In this petition, the petitioner happens to be the real brother of the detenue- Hardeep Singh, who had been originally arraigned as an accused in FIR No.345 dated 28.11.2019 registered at Police Station Sadar Dhuri, under Sections 22 , 27 and 29 of Narcotic Drugs and Psychotropic Substance Act, 1985.

[2] The above said detenue was granted interim protection by way of an order passed, by this Court, on 15.01.2020, in his petition being CRM- M-54369 of 2019 filed under Section 438 of the Cr.P.C to seek anticipatory bail. Such anticipatory bail petition is still pending and is now reported to be listed on 28.09.2020 before this Court.

[3] In the meantime, the Judge, Special Court, Duty Officer, Sangrur vide the impugned order dated 10.01.2020 ordered for taking the petitioner into Judicial custody, on account of the fact that challan had been presented against the co-accused Jatinder Singh, who had been granted interim bail by this Court on 07.02.2020, but the FSL report had already been received.

[4] Perusal of the order passed by this Court in CRM-M-54369 of 1 of 5 ::: Downloaded on - 27-09-2020 16:06:48 ::: CRWP No.4926 of 2020 -2- 2019, concerning the detenue-Hardeep Singh, however, nowhere mentions about the requirement of the FSL report. On the contrary, he had been granted interim protection only in view of the fact that his name had transpired from the disclosure statement of the co-accused. The said anticipatory bail petition is still pending. As in such a situation, the Ld. Court below undoubtedly passed a patently illegal order exceeding its jurisdiction by directing incarceration of the petitioner though already on interim anticipatory bail granted by this Court, which has yet not been revoked.

[5] Reliance has been placed on the decisions of the Supreme Court in " Home Secretary (Prison) and others Vs. H. Nilofer Nisha , 2020 (1) ALT (Crl.) 263" wherein, it has been observed inter alia that:-

[6] While considering the question whether a writ in the nature of Habeas Corpus in such a situation where a person was taken into custody on the basis of an illegal order passed by a Magistrate, exceeding his jurisdiction was maintainable, the Karnataka High Court in " Mrs. Sudha Shivarame Gowda Vs. State of Karnataka reported in 1993 CriLJ 1533"

2 of 5 ::: Downloaded on - 27-09-2020 16:06:48 ::: CRWP No.4926 of 2020 -3- accused or a prisoner in custody or any one of their relatives to seek a writ in the nature of habeas corpus and such a writ can be issued if it is proved that the custody is not authorized custody and it is unauthorized. We may also point out that unlike the other writs, writ of habeas corpus is not controlled by any technical objection or limitation. The jurisdiction to issue writ of habeas corpus is wider and the limitations that are placed against the issue of writs of other nature would not apply to a writ of habeas corpus because personal liberty with which it is concerned is given utmost importance. Therefore, whenever a citizen or a person approaches this Court alleging that personal liberty of a person or citizen is unauthorisedly curbed, this Court cannot refuse to look into that petition, but find out as to whether the grievance of the petitioner is justified in law or not....."

[7] Similarly, a Division Bench of Madras High Court in " Tamizharasi and another Vs. Assistant Director NCB reported in 1996 CriLJ 208", had also observed that:-

3 of 5 ::: Downloaded on - 27-09-2020 16:06:48 ::: CRWP No.4926 of 2020 -4- are not inclined to accede to the argument of Mr. Asokan, that since the Special Court had chosen to decline the plea for bail made by these two detenues on default made by the prosecution, the remedy, if any, cannot be through issue of a habeas, but only through a petition invoking the inherent powers of this Court, under Section 482 of the Code of Criminal Procedure. Once it is evident that the Magistrate had no power to extend remand, on the expiry of 90 days on default committed by the respondent, moreso, when they were prepared to furnish bail, further incarceration will have to be necessarily held to be illegal. In that event, seeking issue of habeas', for release from illegal detention will be a just and proper remedy, which cannot be refused merely because an alternate remedy could also have been chosen. Illegality of detention would certainly entitle these two detenues to invoke out constitutional powers for issue of a habeas. On the facts available, application of proviso to Section 167(2) of the Code of Criminal Procedure, 1973 these two detenues will be entitled to be released on bail while directing release on bail, of these two detenues, certain conditions will have to be imposed, for their availability, for the further processing of the prosecution case. "

4 of 5 ::: Downloaded on - 27-09-2020 16:06:48 ::: CRWP No.4926 of 2020 -5- remain on such interim anticipatory bail till the next of hearing, in the said case.