by the concerned authorities.
14. Order accordingly.