The following is for General Information and future case reference.
Appeared in "Times of India", Mumbai edition, dated 14,July'2008, page no. 01.
Keep Smiling ... Hemant Agarwal
RIGHTS VIOLATION IF NOT PRODUCED BEFORE MAGISTRATE WITHIN 24 HOURS OF ARREST
Published on July 19, 2008, Page 02, Times of India, Mumbai Edition
Court sets smuggler free citing violation of rights
Mumbai: The Bombay high court has struck down the detention of a smuggler under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (Cofeposa) after holding that his fundamental right to be produced before a magistrate within 24 hours had been violated.
Cofeposa authorises the “preventive detention’’ of smugglers by agencies without trial in a court of law.
Harnish Ghutla, served a one-year detention order by the home department in January, had been lodged at the Arthur Road jail since then. His father Prabhudas Ghutla approached the high court and said Harnish was picked up from his hometown, Veraval in Gujarat, on January 3 and kept in “illegal custody” till the evening of January 5 when he was served the detention order by an officer from Department of Revenue Intelligence (DRI).
Harnish was neither given access to legal counsel nor produced before a magistrate in the ensuing period. A division bench of Justice B H Marlapalle and J H Bhatia said, “...the detention order is vitiated on this sole ground and therefore it deserves to be quashed on this ground alone’’.
Prabhudas had argued that Harnish was innocent and worked as just a driver with the two main accused involved in gold and diamond smuggling. But the court did not agree and held that Harnish was “a runner for the main smuggler and was familiar with the game of smuggling’’.
The court was also told that though Harnish was first arrested in Mumbai in March 2007 and later released on bail, the home department took nine months to pass the detention order, “belatedly and leisurely’’. The court rejected this argument, too, and said that such a delay could not be grounds for his release.
The only fact that worked in Harnish’s favour was that his fundamental right, to be produced before the nearest magistrate within 24 hours of his arrest, was violated. The Veraval police kept him in custody and waited for the DRI official to arrive with the detention order two days later.
CID officials said there was a delay in tracing Harnish because he had given a Mumbai address but gone to Gujarat. But The HC did not buy this argument and set Harnish free on Wednesday.