028-NLR-NLR-V-64-A.-M.-AVAUMMAH-Petitioner-and-V.-F.-SOLOMONSZ-Respondent.pdf
Avaurrvmah v. Solomonsz
167
1962Present : Herat, J.
A. M. AVAUMMAH, Petitioner, and V. F. SOLOMONSZ, Respondent
S. C. 250 of 1962—In the matter of an Application for the issue of aMandate in the nature of a Writ of Habeas Corpus under Section 6 of
the Courts Ordinance
Habeas corpus—Detention of a person by an executive officer of the Crown-Scope ofthe officer's right to plead in justification an order of another officer—Immigrantsand Emigrants Act (Cap. 351), s. 28 (2).
In an application for a Writ of Habeas Corpus made in respect of a personwho was averred to be unlawfully detained by an officer-in-charge of a PoliceStation under an order made by the Permanent Secretary to the Ministry ofDefence and External Affairs under section 28 (2) of the Immigrants andEmigrants Act—
Held, that when the detention of a person by an executive officer of the Crownis challenged as illegal by way of a Writ of Habeas Corpus, it is not a sufficientanswer to justify that alleged detention by merely saying that the respondentis holding the corpus under an order made by some other executive officer ofthe Crown. In such a case it is necessary for the respondent to satisfy theCourt as to the legality of the order under which he purports to detain thecorpus.
108
HERAT, J.—Avctummah v. Solomonsz
j/V PPLICATION for a Writ of Habeas Corpus.
M. Tiruchelvam, Q.C., with V. Kumarastoamy, for the Petitioner.
S. Pasupati, Crown Counsel, for the Respondent.
May, 15, 1962. Herat, J.—
This is an application for a Writ of Habeas Corpus made by the wifeof the person who is averred to be unlawfully detained. The respondentto. the application is one Mr. V. F. Solomonsz, officer-in-charge of thePolice Station at Slave Island. The petitioner alleges that the corpus,her husband, is unlawfully detained. The matter came up towards theend of last term and it was directed that it should be listed at the earliestopportunity during the present term.
The respondent has filed an affidavit to the effect that he is holdingthe corpus under an order m&de by the Permanent Secretary to theMinistry of Defence and External Affairs under section 28(2) of the Immi-grants and Emigrants Act, Chapter 351. Learned Crown Counsel arguesthat that is a sufficient matter to discharge tha respondent from producingthe corpus and cites in support the dictum of Mr. Justice T. S. Fernandoin the case reported in 58 N. L. R. at page 87. With the greatest respectI cannot agree with that dictum. In my opinion, when the detentionof a person by an executive offeer is challenged as illegal by way of aWrit of Habeas Corpus, it is not a sufficient answer to justify that allegedillegal detention by merely saying that the respondent is holding thecorpus under an order made by some other executive officer of the Crown.It is necessary for the respondent who is but a servant of the Crown, tosatisfy this Court as to the legality of the order under which he purportsto detain the corpus. No such effort has been made in this particularcase so that without saying anything further, the prima facie case ofillegal detention averred in the petition is not met.
I therefore hold that the detention of the corpus is illegal and that heshould be forthwith released. I allow the application and grant theprayer in the petition. The petitioner is entitled to the costs of thisapplication.
The respondent, Inspector Solomonsz, is here and I order him to releasethe corpus forthwith as I have declared his detention illegal. Thecorpus is free now to leave this Court wheresoever he pleases.'
Application allowed.