Custody can't be perceived as illegal detention, rules Punjab and Haryana High Court
Saurabh Malik
Chandigarh, February 23
The Punjab and Haryana HC has made it clear that physical or open custody of a person taken under the authority of law could not be perceived as illegal detention. The custody or confinement of the person so held would have the sanctity and authority of law unless the order authorising the same was set aside by a process known to law.
The assertion came as Justice Vinod S Bhardwaj refused to entertain a habeas corpus plea seeking the release of a man initially taken in custody on November 1, 2018, by the BSF on the allegations of passing on information to ISI in Pakistan.
Directions were also sought for the release of the person’s wife in the petition filed by a person claiming to be the next best friend of the two. He was seeking their release on the ground that they had been taken into illegal custody by BSF Commanding Officer for facing trial before the BSF special court in Manipur.
Referring to a recent SC judgment in the case of “Home Secretary (Prison) and others versus H Nilofer Nisha”, Justice Bhardwaj asserted it would be necessary to refer to the development in law so far as the jurisdiction in the matter of writ of habeas corpus was concerned.
“A perusal of the judgment clearly establishes that when a person is taken in custody (actual physical custody or open custody) under the authority of law, such custody or confinement cannot be perceived as illegal detention,” Justice Bhardwaj asserted.
The Bench was told that a decision was taken to hand over the man’s custody to the Punjab Police after exercising the discretion in terms of the BSF Act, resulting in the registration of an FIR on November 3, 2018, under the Official Secrets Act and the National Security Act in Ferozepur district.
An application was moved by BSF Commanding Officer seeking his release to present him before the Security Forces Court for conducting his trial was allowed. It was held that the court could claim his custody for conducting his trial.
Justice Bhardwaj observed the man’s custody had been released by court order in favour of BSF Commanding Officer. It was not in dispute that interim protection was not extended and the order’s operation had not been stayed. As a result, his release for being put to trial could not be held to be an act without authority of law. Dismissing the plea, Justice Bhardwaj added it appeared that his wife voluntarily opted to travel with him to Manipur and the same could not be perceived as her detention.
Dismisses plea
The court refuses to entertain a habeas corpus plea seeking the release of a man initially taken in custody on November 1, 2018, by the BSF on the allegations of passing on information to ISI.
